Analytical Case Study of Federalism Port Arthur Massacre and Firearms Case Study

  • Length: 9 pages
  • Sources: 10
  • Subject: Law - Constitutional Law
  • Type: Case Study
  • Paper: #29946197

Excerpt from Case Study :

Gun Violence in Australia & its impact on federalism & coordinated gun control policy.

Gun violence yielding en masse public murders in Australia have provoked the question of whether laws governing guns are too lenient or perhaps have enabled the dangers arising from unregistered firearms. The role of federalism has begged the question of whether more jurisdictional authority is needed by one of the provincial levels of Australian government. First however, what exactly is meant by federalism?

According to Nathan (1988) the definition for modern federalism is differentiable due to the existence of "both central and regional governments, a written constitution, and a republican form on a basis is subject to two governments." (Nathan, 1988) Federalism is conditionally described as a segmented system necessary to facilitate funding to localities to better accommodate a diverse society. (Nathan, 1988) This also fits ostensibly with the definition of fiscal federalism, which denotes the federalist structure as a monetary framework designed to transfer fungible grant monies to lower level government.

Nathan further defines federalism as a function of a division of power, which supports his above notion although in a counterintuitive manner. According to Nathan, (1988), "I define federalism as a political system based on the areal division of power that assigns consequential powers to both the general and regional governments." (Nathan, 1988) The mention of federalism as a political framework is spot on. The method of distributing resources is at the heart of politics and ostensibly federalism is a broad term that is the auspice with fiscal federalism as the underlying methodology.

The topic may be subjugated into a dichotic representation of the spheres of governance as the governing bodies linked by federalist appendages. At the core, remain the constituent body whom are the citizens of Australia, as they come to rely on public safety measures to prevent public massacres from occurring. However, should government regulate the population as the primary means of preventing random gun violence? Is this ostensibly a government issue? Often, the courts provide some detail into how the precedent of the established law has viewed instances of gun violence in society and although gun control measures have been taken, are these measures considered comprehensive to the point of preventing either, all gun violence, or a certain level of gun violence kept below an 'acceptable' threshold?

Griffith (2004) describes the Australian Commonwealth federal decision to prohibit handgun imports. According to Griffith (2004), "The starting point for the legislation reviewed is the Commonwealth's amendment of customs regulations, from 20 December 2002, to prohibit the importation of handguns and handgun parts for the purpose of sports shooting unless they conform to caliber, barrel and magazine specifications. As a consequence, New South Wales passed legislation, effective from 1 October 2003, placing restrictions on the type of handguns that may lawfully be used for sports target shooting." (Griffith, 2004)

There were additional measures taken in Australia and Tasmania as well, as the country was also experiencing an increase in gun related violence. Could measures have been improved upon, may things have been done better? This paper will examine this question and examine the impact on community safety issues regarding unregistered firearms and question whether a National database to track firearm ownership and purchasing will mitigate the problem at hand.

Indeed, gun control is an issue according to the details of the case. Certainly, the crime did end in murder using a deadly firearm and the question remains, the death of a Constable and potentially other citizens may occur should firearms remain in the hands of those whom engage or strongly possess the potential to engage in deadly or illegal activity. This particular high court ruling handed a hard penalty to the defendants in the shooting death of the Constable.

Federalism & Gun Control Policy

The Port Arthur massacre in Tasmania has forced the hand of government to look at intergovernmental relations more closely and certainly very quickly. As the need to circumvent the planning of such activity becomes very imperative, the need to share information at all levels of government, from the local jurisdiction up to the national level, becomes ever more important.

The accounts of the Port Arthur incident as detailed by Laming (2007) is provided. According to Laming (2007), "At 1:30pm on Sunday 28 April 1996, Martin Bryant, a 28-year-old Hobart resident, arrived with two semi-automatic assault rifles and opened fire on visitors having lunch in the broad Arrow Cafe. He fired 250 rounds, killing 35 and injuring a further 21 in or about Port Arthur, and was apprehended by police the following day. Bryant, although having had learning difficulties at school, had no previous criminal record or history of diagnosed mental illness (Bingham 1996, 22, 119, 135; Chapman 1998, 1). Bryant had never possessed a gun license, and was not asked for one when he purchased his lethal weapons, although the law in Tasmania required it (Bingham 1996, 164)." (Laming, 2007)

Following the Port Arthur incident, and after the passing of legislation in 1996 to prevent incidences involving public violence, the Monash University murders of 2002 was the next incident where firearms were used in a public setting to murder civilians in cold blood. The result of the Monash University murders was to further restrict licensing requirements and to render select handguns as illegal. According to the Australian Associated Press (2006), "Following the 2002 murders of two students at Monash University in Melbourne by a licensed shooter, the government banned certain handguns and imposed tougher licensing procedures." (AAP, 2006)

The lack of checking for a license would have prevented the sale in the case of Port Arthur but not of Monash University. So a basic protocol in the regulation chain was ignored resulting in the loss of 35 lives. However, there is no reason to assume that the defendant would not have been able to obtain a license had he engaged the proper way and went about obtaining one. This is to say, the system would have failed regardless of whether or not the defendant had obtained the weapon via legal means. Indeed, the act of having a license and then procuring a weapon to use against civilians is a function of a lack of information regarding the potential intentions of owning a weapon.

Role of Federalism

According to (FED, 2007), "NSW Opposition leader Barry O'Farrell has described cooperative federalism as code for states coming second to Canberra. It has been a decade since there were two conservatives states at COAG, and 12 years since there were three." (FED, 2007) Cooperative federalism is the proposed solution as the indication prior was a move to more collaboration between the national and local jurisdictions. As with many centralization techniques necessary to condense power into a handful and the purview of a few, the rationale to reduce the influence of the local jurisdictions is to conclude their inability to either politically or financially govern their own affairs in an effective manner.

Mentioned earlier, fiscal federalism is the underlying premise to the federalism framework. The OECD provides the detailed synopsis of how fiscal federalism is dividing government at the national level from government at the sub-national level. According to the OECD (2009), "The current system of fiscal federalism is creating imbalances between the federal and the sub-federal governments (vertical imbalance), and between sub-federal governments (historical imbalance)." (OECD, 2009)

The need for reformation is clear as the division between national and subnational government can lead to dissention regarding policy procedures and perhaps a lack of funding to continue local operations. According to the OECD (2009), "without reform, the vertical imbalance will widen as the fiscal burden from the ageing of the population falls mainly on the federal level. Reform should therefore strengthen the fiscal capacity of the federal government by improving its revenue base." (OECD, 2009)

Strengthening the revenue base is the intended result of any reformation movement. Additionally, by increasing the revenue base, programs that target the proliferation of gun violence is ostensibly able to be supported. According to the OECD (2009), "The performance of the fiscal system could further be improved by raising the efficiency of spending in areas of national interest which have been assigned to sub-federal governments or where there are overlapping responsibilities, such as in employment, R&D, training, education, energy and environmental policies." (OECD, 2009)

However, the overwhelming need for reform is not inherent or dire. Australia is considered to be a stable democracy that will continue to pass legislation that is intended to protect its citizens while enabling the gun laws to allow for reasonable and defensive gun ownership and usage. Greene (2009) establishes the autocratic Australian democracy and compares it with the most recognized democracies. According to Greene, 2009) "Like the United States, Canada and Australia are stable, liberal, federal democracies with independent judiciaries, well-established traditions of judicial review, and written constitutions of long standing relative to most of the world." (Greene, 2009)

Ostensibly court rulings in the area of violent crime established the precedent for the expectation that…

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