A Constitutional and Legal Counter to the NSW Gun Confiscation Scheme (Part 2)

 The NSW gun "buyback" is a confiscation scheme dressed in the language of cooperative federalism. Owners caught by the new numerical limits are not ordinary sellers voluntarily accepting a government offer. They face a legislative choice: dispose of firearms that were previously lawfully possessed, surrender them under the government scheme, or ultimately risk unlawful possession.

That was already enough to raise serious questions about property rights and compensation. But the constitutional position is more interesting than it first appeared. This is not merely a NSW confiscation program to which Canberra has casually agreed to contribute money. The Commonwealth Parliament has itself legislated a "National gun buyback" in the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026. The Commonwealth Act creates the legislative architecture under which approved State compensation schemes participate in a national firearms program and receive Commonwealth reimbursement.

That does not automatically make every surrendered NSW firearm a direct Commonwealth acquisition. The States remain responsible for collecting surrendered firearms and paying their owners. But it makes the constitutional question much sharper. The Commonwealth has legislated for the national program; State compensation schemes must support that program and receive Commonwealth ministerial approval; and Commonwealth money reimburses participating States.

The central question is therefore no longer merely whether Canberra happens to be helping NSW pay its bills. It is whether the Commonwealth has become sufficiently legally involved in the architecture of compulsory surrender and compensation that the constitutional requirement of "just terms" in s 51(xxxi) cannot be avoided simply by putting the State between Canberra and the firearm owner.

That is a question worth taking to court.

Confiscation at a Government-Determined Price

After the Bondi Beach terrorist attack in December 2025, New South Wales amended its firearms legislation to impose hard numerical limits upon firearm ownership, together with reclassifications and other restrictions. Generally, most licence holders are restricted to four firearms, while primary producers, pest controllers and certain sporting shooters may hold ten, subject to qualifications and exemptions.

The consequence for owners who previously acquired their firearms legally is obvious. Parliament has changed the rules after the property was acquired.

The National Gun Buyback Scheme then provides the mechanism through which affected firearms can be surrendered for government-determined compensation. Phase 1 is scheduled to commence on 2 November 2026, with fixed payments including $1,000 for a revolver or centrefire rifle, $850 for a semi-automatic handgun or double-barrel shotgun, $650 for a single-barrel shotgun, $600 for a rimfire and $450 for an air rifle. A later valuation process is proposed for more valuable firearms, subject to limitations.

For some inexpensive firearms these payments may be reasonable. For quality sporting rifles, competition firearms, specialised working firearms and collectible examples, they can be substantially below genuine market value.

That distinction matters because this is not an ordinary purchase. If somebody offers an owner $1,000 for a $4,000 rifle, the owner normally says no. Government is fundamentally changing that bargaining relationship when legislation itself creates the necessity for disposal.

Calling the resulting transaction a "buyback" does not determine its legal character.

Canberra is Actually in the Legislation

This is where the constitutional argument becomes considerably stronger than a simple complaint about Commonwealth funding of a NSW program.

The Commonwealth Parliament passed the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026. Schedule 2, Part 1 is expressly headed "National gun buyback." The Act describes itself as legislation creating a scheme to buy back firearms.

The parliamentary materials are equally revealing. The Parliamentary Library described the legislation as establishing a National Gun Buyback Scheme to purchase surplus and restricted firearms. More importantly, the explanatory material describes a coordinated national framework under which the Commonwealth provides financial assistance to the States by reimbursement, while States collect the firearms, process them and make the immediate payments to owners.

The distinction is important. The Commonwealth Act does not appear simply to say: "Here is some money, NSW; spend it as you wish."

A State compensation scheme must support the national firearms program. The AFP Minister has a statutory role in approving the State compensation scheme. Commonwealth reimbursement then operates within that statutory structure. The national firearms program itself is connected to commitments made through National Cabinet concerning firearms licensing and reducing the number of firearms in the community.

Consequently, Canberra cannot be written out of the picture as merely an interested spectator carrying a cheque book.

The Commonwealth Parliament created the national legislative framework.

The next question is how far that involvement goes.

Section 51(xxxi): The Constitutional Problem

Section 51(xxxi) of the Commonwealth Constitution empowers the Commonwealth Parliament to make laws concerning:

"the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."

There are two critical elements.

First, there must be an acquisition of property, not merely regulation or deprivation.

Second, the constitutional limitation applies to Commonwealth legislative power. It does not impose a universal just-terms requirement upon NSW Parliament.

The second point has traditionally looked like the escape hatch. NSW can regulate and even acquire property without being subject to precisely the same constitutional limitation that constrains Canberra.

But the Commonwealth cannot necessarily overcome its own constitutional limitation merely by constructing an intergovernmental mechanism in which a State performs the final act.

That is where the High Court cases become critical.

Magennis: Canberra Cannot Necessarily Hide Behind NSW

The obvious starting point is P.J. Magennis Pty Ltd v Commonwealth [1949] HCA 66.

The Commonwealth and NSW had established a soldier-settlement arrangement under which NSW would acquire property according to compensation provisions connected with historical values. The Commonwealth legislated to authorise the intergovernmental arrangement.

The High Court would not allow the Commonwealth to escape s 51(xxxi) merely because NSW was the government immediately acquiring the land.

The constitutional significance for the gun scheme should be obvious. If Commonwealth legislation itself required owners to surrender firearms to Canberra for substantially less than their value, s 51(xxxi) would immediately loom large. The Commonwealth cannot necessarily achieve constitutionally forbidden terms simply by arranging for NSW to stand at the surrender counter.

But Magennis is only the beginning.

Pye v Renshaw: The Government's Strongest Answer

The government's answer begins with Pye v Renshaw [1951] HCA 8.

After the constitutional problem exposed in Magennis, NSW legislation capable of operating independently of the Commonwealth arrangement survived. That illustrates an essential distinction. Commonwealth participation does not automatically convert every State acquisition into a Commonwealth acquisition.

The governments will therefore say that NSW enacted its own firearms legislation pursuant to State legislative power. NSW determines which firearms its residents may lawfully possess. NSW receives surrendered firearms. NSW pays compensation. Commonwealth involvement merely provides national coordination and financial assistance.

If that is all the evidence ultimately establishes, a constitutional challenge becomes substantially harder. But the Commonwealth Act means the inquiry cannot simply stop there.

ICM Agriculture: Commonwealth Grants Have Limits

ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, is particularly important because it directly considered the relationship between Commonwealth financial assistance to States and s 51(xxxi).

The High Court considered Commonwealth–State funding arrangements concerning water entitlements and addressed whether Commonwealth financial powers could be used in connection with State acquisitions on other than just terms. The case confirms that the interaction between s 96 financial assistance and s 51(xxxi) is a genuine constitutional issue rather than something eliminated merely by describing the immediate legislation as State law.

That brings the gun scheme directly into focus:

What precisely must NSW do to obtain Commonwealth reimbursement?

What does Commonwealth ministerial "approval" of a State compensation scheme involve?

Can the Commonwealth Minister reject a State scheme because its compensation structure differs from the nationally agreed model?

Who established the fixed compensation schedule?

Were the prices negotiated through National Cabinet?

Did Canberra approve those prices?

Was the Commonwealth's financial contribution calculated using them?

Could NSW decide tomorrow to pay every owner independently assessed market value and still receive precisely the same Commonwealth support?

Those are not peripheral questions. They may determine the constitutional character of the arrangement.

Spencer: Follow the Paper Trail

This is why Spencer v Commonwealth [2010] HCA 28 may become particularly important.

Peter Spencer alleged that Commonwealth and NSW governmental arrangements concerning land clearing had effectively produced an acquisition of property without just terms. The High Court case concerned summary dismissal rather than ultimate determination of his constitutional claim. Nevertheless, the Court held that the proceeding could not simply be disposed of on the basis that it had no reasonable prospect of success, particularly following ICM.

The lesson for firearms owners is straightforward.

Follow the government paper trail.

A serious challenge needs the Commonwealth–NSW funding agreement, AFP Minister's approval of the NSW compensation scheme, Commonwealth financial determinations, departmental correspondence, National Cabinet material insofar as legally obtainable, Treasury costing documents, drafts of compensation schedules and communications between NSW and Commonwealth officials.

The decisive evidence may not be found in the public speeches announcing the buyback. It may be sitting in correspondence between public servants.

Suppose the documents show this:

Canberra and NSW jointly negotiate the surrender prices. NSW adopts those prices. Commonwealth approval depends upon adherence to the nationally agreed compensation model. NSW compulsorily obtains the firearms. Canberra reimburses half the compensation calculated according to that model.

That would present a substantially more formidable Magennis/ICM argument than merely saying that Canberra contributed money to an independent NSW program.

Conversely, suppose the documents show NSW independently established the surrender obligation and prices, after which Canberra simply approved reimbursement without attempting to dictate compensation.

That strengthens the government's Pye argument. This is why discovery and document production could be central to the case.

The Commonwealth Act Changes the Debate

The existence of the Commonwealth legislation therefore matters enormously even though it does not appear to make Canberra the immediate purchaser of every firearm.

The Parliamentary Library's account of the legislation says that the Commonwealth framework provides compensation through a coordinated national arrangement in which States collect firearms and pay owners while Canberra reimburses State expenditure. The Commonwealth legislation also gives the AFP Minister power to approve participating State compensation schemes.

That creates a much tighter statutory connection than the expression "Commonwealth funding" suggests.

It also produces an awkward political and constitutional tension.

When governments advertise the policy, it is a National Gun Buyback Scheme.

When Commonwealth Parliament legislates, it legislates for a National gun buyback.

When compensation is funded, Commonwealth money is involved.

When State schemes participate, Commonwealth ministerial approval is involved. When the objective is described, reduction in national firearm numbers is involved.

But if s 51(xxxi) becomes inconvenient, government lawyers can be expected to emphasise that the actual confiscation is purely an exercise of NSW power.

Perhaps the High Court will accept that distinction. But it should be required to examine the substance of the arrangement before doing so.

There is Still an "Acquisition" Problem

Gun owners should nevertheless resist the temptation to oversell their constitutional case.

Section 51(xxxi) does not apply merely because somebody has lost property.

High Court doctrine distinguishes deprivation from acquisition. Ordinarily there must be some corresponding proprietary benefit or advantage obtained by another party. That was itself an important issue in ICM. This becomes significant if surrendered firearms are simply destroyed.

The Commonwealth and NSW could argue that government does not acquire the owner's former property interest for governmental use; rather, legislation extinguishes that interest and the physical firearm is destroyed. That argument needs a serious answer; my opinion is that acquisition still occurs for the purpose of destruction. Before destruction, title has passed by acquisition and what then happens is irrelevant from a property law perspective. One, in principle could buy an item, only to destroy it; the act of destruction does not negate the transfer of title. That's my opinion, but something like this needs to be made and argued for firsthand.

Counsel should examine exactly when title passes, who legally obtains possession and ownership following surrender, what statutory rights government acquires over the firearm, and whether those rights constitute the necessary proprietary benefit before destruction occurs.

The legislation and surrender documentation therefore matter enormously. It is better to confront the acquisition requirement directly than to assert incorrectly that every compulsory destruction automatically satisfies s 51(xxxi).

Attack the Regulations and Instruments Too

Nor should firearms owners assume that everything depends upon winning a constitutional case in the High Court.

The subordinate legislation and executive instruments implementing the NSW scheme need forensic examination.

Regulations cannot exceed the statute authorising them.

If NSW legislation delegates power concerning compensation, valuation, exemptions or numerical limits, lawyers should ask exactly what Parliament authorised.

Does the empowering legislation permit radically different firearms to receive identical fixed compensation?

Does it authorise a $10,000 valuation ceiling?

Does it authorise charging the owner a valuation fee?

What considerations must decision-makers take into account?

What discretion remains?

If executive instruments exceed the power conferred by Parliament, an ultra vires challenge may succeed without establishing that the entire firearms regime is unconstitutional. Sometimes the narrow argument is the dangerous one.

Challenge Administrative Decisions

The same applies to individual decisions. Where legislation confers discretion upon the Commissioner concerning exemptions or greater numerical limits, that discretion must genuinely be exercised.

An administrator cannot ordinarily receive a discretionary statutory power and secretly convert it into an absolute rule that applications of a particular kind will never succeed.

Depending upon the legislation and facts, individual decisions could potentially be attacked for jurisdictional error, misconstruction of statutory power, failure to consider mandatory considerations, procedural unfairness, fettering of discretion or legal unreasonableness.

Removing or restricting NCAT merits review does not necessarily extinguish the NSW Supreme Court's supervisory jurisdiction for jurisdictional error.

Firearms organisations should therefore begin documenting decisions from day one. A pattern of apparently automatic refusals could eventually be important evidence.

Property Rights and the Principle of Legality

There is also the principle of legality. Australian courts traditionally presume that Parliament does not intend to interfere with fundamental common-law rights, including property rights, more than its language clearly requires.

This principle cannot defeat unmistakable legislation. Courts cannot invent a constitutional right to own firearms that Australia does not possess.

But ambiguity remains important. Transitional arrangements, estates, collections, dealer holdings, pending transactions, exemptions, interstate disposals and valuation procedures should all be scrutinised closely.

If Parliament intends to confiscate previously lawful property, government should at least be required to demonstrate clear statutory authority for precisely what it proposes to do.

Section 92 Should Be Examined, But Not Oversold

There may also be an interstate-trade question under s 92 of the Constitution. Imagine an NSW owner possesses a $6,000 firearm that can lawfully be sold to an eligible purchaser interstate, but the legislation prevents that transaction and instead forces surrender for $1,000. That deserves examination.

But s 92 should not become the centrepiece of litigation. Modern doctrine concentrates heavily upon discriminatory burdens of a protectionist character. A generally applicable firearms regulation enacted for public safety purposes is not unconstitutional merely because it interferes with interstate commerce.

Still, counsel constructing a comprehensive challenge should determine whether the final regime discriminates against interstate disposal, purchasers or dealers.

Find the Right Plaintiff: The Standing Issue

Perhaps the most important practical decision is choosing the plaintiff. Do not make this litigation about an eccentric gun owner with licensing disputes, criminal allegations or a history of confrontations with police. Find the mainstream plaintiff.

Find someone who has held a firearms licence for decades, complied meticulously with storage and registration requirements, has no relevant criminal history and possesses firearms rendered excess solely because Parliament changed the numerical rules.

Then establish the loss objectively. Purchase invoices. Dealer quotations. Insurance valuations. Auction results. Independent expert valuations.

Suppose an owner has $30,000 worth of previously lawful firearms for which the government schedule produces $8,000. Now the constitutional question is stripped of distracting politics.

The plaintiff obeyed every law. Government changed the law. Government requires the property to be surrendered or otherwise disposed of. The statutory national scheme pays substantially below demonstrated market value.

That is the case to take forward, so that the case is not rejected on standing grounds as so often happens with controversial litigation.

Don't Pretend Australia Has a Second Amendment

None of this creates an Australian constitutional right to keep and bear arms. There isn't one.

Nor does every unfair law become unconstitutional. NSW possesses extremely broad legislative power concerning firearm ownership. Parliament can impose severe restrictions that many firearm owners regard as irrational or unjust.

The constitutional argument is narrower. The Commonwealth itself is constrained by s 51(xxxi). It cannot acquire property except upon just terms where that constitutional provision applies.

The question therefore is whether Commonwealth Parliament has constructed and financed a national firearms program in which State governments perform acquisitions sufficiently connected to Commonwealth legislative action that the Commonwealth constitutional limitation becomes engaged.

Magennis says State machinery cannot necessarily provide an escape.

Pye demonstrates that genuinely independent State legislation can.

ICM demonstrates the constitutional significance of Commonwealth–State financial arrangements.

Spencer demonstrates why alleged intergovernmental arrangements and their factual operation cannot necessarily be dismissed without proper examination.

And now there is something still more concrete: an actual Commonwealth statute expressly establishing the legislative framework for a National gun buyback, under which participating State compensation schemes require Commonwealth ministerial approval and receive Commonwealth reimbursement. That is enough to justify serious constitutional investigation.

The Gun Community Needs to Get Its Act Together

The NSW gun community should therefore stop thinking about this solely as a political lobbying exercise. Potential plaintiffs should be identified now. Valuation evidence should be preserved now. Commonwealth and State documents should be pursued now. The Commonwealth Act, NSW legislation, regulations, ministerial instruments, compensation schedules and funding arrangements should be placed side by side and analysed provision by provision.

And the first document counsel should read is now obvious. It is Schedule 2, Part 1 of the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026.

Then counsel should obtain and examine the Commonwealth ministerial approval of the NSW compensation scheme and the instruments governing Commonwealth reimbursement. Next comes the NSW legal instrument establishing the compensation schedule. Then the documentary trail behind those instruments.

The key factual question is simple:

Who actually designed the compensation scheme, and upon what conditions does Commonwealth money flow?

If NSW genuinely made those decisions independently, the government's constitutional position is considerably stronger.

If the evidence instead shows that Canberra helped determine the compensation structure, required or approved the relevant terms, legislated the national architecture and reimbursed NSW for implementing it, the proposition that this is merely an independent State confiscation becomes increasingly difficult to sustain.

That still leaves the technical constitutional requirement of establishing an "acquisition" rather than mere deprivation. It leaves difficult questions about the precise reach of Magennis, Pye, ICM and Spencer. Nobody should promise firearm owners an easy High Court victory.

But neither should they accept the equally simplistic proposition that s 51(xxxi) is irrelevant merely because NSW takes possession of the gun.

Commonwealth Parliament has put itself into this scheme. Commonwealth legislation calls it a national gun buyback. Commonwealth legislation establishes the reimbursement architecture. Commonwealth ministerial approval sits within that architecture. The extent of Commonwealth involvement in compensation remains a factual and legal question that deserves close examination.

If Canberra has lawfully funded an independent NSW regulatory scheme, the courts will say so. But if the Commonwealth has constructed a national acquisition program and used State legislation as the final mechanism for obtaining privately owned firearms while avoiding the just-terms limitation that would constrain a direct Commonwealth acquisition, then cooperative federalism has crossed a constitutional line.

That is precisely the sort of question for which the High Court exists.

The NSW gun community needs to get its act together for a legal challenge, and this time it needs to start by following both the legislation and the money.

Here is good advice from National Shooters Council: https://www.youtube.com/watch?v=hZ_Lb0uw2zo

https://www.facebook.com/groups/NationalShootingCouncilsSupportersPage/m

https://www.youtube.com/watch?v=5T7b2s4D0OA