Wednesday, March 21, 2018

Australia: NSW Supreme Court Give Police Everything they Wanted and More

In 2017, when I visited Australia, Donald Eykamp had an ongoing appeal at the New South Wales Supreme Court.

That case has been resolved. The decision came down on 18 December, 2017.

I was unable to obtain a copy of the decision until after I had returned to Australia.

I carefully read the decision, then conferred with an Australian barrister.

The decision was a disaster for gun owners. It gave the New South Wales Police everything they asked for. Then, it gave them things they did not ask for.

For a while, the politics looked promising. The New South Wales government passed a firearms reform measure that gave the police some discretion about confiscating guns in gun storage cases. That legislation went into effect in November of 2017.

The appeals process took about a year and a half, a bit longer than average. In the end, the court ruled on a number of things, all with bad results for the gun owner.

Here is a summation of the ruling:

The police had no discretion to *not* confiscate the guns. The law required them to confiscate them.  The new law did not apply because the law was different at the time of the original offenses.

The judge had no discretion to order the guns be sold and the proceeds given to the gun owner.

The judge had no discretion to order any of the guns destroyed. That power was reserved to the police.

The court had no discretion to legally separate non-firearms parts (in this case, expensive European telescopic sights) from the rifles or to negotiate to return those multi-thousand dollar items to the gun owner. 

The Supreme Court judge acknowledged the law was harsh in this case, but said that the law was meant to be harsh.

I had the pleasure of seeing some of Donald Eykamp's collection of pre-1964 Winchester model 70 Super-grade rifles. They are beautiful rifles, over 40 years old, almost never used in crime. They were topped with some of the best European telescopic sights that money can buy.

Perhaps the New South Wales police will see the wisdom of selling these valuable cultural artifacts, instead of simply destroying them for no significant reason.

The only legal avenue left to New South Wales gun owners is the legislative one. There is a tendency for harsh and irrational laws to be modified and made less burdensome over time. On the other hand, the American experience with drug laws shows that bad law can be made worse; legislatures can double-down on bad law. The American experience with forfeiture law abuses is a good example.

The recent Tasmanian election results are encouraging for gun law reform in the Australian state of Tasmania.

At the present, it seems unlikely that Australians will regain an "Englishman's right to arms" that would have been in the rights guaranteed in the Australian Constitution of 1900.  But Englishman's rights were only in common law, and not specifically written down.

The advantage of the American Bill of Rights and the Second Amendment in preventing the loss of rights, is obvious.

©2018 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

1 comment:

Anonymous said...

two points:
the right of "an Englishman" to own guns is written down....
the Bill of Rights 1689;
the case with the guns can be appealed to the NSW Supreme Court and, if necessary, to the High Court of Australia;
it would well behove Mr Eynkamp to pursue this course-of-action ASAP