New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
The gun nuts in our parliament
Of course David Leyonhjelm is troubled by what happened in Las Vegas two weeks ago, when Stephen Paddock, with his arsenal of 23 guns and thousands of rounds of ammunition, carried out America’s worst modern-day mass killing. Of course he finds it “disturbing”.
From a distance of several hundred metres, high in the Mandalay Bay casino, Paddock’s high-powered guns unloaded on a crowd of concertgoers at a rate of nine rounds a second. Fifty-nine people died, including the gunman, and more than 500 were injured.
“Dreadful,” says the Liberal Democrat senator for New South Wales and foremost gun rights advocate in federal parliament.
But Leyonhjelm is certainly not about to endorse those in America who are arguing, yet again, that the United States should look to Australia as the prime example of effective gun policy. Quite the reverse. He would have us be more like them.
Or perhaps, we should say, even more like them. The fact is that Australian gun laws, generally considered the strongest in the world when the National Firearms Agreement (NFA) was introduced in the wake of the Port Arthur massacre 21 years ago, were never fully complied with by the various states, and have been whittled away since.
They are still probably the world’s most comprehensive, but there has been significant backsliding under the relentless pressure and political donations of the gun lobby. There has also been the election of more parliamentarians of the ilk of Leyonhjelm – who quit the Liberal Party in 1996 because of John Howard’s post-Port Arthur gun law reforms – and the preparedness of major parties to trade firearm safeguards for support for other parts of their legislative agendas. Depending on the result of the upcoming Queensland general election, and a couple of byelections in New South Wales, things could get significantly worse.
As detailed in a comprehensive review of current Australian gun legislation, released last week by Gun Control Australia, various states have made many exceptions to the laws, and “each exception to the NFA arguably opens the door to further dilution of the national agreement, as flagged on a regular basis by interest groups and politicians catering to firearm owners. Attempts to undermine and circumvent the provisions of the NFA are persistent, and have often been successful.”
Disturbing though Paddock’s actions were, Leyonhjelm sees in them no argument for more stringent controls on guns. “He could have killed them all equally as much with a bomb and explosives of various kinds. It wouldn’t necessarily have involved a gun to achieve that level of casualties,” he says.
“You can cause a great deal of harm with all kinds of guns. You can reload a single-shot rifle quite quickly,” the senator says, seguing into an anecdote about how fast World War I soldiers got at reloading.
The real issue is not the firepower involved, he says. It’s the mentality of the shooter.
That’s why he and his party support licensing gun owners. “And we get criticised in libertarian circles because we support the idea,” Leyonhjelm says. “But you do need to keep the guns out of the hands of people who are dangerous.”
The onus, he says, should be on the government to show why someone should not be entitled to a gun, rather than on them to show why they should.
“We don’t regard gun ownership as a privilege. We regard it as a right, which you can lose. And once a person is licensed … it makes very little difference what kind of gun they’ve got.”
Really? Would he put no restrictions on what weaponry people might own?
“We wouldn’t argue for rocket launchers or rocket-propelled grenades, for example,” he says, straight-faced, “but we would argue for anything that has a sporting purpose.”
That would include pistols, semi-automatic and fully automatic weapons.
“There’s no sound reason on the basis of potential harm for regulating them. You regulate the person,” he says. “There are dangerous people, not dangerous guns.”
Leyonhjelm would not regulate the person very much, however. He has no problem with Australians carrying guns in public, as many Americans already do. Or packing other weapons, for that matter, like “pepper spray, mace, a personal Taser, knife, something like that”.
“I would applaud that. The potential victim should have every right to defend themselves,” he says.
Leyonhjelm is the full National Rifle Association, Second Amendment package. He would fit right in among the scores of like-minded Republicans in the US senate, except he is in the Australian senate. In the anteroom to his Sydney office, otherwise devoid of decoration, is a small plaque etched with America’s Statue of Liberty superimposed on Australia’s Southern Cross, pronouncing him “Australian Libertarian of the Year, 2014”.
By drawing on little factoids about gun regulation around the world, he can make a persuasive case. Until you check the claims against the empirical data.
Leyonhjelm argues, for example, that notwithstanding the extraordinary number of privately owned guns in the US – more than one for every citizen – most of the country is not very dangerous. Take out some of the places with very high rates of gang crime – such as Chicago, Washington DC, Detroit, New Orleans – and “their murder rates are no higher than other countries, including ours,” he says.
“A state like Vermont, which has practically no gun laws at all – their murder rate is no higher than Australia’s.”
And that’s true. The snowy, sparsely populated New England state does not have a lot of murders. But that does not mean it is safe. When you check the data you find the overall rate of gun deaths is actually a little higher in Vermont than the US as a whole, and more than nine times higher than Australia. That’s because people in Vermont use their unlicensed pistols and long guns to kill themselves in exceptionally high numbers.
The Czech Republic, says Leyonhjelm, “has concealed carry, the same as America. You can get a gun for self-defence and yet the Czech Republic’s murder rate is no higher than Australia’s.”
Again he speaks a limited truth. The homicide rate is about the same there as in Australia, as is the suicide rate. But overall gun deaths are twice as high, because the Czechs, free to wander about packing guns, shoot themselves and others a lot by accident.
“In Switzerland,” says the senator, “shooting is more popular than golf. There are shooting ranges all over the place. Yet their murder rate is no higher than Australia’s. You can even get fully automatics in Switzerland.”
In truth, however, the rate of gun deaths there is about three times that of Australia. The homicide rate is about twice as high and suicide about four times as high.
“New Zealand’s gun laws are far more relaxed than Australia’s and yet they don’t have a murder rate any higher than us. Canada also,” he says.
But the rate of gun death in New Zealand is 50 per cent higher than it is here, and in Canada it’s more than twice as high.
One wonders where Leyonhjelm gets his statistics. The numbers we have used come from a comprehensive database put together by Philip Alpers and Amélie Rossetti, the same people who wrote this week’s review of the state of Australia’s gun laws, 21 years after Port Arthur.
It makes for sober reading. It says that “four consecutive formal reports have now found that no Australian state or territory has at any stage fully complied with the 1996 or 2002 firearm resolutions which collectively formed the National Firearms Agreement”.
Worse, the report finds: “two decades of political pressure have steadily reduced restrictions and undermined the NFA’s original intent”.
The report runs to more than 100 pages, so we can only touch on a few of what it calls the “standout” examples. Top of the list is this:
“Despite the NFA requirement that all applicants for a licence be at least 18 years of age, every State and Territory allows minors to possess and use firearms. The licensing age for children varies from 10 to 16 years, and at club shoots, Western Australia stipulates no minimum age at all.”
There are other, more worrying findings. Among them, that NSW allows the use of silencers for guns, Victoria places no limit on the quantity of ammunition that can be bought, South Australia permits the use of fully automatic and self-loading firearms, Queensland’s provisions for the proof of identity for a gun purchaser are lax, and Western Australia requires no safety training except for handguns and does not limit gun sales to licensed dealers.
Examples of the states’ failures to comply with the agreed provisions of the national agreement go on and on. Yet Alpers, adjunct associate professor at the Sydney University School of Public Health, who reckons he has read and analysed “most of the gun laws of the world, 350 jurisdictions including all the US states and territories”, says Australia still has the most comprehensive suite of measures anywhere.
The “three pillars” of the laws introduced by then prime minister John Howard after the 1996 Port Arthur massacre – in which 35 people were killed and more than 20 others wounded – are still standing. Those are licensing the gun owner, registering the gun and making the use of the weapon not a right but a conditional privilege.
“One of the most important elements of the Howard gun laws was that you must prove a genuine reason for having a gun. Self-defence is not a legitimate reason,” Alpers says. “Those are the three things America decided not to have.”
Notice the aspect of the 1996 action that Alpers does not mention as being particularly important: the gun buyback that removed about a million guns.
The reality is that by mid-2012, the number of guns in Australia had returned to pre-Port Arthur levels. This occurred because 1,055,082 firearms have since been imported, at an average of 43,961 a year since destruction programs began.
But while the number of guns bounced back, the number of deaths due to guns did not.
“The risk of dying by gunshot dropped more than 50 per cent immediately after Port Arthur and has stayed there ever since,” Alpers says. “I have come firmly to the belief that the buyback, even though it made all the headlines and is attributed all around the world as the key to the success in Australia, was less important than the other things implemented at the same time.”
Likewise, he holds that the most significant result of Australia’s gun law changes is not the one that American gun law reform advocates are again focused on, since Las Vegas – that Australia has had no mass shootings in 21 years.
“Mass shooting are the rarest events,” he says. “We can say it’s very encouraging, that there were 104 people shot in the few years before and during Port Arthur in mass shootings, and zero since then. But 90 per cent of gun deaths have nothing to do with crime. They are suicides and unintentional shootings.”
The other big shift since the 1996 gun laws came in, he says, is in the proportion of households with guns, which is down about 75 per cent.
“The person most at risk from a gun in the home is somebody in the home,” Alpers says.
These are big gains, but there is no cause for complacency, he says, “for every single state has seen shooters’ organisations using the NRA model of whittling away at governments to change state law, and undermine the basic agreement that underlay the NFA”.
Figures culled from Australian Electoral Commission returns and released by Gun Control Australia in February show the gun lobby had donated more than $350,000 to political parties in 2015-16, at a time when there was intense political debate about the import of the controversial Adler lever-action shotgun.
Pro-gun minor parties were disproportionately big beneficiaries: Katter’s Australia Party got $108,000; the Shooters, Fishers and Farmers Party about $104,000; and Leyonhjelm’s Liberal Democratic Party more than $35,000.
That’s big money for little parties, but not much in the great pool of cash devoted by vested interests to currying favour. The bigger threat lies in the political horsetrading the big parties are prepared to do to win support from these fringe players.
David Shoebridge, a Greens MLC who has watched and opposed these deals over many years, cites some examples.
He says the former NSW premier Bob Carr “used to sit down on a weekly basis with John Tingle, the first Shooters Party MP”.
Under Carr, NSW established and funded an organisation called the Game Council, which Shoebridge describes as “a quasi-state government authority actually entirely run by the gun lobby”. Its former chairman, Robert Borsak, is now a member of parliament with the Shooters Party.
The Game Council kept the Shooters sweet under Labor, but when the conservatives won government in 2011, they also cut deals.
Shoebridge cites one particularly brazen example: “The Coalition allowed hunting in national parks in return for the Shooters’ support for privatising the ports.”
Then, in 2013, acting chief executive of the Game Council, Greg McFarland, came under police investigation for hunting on private property near Cobar, without permission, in a Game Council-owned vehicle. He was subsequently charged with a number of offences, including hunting without permission, possessing a prohibited weapon in a nature reserve, and firing a firearm onto enclosed land. When he went down, so did the Game Council.
“We had wanted to be rid of them for years,” Shoebridge says. “But really they self-destructed. And by that time [the Liberal premier] Barry O’Farrell was sick of them. The Shooters were trying to strongarm the government, and sowing division within the National Party, plus public opinion had turned strongly against previous deals done on hunting in national parks.”
The final act of political cynicism, he says, came when Labor voted against abolishing the council, making the “appalling, specious arguments that the Game Council was a union for hunters”.
It’s a hypocritical business. This weekend, there will be two byelections in rural NSW state seats, formerly held by the Nationals. Labor has decided to allocate its preferences to the Greens first, and then to the Shooters Party. This is despite previous trenchant criticism by Labor of the Shooters’ “extreme” policies on gun laws. There is no principle in the decision; it is solely intended to damage the NSW Coalition government.
Other threats to the integrity of Australia’s gun laws also loom. The upcoming Queensland election might well result in a minority Liberal National Party government reliant on the support of Pauline Hanson’s One Nation.
If that happened, Shoebridge says, he fears for the future of that state’s firearms register. “Half-a-million guns could fall into a black hole,” he says.
Hanson explicitly rejects the National Firearms Agreement. She promises to review various weapons acts “within the first year of forming government”.
In a 21-point plan for more relaxed gun legislation, she promises to recognise “as a matter of principle, licensed firearm ownership by law-abiding citizens is a right in a free society”. She promises to reduce mandatory waiting times for the purchasing of handguns, lessen controls on ammunition purchases and remove the “genuine reason” test for gun ownership. She also promises to reduce policing of gun ownership.
Gun legislation in this country is the subject of constant compromise. Despite the bravery of Howard and then Nationals leader Tim Fischer in their crackdown on guns, the issue has been fiddled with and traded on for votes ever since.
The Greens maintain a website, Toomanyguns.org, that allows people to enter their NSW postcode and find out how many gun owners and guns there are in their area. In the postcode where David Leyonhjelm lives, there are 11,374 residents, of whom only 108 own guns.
That’s very much at the low end of the scale. One person, however, owns 39. It’s not Leyonhjelm: he has only 10.
This article was first published in the print edition of The Saturday Paper on Oct 14, 2017 as "The gun nuts in our parliament".
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