In 1996, after Port Arthur, Australian governments ran what was called a "buyback" and what many gun owners experienced as something closer to compulsory liquidation at police-set prices. A friend in South Australia owned several legally registered semi-automatics — including an AR-15 he had paid $3,000 for. The police assessed the lot and handed him about $4,000 total he said. No negotiation. No market valuation. No appeal. No constitutional remedy.
Like most owners, he swallowed it. The politics made resistance radioactive. But legally the deeper reason no remedy existed is simpler: the 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.
1. 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.
2. 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 s 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.
3. "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.
4. 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
5. 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.
6. Why Federalisation Changes the Legal Battlefield
The Commonwealth is boxed in:
If it legislates federally → 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.
7. 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.
8. 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 s 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 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 s 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.