A Constitutional Challenge to the New Gun Laws, By Ian Wilson LL.B

Updating and combining two previous critiques for circulation, in this article I will lay out a blueprint for a High Court challenge to the gun part of the legislation, Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Bill 2026 (which passed both Houses of parliament on 20 January, 2026). Federal involvement triggers section 51(xxxi)'s "just terms" mandate for property acquisitions – a shield absent in the 1996 state-based buybacks but now enlivened. The compensation argument will be discussed in detail below.

However, let's go deeper: The federal government's justification for meddling in firearms beyond their customs lane relies on a patchwork of stretched constitutional heads of power under Section 51. Each one is an unjustified overreach … and piling them together? That's a classic logical fallacy – the "aggregation illusion," where weak threads don't weave a strong rope. If you're a gun owner, farmer, or just a believer in limited government and liberty, this is your playbook to fight back.

The Bill's Gun Grab: A Quick Refresher

For context, Schedule 4 of the Bill isn't a polite suggestion; it's a federal hammer. It mandates a national buyback scheme for "high-risk" firearms (think handguns, straight-pull rifles, high-capacity mags, even gel blasters), amps up background checks via AusCheck with ongoing ASIO/ACIC intel (including spent convictions), clamps imports with public safety tests, and criminalises sharing DIY gun info online (up to five years' jail). No hard caps on ownership numbers yet, but the groundwork's laid for state-aligned limits. The Explanatory Memorandum (EM) frames this as a "comprehensive response" to hate and extremism, but it's a clear incursion into state turf – possession, licensing, and domestic control. As I argued previously, compulsory surrender and destruction extinguishes proprietary rights, making this a textbook acquisition under section 51(xxxi). But before we discuss compensation, let's dismantle how the feds even claim the power to act.

The Constitutional Crux: Section 51 Powers – Stretched Thin and Snapped

The Commonwealth can't legislate willy-nilly; it needs a head of power from Section 51 (or elsewhere). The EM stacks them like Jenga blocks – trade and commerce (section 51(i)), defence (section 51(vi)), corporations (section 51(xx)), implied nationhood, appropriations (sections 81/83), territories (section 122), and places (section 52) – arguing cumulatively they justify the lot. But each is an unjustified stretch, failing the High Court's tests for purpose, proportionality, and connection (Communist Party Case (1951) 83 CLR 1; Work Choices Case (2006) 229 CLR 1). Let's shred them one by one.

Trade and Commerce Power (section 51(i)): Imports Yes, Domestic No – A Boundary Overstep

This is the feds' safest bet for import controls – public safety tests, citizenship proofs, and bans on handguns or straight-pulls crossing borders. Fair enough; section 51(i) covers interstate/international trade (Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29). But the EM stretches it to justify the buyback and checks, claiming a "nexus" to trade risks. Rubbish – once guns are in-country, regulation shifts to states (Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397). Forcing domestic owners to surrender isn't "trade"; it's expropriation. This isn't incidental; it's core to the scheme, and section 51(i) doesn't reach that far. Unjustified stretch? Absolutely – it fails the "sufficient connection" test (Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1).

Defence Power (section 51(vi)): Peacetime Panic, Not Preparation – A Wartime Relic Abused

The EM ties the scheme to "defence objectives," framing firearms as security threats amid hate extremism (post-Bondi vibes). Sure, section 51(vi) expands in crises (Farey v Burvett (1916) 21 CLR 433), and Thomas v Mowbray (2007) 233 CLR 307 let it cover counter-terror in peacetime. But is everyday gun control "defence"? Hardly – no invading army here, just policy dressed as peril. The Bill's focus on hate preachers and visa ties doesn't make domestic buybacks a military matter. It's disproportionate: Why not stick to ASIO for real threats? This stretch ignores the power's limits – it can't bootstrap general law-and-order (Australian Communist Party v Commonwealth (1951)). If purpose doesn't save acquisitions from section 51(xxxi), it sure doesn't expand defence to grab grandpa's .22.

Corporations Power (section 51(xx)): Business Tweaks, Not Blanket Bans – Corporate Camouflage

For buyback admin involving dealers, the EM invokes section 51(xx) to regulate "activities" of trading corps (Work Choices). Okay for corporate participation, but that's a sliver – not justification for nationwide individual surrenders or intel checks on non-corp owners. The power stops at corps' trading/financial doings (Concrete Pipes Case (1971) 124 CLR 468); it doesn't engulf private property. Stretching it here? Unjustified – it's a fig leaf for overreach, failing proportionality as the scheme hits individuals hardest.

Implied Nationhood Power: Vague Vibes, Not Valid Authority – The Catch-All Cop-Out

Not even in section 51, this "inherent" power from cases like Pape v Commissioner of Taxation (2009) 238 CLR 1 lets feds act on "national concerns" (e.g., crises). The EM uses it for buyback objects, calling Bondi a national trigger. But nationhood is narrow – emergencies only, not ongoing policy (Victoria v Commonwealth (1975) 134 CLR 338). Gun control isn't uniquely federal; states handle it fine. This stretch turns the Constitution into Play-Doh, ignoring federalism's core limits (Melbourne Corporation v Commonwealth (1947) 74 CLR 31). Unjustified? You bet – it's the power of last resort, not first grab.

Appropriations (sections 81/83): Funding Facade, Not Substantive Power – Money Can't Buy Might

The buyback's bankrolled via the Federation Reform Fund, with section 96 grants to states. But appropriations don't create heads of power; they're tools for existing ones (Pape). The EM claims ties to defence/nationhood, but without a solid base, it's circular. Funding states doesn't evade scrutiny – if the scheme's invalid, the cash flow dries up (Williams v Commonwealth (2012) 248 CLR 156). Stretch? Massive – money leverages, but doesn't legitimise.

Territories (section122) and Places (section 52): Pockets of Power, Not National Net – Limited Locales

These cover ACT/NT or federal spots (airports, post offices). Fine there, but irrelevant to mainland SA farmers or QLD collectors. The EM admits as much – no broad justification. Unjustified for the national scheme? Totally; it's filler.

The Aggregation Fallacy: Weak Links Don't Make a Chain

Here's the logical knockout: The EM aggregates these powers, claiming cumulatively they cover the Bill. But that's a fallacy – the "fallacy of composition," where parts' properties don't transfer to the whole. High Court precedent demands each element tie to a valid head: R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207. Barwick CJ (at 225):

"It is not permissible to combine parts of different powers to produce a composite power not found in the Constitution."

You can't mosaic mediocrity into might. If trade covers imports but not buybacks, defence doesn't plug the gap. Aggregation masks overreach, violating federalism (Engineers' Case (1920) 28 CLR 129, but evolved). This fragility invites invalidity challenges.

As the High Court warned in the seminal Communist Party Case (1951) 83 CLR 1, the Parliament cannot 'recite itself into power.' By attempting to aggregate several weak heads of power to justify the 2026 Bill, the Commonwealth is attempting a constitutional sleight of hand that the precedents of Davis (1988) 166 CLR 79 and Williams (2012) 248 CLR 156 suggest will not survive judicial scrutiny.

Section 51(xxxi) as the Kill Shot

By way of summary: Federal action mandates "just terms" for acquisitions – fair market value, not caps ignoring scarcity or provenance (Spencer v Commonwealth (1907) 5 CLR 418; Johnston Fear & Kingham (1943)). Extinction of property coupled with regulatory advantage or redistribution satisfies "acquisition" (JT International v Commonwealth (2012) 250 CLR 1) The Bill's voluntary veneer? Illusion – pressure via imports and checks forces hands. Challenge the lot: Invalid under stretched powers, or compensation-defective. Class action gold: Uniform framework, common questions (Georgiadis v AOTC (1994) 179 CLR 297). States like Tasmania, Queensland, and the Northern Territory are already resisting the federal push for the buyback, specifically due to the costs involved; let's turn up the legal heat even more!

Further argument section 51 (xxxi):

The 1996 gun grab scheme was implemented by the states, and section 51(xxxi) of the Constitution — the clause requiring acquisitions of property to be on "just terms" — binds only the Commonwealth, not the states. (P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382).

So, state governments could extinguish lawful property interests, set compensation administratively, and dare owners to complain — knowing courts had no constitutional lever to pull.

A federally legislated confiscation scheme changes that entirely.

The Forgotten Clause: Section 51(xxxi)

Section 51(xxxi) permits the Commonwealth to acquire property — but only "on just terms." This is not aspirational language. It is a condition of constitutional validity. If Commonwealth law effects an acquisition of property without just terms, the law is invalid to that extent.

The High Court has repeatedly held that: If the Commonwealth acquires property, the purpose of the acquisition — including public safety — is constitutionally irrelevant. Compensation is mandatory.
(Bank of NSW v Commonwealth (1948) 76 CLR 1; Wurridjal v Commonwealth (2009) 237 CLR 309.)

This obligation applies even where the acquisition is:

Regulatory rather than expropriatory,

Incidental rather than primary,

Or indirect rather than physical.

The question is functional: has the Commonwealth obtained a proprietary benefit or extinguished a proprietary interest? If yes, just terms apply. (JT International SA v Commonwealth (2012) 250 CLR 1.)

Compulsory surrender and destruction of firearms clearly extinguishes proprietary rights. That is textbook acquisition territory.

Why 1996 was Constitutionally Untouchable — and Why This Time Isn't

In 1996, the Commonwealth funded and coordinated the National Firearms Agreement, but state legislation did the actual confiscation. That distinction was decisive.

Section 51(xxxi) does not constrain state acquisitions. The High Court made that explicit in Magennis, holding that states may acquire property on terms that would be unconstitutional if done by the Commonwealth.

So, the police could value firearms arbitrarily, ignore scarcity premiums, collector value, or replacement cost — and courts had no constitutional basis to intervene.

A federal confiscation statute, however, would immediately engage section 51(xxxi). And unlike 1996, the courts would be obliged to scrutinise both:

1.The acquisition mechanism, and

2.The adequacy of compensation.

This is not a political shift. It's a jurisdictional one.

"Just Terms" Does Not Mean Token Compensation

High Court jurisprudence makes clear that "just terms" means fair and equitable compensation, ordinarily approximating market value, assessed objectively, not administratively.

In Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314, the Court held that compensation must reflect the value of what the owner has lost, not what the government wishes to pay.

In Wurridjal, the Court reaffirmed that even regulatory acquisitions — where the government claims to be pursuing broader policy objectives — require compensation if proprietary interests are extinguished.

And in JT International, although the tobacco companies ultimately failed on the facts, the Court reaffirmed the governing principle: extinguishment of valuable proprietary rights can constitute acquisition even without physical transfer.

If eliminating brand trademarks requires constitutional analysis, eliminating lawful ownership of firearms plainly does.

A compensation scheme that:

Caps prices administratively,

Ignores collector scarcity,

Disregards condition, provenance, or lawful market demand,

is not merely unfair — it is constitutionally defective if enacted federally.

Why This is Now Class Action Territory

The 1996 confiscation scheme defeated individual resistance because:

There was no constitutional footing.

Litigation would have been confined to administrative law margins.

State legislation foreclosed structural challenge.

A federal scheme creates:

A single statutory framework,

A common constitutional question,

And a uniform injury across thousands of owners.

That is the textbook structure of constitutional class litigation.

The core claim would not be "gun rights" — it would be:

The Commonwealth has effected an acquisition of property without just terms, contrary to s 51(xxxi), rendering the law invalid or compensation provisions constitutionally inadequate.

This is not speculative. In Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, extinguishment of accrued common law causes of action was held to be acquisition requiring just terms.

Firearm ownership interests are at least as tangible

Why States Can Still Undervalue — But the Commonwealth Cannot

This distinction matters:

States: Can still confiscate and compensate at administratively determined rates, subject only to state law and politics. No constitutional just-terms constraint applies. (Magennis.)

Commonwealth: Cannot acquire property without just terms — full stop. (Bank of NSW; Wurridjal.)

Which means a federal scheme that merely mirrors the 1996 state model — police-set schedules, capped payments, bureaucratic valuation — would be constitutionally fragile.

If the Commonwealth attempts to outsource the dirty work to the states while retaining legal ownership of the acquisition, the courts will look through the form to the substance. (Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495.)

You cannot constitutionalise confiscation by laundering it through cooperative federalism.

Why Federalisation Changes the Legal Battlefield

The Commonwealth is boxed in:

If it legislates federally (as done) → s 51(xxxi) applies.

If it leaves confiscation to the states → it forfeits national uniformity and enforcement leverage.

If it pressures states financially → Melbourne Corporation doctrine limits coercion (Melbourne Corporation v Commonwealth (1947) 74 CLR 31).

In short: nationalisation constitutionalises the compensation problem.

That is why earlier gun control regimes carefully avoided federal acquisition power. But modern political incentives now favour Commonwealth leadership — and that leadership carries constitutional consequences.

What a Real Litigation Strategy Would Look Like

Not protest litigation. Structural litigation.

Step 1: Owners receive surrender notices or compensation determinations under federal law.
Step 2: Plaintiffs challenge valuation as not "just terms."
Step 3: Plaintiffs argue that the acquisition mechanism itself is invalid absent constitutionally adequate compensation.
Step 4: Federal Court → Full Federal Court → High Court.

The strongest plaintiffs:

Long-licensed owners

Registered firearms

Collector-grade or discontinued weapons

Clear market evidence of undervaluation

This is how constitutional litigation succeeds: not ideologically, but technically.

The Argument Government Most Wants to Avoid

The government's nightmare argument is:

"This law effects a compulsory acquisition of private property without just terms, contrary to section 51(xxxi), and is invalid irrespective of its public safety purpose."

That argument has succeeded repeatedly across domains — land, statutory entitlements, intellectual property, causes of action — whenever Commonwealth legislation extinguishes proprietary interests without adequate compensation.

Firearms are not constitutionally special. Property is.

Conclusion: Australia Has No Right to Bear Arms — But It Does Have a Right Not to Be Robbed by the Commonwealth

Australia's Constitution does not protect gun ownership. But it does protect property ownership against uncompensated federal expropriation.

That protection was unavailable in 1996 because confiscation was state-based. It becomes unavoidable now if confiscation is federalised.

This time, the fight is not cultural.

It's constitutional.

And for the first time in thirty years, gun owners would not be arguing in the language of liberty — but in the language the High Court actually enforces: invalidity.

Pass the idea on to all gun owners, especially the shooting groups and clubs, who have in the past been fragmented and thus less politically powerful. Document all gun values now.

Appendix: Estimated Heads of Damage for Federal Acquisition

This appendix outlines the categories of financial liability the Commonwealth would face under section 51(xxxi) for a federalised firearm acquisition.

By presenting these "Heads of Damage," shooting clubs and legal groups can force the government to confront the fact that a "buyback" is not a fixed-price purchase, but a constitutionally mandated compensation of all lost value.

Under the Lands Acquisition Act 1989 (Cth) and High Court principles in Spencer and Nelungaloo, "Just Terms" goes beyond the simple "blue book" value of a firearm.

1. Market Value (The "Spencer" Principle)

Definition: The price a "willing but not anxious" buyer would pay a "willing but not anxious" seller.

The Big Cost: For rare, collector, or high-end firearms (e.g., Accuracy International, bespoke competition rifles, or historically significant pieces), the market value is determined by global auction records, not a police schedule. If a rifle sells for $15,000 in the US, the Commonwealth cannot offer $2,500 and call it "just."

2. Special Value to the Owner

Definition: Financial advantages peculiar to the owner that exceed the general market value.

The Big Cost: This covers customised modifications (precision bedding, custom triggers, high-end optics) and "matching sets" where the value of the whole is greater than the sum of its parts. If a shooter has spent $10,000 tuning a rifle for national competition, the Commonwealth must compensate that specific investment.

3. Loss Attributable to Disturbance

Definition: Costs reasonably incurred as a direct consequence of the acquisition.

The Big Cost: This is a massive "sleeper" cost. It includes:

oProfessional Fees: The Commonwealth is liable for the legal and valuation fees owners incur to dispute an unfair offer.

oRedundant Assets: If a club's entire range infrastructure (steel targets, specialized storage, reloading equipment) becomes worthless because the specific firearms used there are banned, the Commonwealth may be liable for the "injurious affection" or total loss of value of that related equipment.

4. Severance and Business Utility

Definition: The reduction in value of "retained property" caused by the taking.

The Big Cost: For primary producers (farmers) or professional pest controllers, the firearm is a "tool of trade." If the Commonwealth takes a semi-automatic rifle used for feral pig control and the "legal alternative" (a bolt-action) is only 30% as effective, the owner can claim for the increased labour costs and reduced business efficiency caused by the inferior tool.

Summary of Liability Risk