A look into Corporate fraud in Australia, Stranglehold of Monopolies, Telecommunications Oppression, Biased Law System, Corporate influence in politics, Industrial Relations disadvantaging workers, Outsourcing Australian Jobs, Offshore Banking, Petrochemical company domination, Invisibly Visible.
It's not what you see, it's what goes on behind the scenes.
COMMONWEALTH OF AUSTRALIA (ABN: 122 104 616)
Australia's Prime Minister (CEO) Tony Abbott : "Australia is Open for Business"
The Australian government is in full swing propaganda mode with regards to the census, i.e television advertising.
Not so long ago, the Victorian population was duped by the government into thinking following government 'advertising' that it was mandatory to have 'smart meters' installed into their premises, whereas in other states it was an option.
So what lawfully enacted laws were passed that mandated you to have a smart meter installed on your premises?
While the government may have 'mandated' companies to install smart meters, the customer cannot be lawfully forced to purchase something they do not wish to have, an inconvenient truth the government has neglected to tell people.
In other words the meters installed on your premises may be been done so with misleading information, deception and even force, from the hands of government.
The government now is telling you that you MUST complete the census forms.
You may have received a nice piece of paper from a company called the ABS.
See attached illustration with red highlights to areas of concern.
The words highlighted are "Your moment to make a difference".
Do you really want to make a difference? Just say you do not. For instance you may wish to be left alone, and not participate in making a 'difference'. What are your options there?
On the right hand side of this piece of paper is a company logo of the ABS - Australian Bureau of Statistics.
An online search will indicate that this ABS (Australian Bureau of Statistics) has an ABN of 26 331 428 522, and also has a business name of Bureau of Statistics Western Australia.
So on the piece of paper the 'government' has given you, you have not been given all the necessary information (i.e. ABN), as required when conducting business in Australia.
Therefore you have been misled.
The letter has been generically address to "TO THE RESIDENT".
Now the same word in 'law' may have a different meaning to the word being used by the common folk.
Let's take a look at the word 'resident' from the Black's Law dictionary 2nd edition (see illustration below).
Resident. One who has his residence in a place. "Resident" and "inhabitant" are distinguishable in meaning. The word "inhabitant" implies a more fixed and permanent abode than does "resident;" and a resident may not be entitled to all the privileges or subject to all the duties of an inhabitant. Frost v. Brisbin, 10 Wend. (N.Y) 11, 32 Am. Dec 423. Also a tenant who was obliged to reside on this lord's land, and not to depart from the same; called, also. "homme levant et couchant," and in Normandy, "resseant du fief."
At the bottom of the ABS document it states that "All responses are kept strictly confidential by law".
What lawfully enacted 'Act' is being referred to there?
Why is reference to this Act not published?
In certain other government documentation (e.g.) Centrelink states that it cannot comply with subpoenas with the according reference to law (see illustration below).
So why again are you being mislead by the Australian (or is it the West Australian) government?
Note that the letters asks you to go online, to fill out your census.
If you cannot go online, you are asked (read invited) to call a number to request a form.
What happens if you DECLINE their invitation for a paper form?
What lawfully enacted law (you know Act) can be used against you?
Seems like another dodgy attempt to obtain cross reference information they already have.
In this digital era, 'your' information is no longer yours as it becomes a commodity, and even a tool that can (read is) being used against you.
Your data becomes a target for 'hackers', not necessarily the pimply 15 year old ones but rather the ones working in suits for 'governments'.
Your data becomes a target for government departments, businesses like city councils, supermarket chains like Coles or Woolworths and many other 'businesses'.
To make it even worse IT companies or rather GIANTS like Microsoft, Google and Apple are deliberately perpetuating the problem, by making your data susceptible to being a target of illegal activity by forcing you to store your data on the 'cloud' meaning some place on the internet on 'their' servers.
New products from Microsoft deliberately do not allow you to store your information locally, meaning on your computer's related program or hard disc, whereas previously one could do so.
Nowadays you cannot even backup your device locally, whereas again you were able to do so before.
The Australian government is in on it too, by 'forcing' you to compromise your data.
This is done by narrowing your options the way you communicate with this corporation conglomerate.
Your options are being limited, narrowing them down to (ultimately one option, that being) lodging your applications via your smart phone, and using the brilliant tactic that it's for your benefit because it's easier for you, at the same time being fully aware that 'your' data is at a high level of risk of being compromised.
You cares right? It's only 'your' data, but when 'their' data gets compromised the person/s who compromise it get criminally prosecuted.
This should show you how much of a slave you are to the government.
We could post instructions on how easy it is to gain access to your email account, but then again some retarded federal employee may consider this a 'TERRORIST ACTIVITY' and no doubt our place of residence, work or play would be raided later to be whisked away only to never bee seen again or incarcerated in a normal prison then later to just die, under no suspicious circumstances as determined by a corrupt coroner.
Currently the 'latest craze' for the special people is Pokemon Go, or whatever.
See article from 29 July 2016 by news.com.au of the headline:
All of the data on your smartphone can be accessed by hackers in a matter of minutes
If you thought your smartphone was safe from attack, better think again.
someone hacking your smartphone and having access to all of your
personal data, including contacts, calendar and GPS location.
imagine the same hacker turning on your phone’s microphone and camera
at any given time, listening and watching as they track your every move.
concept is terrifying on in its own, but even more so when you witness
first-hand how easy it is for a cybercriminal to exploit these
Check Point’s Nadav Peleg is a cyber security
expert who breaks into protected systems and networks to expose
vulnerabilities, so they can be fixed.
To demonstrate the risk
Australians face, Nadav visited the news.com.au offices to show just how
susceptible smartphones can be to attacks.
However, I never knew just how easy it was for a hacker to gain access to your smartphone.
can have lots of blocks and barriers on the phone, but most of the
attacks we see today are happening through social engineering,” Nadav
“So you don’t actually have to physically have
the phone, all you need to do is trick people in order to accept either a
malicious app, an email attachment or SMS in order to install a
malicious profile that can take over your phone.”
To demonstrate one hacking method, Nadav used the example of a Pokemon Go app on an Android device that had been infected with malware at the time of download.
This control and command centre gives the hacker access to everything on your smartphone.Source:Supplied
Using a control and command centre, Nadav was given full control of the infected Android.
person may not even know their phone is infected with malware and, as
the hacker doesn’t need direct access to the phone, they can use all of
the features of the phone from a laptop anywhere in the world,” he said.
When Nadav said he had full access, that’s exactly what he meant.
Firstly, he got me to film a video of myself on the phone and then seconds later he replayed the video for me on his laptop.
this was distressing, it was far more chilling when he got me to hold
the phone, which for all intents and purposes appeared to be locked.
was no indication he had been filming me the entire time we had been
talking, yet he showed me another video on his laptop he had just taken
without my knowledge.
The phone didn’t even change from the black
lock screen, so I literally had zero idea I was being filmed. Thankfully
it was in a work environment and everything was PG.
Further to this, Nadav demonstrated he had access to the phone’s calendar, GPS and messaging services among other things.
then used his laptop to send a message from the hacked Android to my
iPhone, before explaining this could be used to sign the owner of the
phone up to expensive SMS subscription services set up by the hacker to
make them money.
So within a matter of minutes, Nadav was able to
show me just a small portion of what a hacker could achieve using a
control and command centre exploiting a compromised app.
Using a man-in-the-middle attack, this program can record everything typed on the phone.Source:Supplied
Swapping from an Android to an iPhone, Nadav demonstrated how joining a public Wi-Fi can open users to hacking.
Using the Wi-Fi of a popular coffee shop as an example, Nadav demonstrated a man-in-the-middle attack.
attack secretly relays and alters the communication between two parties
who believe they are directly communicating with each other.
In this instance, Nadav said the user had been tricked into connecting to a third-party gateway with keylogging capabilities.
This means everything the person typed on their phone was republished in the program used by the hacker.
Not only does this record conversations and browsing history, but it also captures usernames and passwords.
show this, Nadav headed to Facebook and the program showed what website
was being accessed, as well as the username and an unmasked password
that gave access.
“Now using the phone, I am inside the perimeter
and that’s what criminal organisations use to gain access to more of the
victim’s accounts and information,” he said.
Nadav said now
people understand something as innocuous as a contact form on your
website can pose a significant threat to your IT infrastructure, people
should install mobile threat prevention applications like the one
CheckPoint offer through its partnership with Optus.
And after witnessing how easy your phone can be breached, I am going out to get some protection.
Not many serf's would be aware of the (real) state of 'law'
on an occupied land like Australia.
Because first and foremost the (British) occupiers of this
continent have not negotiated a treaty, as opposed to the occupiers of New
Zealand who have a treaty (irrespective of how dodgy - called the Treaty of
Waitangi) with the native population.
Therefore, the people in
Australian government to this day are in dishonour.
In law this continent is a penal colony of the British
empire and is administered as such.
Therefore, there is no such stature as 'Freeman' on this continent.
Never was and never will be.
So, fast forwarding the 'invasion' of 1788, subsequent lack
of treaty, installation of Martial Law, to an alleged set of rules for the
people of a government to follow.
A document was drafted for the formation of a government
containing a set of rules that the people of a government must abide by.
This document is called the 'Australian Constitution', or in
legal terms (a law is defined by an Act, in this case the long name being) An
Act to constitute the Commonwealth of Australia. It's final draft was dated the 9th of July
1900, and (allegedly/officially) given Royal Assent on the 1st of January 1901,
thereby making it officially 'law'.
You can download this document (approx 600KB) from the link below:
Also, there are some explanatory notes to this document
called the 'Constitution', which were put into a book called THE ANNOTATED
CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH (By John Quick and Robert Garran),
or "Quick and Garran" for short. While this book is not 'law', it is however
a document that explains the actions and intentions of the lawmakers of the day
with regards to creating the Australian Constitution.
This book to date, has been referred to in 165 cases within the
High Court of Australia.
We recommend the digital scan (approx 74.6MB) from the Toronto Library from
the following link:
So what has this got to do with the Census you might say?
The Constitution stipulates that the Australian government be
called the 'Commonwealth of Australia', containing the Coat of Arms as in the
The Constitution defines that all laws are to be made by the
Parliament of the Commonwealth.
So let's go to 2016.
In your letter box you may have received a letter from a 'business'
called the Australian Bureau of Statistics.
You will note that the ABS is using the 'Kangaroo and Emu' Coat
of Arms in their correspondence.
So let's dig a little deeper in to this shall we?
What you did not get told is that their ABN (Australian
Business Number)is 26 331 428 522, and it's called the Bureau Of Statistics of
Western Australia. See illustration below.
1). So why is a 'Commonwealth Government Entity' whose business
location is allegedly in the ACT have a business name of Bureau Of Statistics
2). Is this business a real government entity, as per Australian
3). Is this 'business' conducting business lawfully?
4). Are the entities Australian Government and Parliament of Australia lawful entities as defined by the Australian Constitution - since the High Court uses it?
5). Can the ABS 'force' you to fill in a piece of paper with
your signature if you do not wish to do so?
6). What 'lawful' Act can they rely on for it to be mandatory
for you to fill in this paperwork?
7). How can you trust a government that does not enact the will
of the people?
8). How can you trust the people in government who are in
9). How can you trust the administration with your private
information, who have not negotiated a treaty with the Indigenous population?
10). What real guarantees do you have of your information being
11). What penalties are in force (read - laws in place) if your
privacy is breached?
12). Does the machine called the 'government' really need this
information from you, or do they just want to see if you do not lie (make false
statements - as supported by your 'signature'), therefore making you 'criminally' liable ???
In these types of cases, it is often helpful – although not always
necessary – for evidence to be ventilated during criminal proceedings
for which the defendant was ultimately acquitted and adverse findings
made by a Magistrate or Judge about the conduct of police, or for the
case to otherwise be terminated by police before it reaches a hearing.
Intentional torts require that the civil defendant (eg police)
possessed the intention to do the act that caused the plaintiff’s (ie
the person harmed) injuries. The most common intentional tort claims
against police are those that involve interference to the person. These
are as follows:
These two terms are often used interchangeably as they can arise from the same conduct.
The distinction at law is that battery requires the application of
physical contact; whereas an assault may occur with just the
apprehension, or fear, of immediate unlawful contact. Battery
Battery occurs when the defendant directly and deliberately causes
offensive physical contact to the person of the plaintiff; without the
plaintiff’s consent or other legal justification.
A battery commonly arises in the following circumstances:
– in the context of an arrest made by police, where police have used excessive force;
– where police or Corrective Services officers have used excessive force whilst conducting forensic and other procedures; or
– where security guards or ‘bouncers’ have used excessive force in removing patrons from bars and clubs.
The plaintiff must demonstrate the following elements, to establish that a battery has occurred:
1) There was an intentional or negligent act of interference (physical contact with the plaintiff’s body).
The defendant’s act caused physical interference, or contact with the plaintiff’s body.This
can also include contact with the plaintiff’s clothes, spitting in
someone’s face, causing a person to be touched with another object or
throwing a person out of a chair by touching only the chair, and not the
2) The interference was direct or immediate upon the defendant’s act.
The interference to the plaintiff must be direct and immediate upon
the defendant’s act, and not consequential. This issue may not arise in
cases involving physical contact, however can be more difficult to
identify in cases involving mental harm.
For example, in a recent Victorian case, it was held that witnessing
injuries resulting from a domestic violence incident where police were
involved could not be sufficiently linked to the conduct of police, and
the actions of police were not sufficiently direct enough to cause the
plaintiff’s harm, and
3) Such contact was offensive, likely to cause injury or affront.
There is a requirement that the defendant’s act must be ‘angry, revengeful, rude, insolent or hostile.’ Physical contact resulting from the exigencies of daily life
will not amount to battery. For example, a casino employee touching a
patron on the shoulder in order to get his attention is not enough to
amount to a battery.
The presence of hostility in an act is what distinguishes a battery from contact in the ordinary course of daily life.
The above elements must be proved on the balance of probabilities, to the Briginshaw Standard (discussed below).
Once offensive physical contact has been established, it will be for
the defendant to establish that they did not possess the necessary
intention. In the context of police conduct, it is often argued that the
defendant was using force necessary to perform an arrest.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA), police officers are able to use “such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”so
the plaintiff must demonstrate that the conduct went beyond what was
necessary in the circumstances. Even where there has been a lawful
arrest, there may have been excessive force used by the arresting
officer, for example where a baton has been used unnecessarily.
An assault occurs where the defendant deliberately causes the
plaintiff to apprehend imminent unlawful physical contact; although it
is not necessary that such contact actually occur. Often where a battery
has occurred (ie physical contact), an assault has also occurred and
the two actions can be pleaded together.
The following elements must be established in order to establish an assault:
1) There was an apprehension of imminent physical contact with the body of the plaintiff.
To satisfy this element, there must have been a threat of imminent
physical contact, which the plaintiff was aware of. Without knowledge of
the threat, the plaintiff cannot apprehend that physical contact was
about to occur.
Further, the apprehension must be of imminent contact; the defendant
must appear to have the present ability to carry out the threat. This
factor can vary significantly between cases. For example, protestors
making threats of violence from the other side of the gates of a
colliery did not amount to an assault, as they did not have the present
ability to carry out the threats against the plaintiffs,however,
the future threat of taking a woman back to a house in order to ‘fix
her up’ was seen to amount to an assault, although it was a future
Words alone can constitute an assault. In Barton v Armstronga politician made threats over the telephone and the plaintiff was successful in proving an assault. Similarly, in Slaveski v Victoria, a police officer was held to have assaulted a home owner by saying over the phone, ‘anybody can get shot these days, anywhere’.
2) The defendant intended to cause such fear in the plaintiff.
To establish an assault, it must be demonstrated that there was an ‘objective
intention on the part of the Defendant that the threat will create an
apprehension in the mind of the Plaintiff that the threat will be
carried out. It is not necessary to prove that the defendant in fact
intends to carry out the threat’, and
3) The apprehension of fear by the plaintiff was reasonable.
This element requires an objective test of the plaintiff’s state of
mind, and not an assessment of their bravery. The defendant’s act only
needs to create a reasonable apprehension of physical contact, not fear of such contact.
In terms of actions against police, an assault may arise in a number
of situations, including during arrests, when police are accessing
property and conducting other procedures, or through other contact in a
public or private place.
This is another type of intentional tort, involving a wrongful,
intentional act causing restraint on the liberty of another person, for
any period of time.
Common applications in relation to police conduct include arrests for
breach of bail conditions, for example; where a person is arrested in
relation to bail conditions that have previously been varied, dispensed
with or are no longer in place. Also, arrests for the purposes of
questioning or investigation, for which police have no power.
The elements that need to be proved are:
1) The defendant intentionally caused the total restraint of the plaintiff’s liberty.
The restraint of liberty must be total and not merely a partial
constraint of movement. However, the deprivation of liberty can be
actuated by non-physical boundaries and does not require physical
contact. The element will be made out where it can be demonstrated that
the plaintiff felt obliged to submit to the instructions of the
defendant. Where a person is arrested and taken into custody by police, an issue regarding this element will not arise.
2) The restraint was not lawfully justified.
The only defence to an action in false imprisonment is that the
restraint was performed pursuant to lawful authority. Once the restraint
of liberty has been proved, it is up to the defendant to show it was
justifiable or lawful.
The power of Police to affect an arrest is outlined in Section 99 of the LEPRA:
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if
the police officer suspects on reasonable grounds that the person has
committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of
taking proceedings for an offence against the person unless the police
officer suspects on reasonable grounds that it is necessary to arrest
the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who
may be required to give evidence in proceedings in respect of the
offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section
must, as soon as is reasonably practicable, take the person, and any
property found on the person, before an authorised officer to be dealt
with according to law.
The most common civil claims against police arise out of wrongful
arrests, where police have acted outside their powers in performing an
arrest. However, actions may also arise where the initial arrest was
lawful, but the plaintiff was detained beyond a reasonable time.
C) Malicious Prosecution
These cases arise from legal proceedings being brought without reasonable and probable cause and with malice.
The elements that must be proved for a malicious prosecution to be established are:
(1) Proceedings were initiated or maintained against the plaintiff by the defendant;
In general, only criminal prosecutions can form the basis of an
action for malicious prosecution – civil proceedings do not normally
Essentially, the plaintiff must show that police were prosecuting the
case, rather than another body.
The prosecutor is not limited to just
the ‘informant’ (ie the officer in charge), but anyone responsible for
claim can also be made against a person who made a complaint to police
that was deliberately false, if proceedings were brought based upon that
complaint (this would only be advantageous if the complainant has the
means to pay damages, of course).
In some cases, it may have been reasonable for the prosecutor to
initiate proceedings against the plaintiff, but not maintain them. For
example, if further (exculpatory) evidence comes to light during the
investigation and it is no longer reasonable to maintain the
prosecution, yet they persisted in any event.
(2) The proceedings were terminated (finalised) in favour of the plaintiff.
Any termination that does not result in conviction is favourable to
the plaintiff for the purposes of civil action… “the magistrate may not
commit for trial; the director may not find a bill of indictment; the
direct may direct that no further proceedings be taken or the Attorney
General may enter a nolle prosequi.”
To satisfy this element, it is simply necessary that no determination
of guilt has been made against the plaintiff, and the proceedings have
ended without such a determination.
It should be noted it has been held that where a charge had been dismissed, without conviction, pursuant to Section 10 of the Crimes (Sentencing Procedure) Act
1999, this did not constitute a “termination of proceedings favourably
to the plaintiff”. This was because the ultimate order had been preceded
by a finding of guilt.
(3) That the defendant acted without reasonable and probable cause.
This is often the most difficult element to prove in a claim against a
prosecuting authority, as it involves both an objective and subjective
assessment all of the evidence upon which proceedings were initiated or
maintained, and will vary heavily from case to case.
The material to be considered is not limited to admissible evidence,
or the prosecution’s consideration of whether a defence will be
is, however, necessary for a prosecutor to make sufficient enquiries so
as to inform himself or herself of the true state of the case.
As discussed in the case of A v New South Wales, there are
several considerations in determining if a person had reasonable and
probable cause for prosecuting another for an offence:
“a) the prosecutor must believe that the accused is probably guilty
of the offence; b) this belief must be founded upon information in the
possession of the prosecutor pointing to such guilty, not upon mere
imagination or surmise;
c) the information, whether it consists of things observed by the
prosecutor himself, or things told to him, must be believed by him to be
d) this belief must be based upon reasonable grounds;
e) the information possessed by the prosecutor and reasonably believed
by him to be true, must be such as would justify a man of ordinary
prudence and caution in believing that the accused is probably guilty.”
The absence of one or more of these factors can establish that there
was not reasonable and probable cause in initiating proceedings,
although the list should not be considered exhaustive.
An in depth analysis of the evidence that was behind the initiation
of proceedings will be essential before bringing any suit for malicious
(4) The defendant, in initiating or maintaining the proceedings acted maliciously.
In order to prove this element, the plaintiff must demonstrate that
the defendant, in bringing the proceedings, was ‘acting for purposes
other than a proper invocation of the criminal law.’
This can include cases where some bias of the prosecuting authority
can be demonstrated, or where an absence of reasonable and probable
cause can be used infer malice.
In Houda v New South Walesit
was decided that a police officer had acted maliciously in bringing
proceedings against a NSW solicitor where he knew that no offence had
been committed, and the officer was acting out of spite after an
altercation with Mr Houda that was provoked by police.
In A v State of New South Wales it was demonstrated that the
defendant had initiated proceedings only because he had been pressured
to do so by his superiors, rather than in the interests of justice.
It should be noted that the presence of malice alone will not be
enough to establish a claim in malicious prosecution. It is essential
that this element is accompanied by the absence of reasonable and
Standard of Proof
The plaintiff in intentional tort cases must prove each element ‘on
the balance of probabilities’; unlike in criminal matters where the
required standard is ‘beyond reasonable doubt.’
The test is referred to as the Briginshaw standard and
requires that the allegations are established to the reasonable
satisfaction of the tribunal (eg court). Reasonable satisfaction should
not involve inexact proofs, indefinite testimony or indirect references,
however, it is referable to the seriousness of the fact being asserted.Essentially, the more serious the allegation, the more probative or stronger the evidence needs to be.
There are three main defences to intentional torts, which the
defendant must establish to escape liability if the tort is made out.
This defence may be raised by asserting that the defendant was acting lawfully in their conduct against the plaintiff.
In New South Wales, the LEPRA governs the power of police to make
arrests, conduct searches, prevent public disorders, give move on
directions, detain intoxicated persons and the use of reasonable force.
In cases of assault or battery where the plaintiff alleges excessive
force, the defendant may plead that they were using reasonable force, or
that the officer was acting in good faith.
As found in State of New South Wales v Williamson“A
lawful arrest can provide the legal justification for what would
otherwise be the tort of false imprisonment. If reasonable force is used
in the course of effecting a lawful arrest, that can provide a legal
justification for what would otherwise be an assault or battery.”
A close analysis of the provisions of LEPRA should be conducted before the initiation of proceedings.
(2) Self Defence
Like criminal cases, self defence is available in the context of
intentional torts. For self defence to be made out, the
defendant’s tortious conduct must have been reasonably necessary for the
protection of their person. The elements to be established are:
a) The defendant believed the plaintiff was about to assault him;
b) The defendant believed that the force which he used was necessary in order to defend himself from the plaintiff’s attack; and
c) The defendant had reasonable grounds for those beliefs, in the circumstances perceived by him.
In making the determination, the court will consider the
proportionality of the response, whether the danger was imminent and
whether there were other things the defendant could have done in the
This defence is available if the defendant was responding to a threat
of imminent danger. In order to establish defence, the following must
a) That there was a threat of imminent danger; and
b) The defendant’s act is reasonably necessary to avert that danger.
The issue of consent may arise if the plaintiff has given permission
for the defendant to interfere with their person or rights. It has the
effect of transforming unlawful conduct into acceptable conduct.
Consent may be provided expressly (in words or writing), or by
implication. Implied consent depends on the plaintiff’s conduct and
surrounding circumstances. The defence will rarely arise in matters
against the police, as the authority commanded by their position often
means that consent cannot be voluntarily or freely given. In the case of
Symes v Mahon, the plaintiff followed police back to the police station
because he felt he had no choice, therefore his consent had not been
 Secretary, Department of Health and Community Services v JWB (Marions Case) (1992) 175 CLR 218.  Carter v Walker (2010) 32 VR 1;  VSCA 340.  Carter v Walker (2010) 32 VR 1;  VSCA 340, at 215 and 216.  Rixon v Star City Pty Ltd  Hutchinson v Fitzpatrick  ACTSC 43, at 54.  Section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002.  New South Wales v Koumdjiev  Thomas v National Untion of Mineworkers (South Wales Area)  1 Ch 20.  Zanker v Vartzokas (1988) 34 A Crim R 11, at 18.  Barton v Armstrong  2 NSWR 451  Slaveski v Victoria  VSC 441  ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti  VSCA 274.  New South Wales v Ibbett  HCA 57; 229 CLR 638  Bird v Jones (1845) 7 A & E 742; 115 ER 668, at 751.  TD v New South Wales  NSWSC 368, at 49.  Zaravinos v New South Wales  NSWCA 320; Sadler and Victoria v Madigan  VSCA 53.  Clavel v Savage  NSWSC 775, at 44.  Young v NSW; Young v Young (No 2) 2013 NSW 330.  Clift v Birmingham (1901) 4 WALR 20.  Beckett v NSW (Beckett)  HCA 17; 248 CLR 432, at 6.  Clavel v Savage  NSWSC 775.  Herniman v Smith  AC 305, at 319.  Abrath v North-Eastern Railway Co (1883) 11 QBD 440, at 451.  A v New South Wales  HCA 10; 230 CLR 500, at 64.  A v New South Wales HCA 10; 230 CLR 500, at 91.  Houda v New South Wales  NSWSC 1053.  Briginshaw v Briginshaw  HCA 34, 60 CLR 336.  Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd HCA 66; (1992) 110 ALR 449 at 449–50.  New South Wales v Williamson  NSWCA 183  May v Thomas  WASCA 176.  Fontin v Kataposid (1962) 108 CLR 177.  NSW v Riley  NSWCA 208.  Marions Case, at 233.  Symes v Mahon  SASR 447.
is a weird psychotic reaction in Australia to the very notion of human
rights. The mention of a charter of rights or a human rights act
produces florid denunciations of such an appalling idea. In fact, the
anti-rights people say charters or bills of rights could be one of the
worst things for democracy and pitchfork us into a dark age from which
we would struggle to recover.
Yet, all the major common law countries have national human rights
acts or bills of rights, but not good ol’ Australia, which defiantly
holds back the tide of the global rights movement. UK citizens are prone
to make put-down remarks about Australia’s backwards jurisprudence
where the nation subsists in a human rights void.
Contrary to the over-blown forecasts of doom, the human rights
regimes in the UK, Canada, New Zealand, the USA have not reduced those
places to judicial tyrannies. It should be noted, however, that the new
Tory prime minister, Theresa May, wants Britain out of the European Convention on Human Rights.
In Australia the the Victorian government has announced a minimalist
response to the human rights reforms proposed in a review that was
published nine months ago.
The Victorian attorney general, Martin Pakula, says he is keen to promote a “human rights culture” in Victoria, but as yet no decision has been made on allowing citizens to bring actions for breaches of charter rights.
A proposal to extend the human rights “culture” to the private sector
has not been accepted, while giving the Equal Opportunity and Human
Rights Commission power to conduct dispute resolution for charter
breaches is under “further consideration”.
decision on whether citizens can seek stand-alone remedies for breaches
of the charter of rights is also on the back burner. The soft options have been adopted while the more challenging ones are yet to be grappled with.
Emily Howie, director of advocacy and research at the Human Rights
Law Centre in Melbourne, said it was disappointing that Victorians still
could not bring actions to enforce the rights provided under the
“To show it’s serious about protecting people’s human rights,
particularly people with lived experience of disadvantage, the
government must ensure access to real remedies. Unenforceable rights
struggle to be more than aspirational ideas. For people whose rights are
violated, it’s critical that they can do something about it,” said
A parliamentary committee in Queensland has just completed a report
on whether that state should adopt a human rights act and again the
outcome has been disappointing, with the committee splitting on party
There were almost 500 submissions,
overwhelmingly in support of some sort of human rights protections, yet
the LNP members didn’t want a bar of it. The Labor members of the
committee opted for a compatibility model, where new legislation is
supposed to be compatible with human rights, yet without restricting the
passage of incompatible laws. The Labor members went so far as to say
that the judiciary should play no role in any complaint process.
The main contentions against a national human rights act for
Australia rarely, if ever, make much sense. The prime objection is that
we’d be handing over a lot of law-making power from parliamentarians to
unelected judges. This either suggests that judges should be elected,
which is a really bad idea, or that our rights are best protected by
politicians. The ballot box is all we need – something that is
delusionally out-of-step with reality.
We’re not talking here about human rights that are constitutionally
embedded and immoveable. The models under discussion are confined to
legislation, which can be amended or repealed by parliamentarians. The
politicians ultimately are in charge of the law, not the judges.
Another well-worn objection to legislating for the protection of
human rights is that the existing common law is such a magnificent
creature that no more needs to be done. It’s a strange argument given
that the rest of the common law world has developed enforceable rights
regimes for the very reason that judge-made law is not up to the task.
Indeed, Australia’s judge-law has done nothing noticeable to bring
balance to the stream of terror-related legislation, anti-protest laws,
marriage inequality, permanent detention without charge, invasions of
privacy, Indigenous disadvantage and inequality, and more.
Matters that are typically included in charters of rights include:
equality before the law, fair hearings, protection from torture and
cruel treatment, protection from retrospective criminal laws, freedom
from forced work, freedom of movement, privacy, reputation, religion and
belief, peaceful assembly, cultural rights, property rights, liberty
The point about having fundamental rights statutorily enshrined is
that they should then be capable of being judicially balanced against
competing rights or other overriding legislative considerations.
In the Australian Capital Territory, the courts are required to
interpret legislation in a manner compatible with human rights and the
supreme court can issue declarations of incompatibility. There is a
stand-alone cause of action for breaches of rights by ACT public
authorities, but the remedies do not include damages.
Even so, the ACT human rights commissioner has said that the ACT “had
rarely made a difference to the actual outcome of cases, and the direct
right of action remained under-utilised”.
The Commonwealth went through a human rights flutter in the Rudd era
when, in 2008, Father Frank Brennan was appointed to chair a national
human rights consultation. On behalf of the Liberal party, George
Brandis said that “a statutory bill of rights is not the best model for
advancing human rights”.
Tony Abbott warned that, “Bills of Rights are leftwing tricks to
allow judges to change society in ways a parliament would never dare”.
a legislative compatibility model with the high court declaring
existing legislation incompatible and referring it back to parliament
Former high court justice Michael McHugh thought there were constitutional problems with that approach and it wouldn’t work.
We’ve ended up with a Commonwealth parliamentary committee
that is supposed to scrutinise legislation for human rights compliance,
but in the process we still managed to get rights-crushing data
retention and the worst excesses of border protection.
has said it would be preferable for the parliament to give legislative
effect to the International Covenant on Civil and Political Rights and
“if thought necessary” the Covenant on Economic, Social and Cultural
We’re in tribal territory here. Human rights
are now locked into the ideological and cultural divide. You can join
the dots: anti-human rightists are also likely to oppose same sex
marriage, take a hard line on law and order, and detest the UN and its
Yet, in an environment of increasing uncertainty and threat the last
thing a civilised society should do is close the door on its humanity.
As Churchill is supposed to have said, but no one can find the exact quote: “After all, what are we fighting for?”