Saturday, July 30, 2016

Top mobile speed camera locations in Victoria




Camouflaged police officers keep motorists in their radar gun's sights near Healesville in the Yarra Ranges. (source heraldsun.com.au)

  • Please note that every single 'fine' should be taken to court to ascertain its lawfulness.
  • Also note that speed camera and red light camera 'fines' also are unlawful, and must be challenged in court.
 So here's the list as compiled by news.com.au as of 20 June 2016, by the number of drivers caught per hour.



1. Banksia Street, Heidelberg Heights
2. Power Road, Doveton
3. Darian Road, Torquay
4. Barry Road, Coolaroo
5. Broad Gully Road, Diamond Creek
6. Erskine Road, Macleod
7. Wungan Street, Macleod
8. Bulla Road, Bulla
9. Nepean Highway, Aspendale
10. Maltravers Road, Eaglemont
11. Great Ocean Road, Skenes Creek
12. Pascoe Vale Road, Strathmore
13. Bell Street, Coburg
14. Ryans Road, Eltham North
15. Greensborough Road, Macleod
16. The Boulevard, Thomastown
17. Homestead Road, Berwick
18. Lum Road, Wheelers Hill
19. Heidelberg Road, Clifton Hill
20. Raglan Street, Preston
21. Boronia Road, Vermont
22. Maroondah Highway, Healesville
23. Research-Warrandyte Road, Research
24. Blyth Street, Altona
25. Ormond Esplanade, Elwood
26. Rosanna Road, Rosanna
27. Elizabeth Street, Mooroopna
28. Gallaghers Road, Glen Waverley
29. Beach Road, Black Rock
30. Brockley Street, Wodonga
31. Harvest Home Road, Epping North
32. Pascoe Vale Road, Oak Park
33. Centenary Drive, Mill Park
34. Cairns Road, Hampton Park
35. Derrimut Road, Hoppers Crossing
36. Station Street, Ferntree Gully
37. Wanda Street, Mulgrave
38. Sunbury Road, Melbourne Airport
39. Pascoe Vale Road, Glenroy
40. Dorset Road, Boronia
41. Melton Highway, Melton
42. Edward Road, Chirnside Park
43. Greenwood Drive, Bundoora
44. Linsell Boulevard, Cranbourne East
45. Belmore Road, Balwyn
46. Plenty River Drive, Greensborough
47. Normanby Avenue, Thornbury
48. Elgar Road, Box Hill South


Australian Census Online Login

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).

It says:

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:


  • 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.

ALL of your smartphone data easily accessible from an app eg Pokemon

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. 


IMAGINE someone hacking your smartphone and having access to all of your personal data, including contacts, calendar and GPS location. 

Now, 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.

This 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 vulnerabilities.

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.

As the technology editor, I have written my fair share of articles relating to hacking and have even experienced it first-hand after being caught out in the Ashley Madison scandal.

However, I never knew just how easy it was for a hacker to gain access to your smartphone.

“You can have lots of blocks and barriers on the phone, but most of the attacks we see today are happening through social engineering,” Nadav told news.com.au.

“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.

“The 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.

While 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.

There 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.

He 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.

This 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.

To 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.

Thursday, July 28, 2016

The Australian Census 2016 - What you really need to know?

Not many serf's would be aware of the (real) state of 'law' on an occupied land like Australia.

Why Occupied?

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?

Plenty!

The Constitution stipulates that the Australian government be called the 'Commonwealth of Australia', containing the Coat of Arms as in the document.

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 Western Australia?

2). Is this business a real government entity, as per Australian Constitution?

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 dishonour?

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 'anonymous'?

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 ???

Wednesday, July 27, 2016

Suing Police for Assault, False Imprisonment or Malicious Prosecution


Where police act outside their powers, it may be possible to bring civil proceedings for damages arising from assault, false imprisonment or malicious prosecution.

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:

A) Assault/Battery

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.[1]

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.[2] 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 person.

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[3], 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.[4]

The presence of hostility in an act is what distinguishes a battery from contact in the ordinary course of daily life.[5]

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[6] 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.[7]

Assault

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,[8] 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 threat.[9]

Words alone can constitute an assault. In Barton v Armstrong[10] a politician made threats over the telephone and the plaintiff was successful in proving an assault. Similarly, in Slaveski v Victoria[11], 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[12], 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.

In the case of New South Wales v Ibbett[13], plain clothes police officers trespassed onto a woman’s property while chasing her son, pointed a gun at her and demanded she open her garage door. This amounted to an assault.

B) False Imprisonment

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[14]. 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.[15]

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.[16]


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 apply.[17]

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 initiating proceedings.[18] A 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.[19]

(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.”[20]

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.[21]

(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 available.[22] It is, however, necessary for a prosecutor to make sufficient enquiries so as to inform himself or herself of the true state of the case.[23]

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 true;
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.”[24]

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 prosecution, and

(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.’[25]

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 Wales[26] it 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 probable cause.

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.[27] Essentially, the more serious the allegation, the more probative or stronger the evidence needs to be.[28]

Defences

There are three main defences to intentional torts, which the defendant must establish to escape liability if the tort is made out.

(1) Justification

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[29] “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.[30]
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 circumstances.[31]

(3) Necessity

This defence is available if the defendant was responding to a threat of imminent danger. In order to establish defence, the following must be demonstrated:

a) That there was a threat of imminent danger; and
b) The defendant’s act is reasonably necessary to avert that danger.[32]

(4) Consent

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.[33]
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 freely given.[34]

[1] Secretary, Department of Health and Community Services v JWB (Marions Case) (1992) 175 CLR 218.
[2] Carter v Walker (2010) 32 VR 1; [2010] VSCA 340.
[3] Carter v Walker (2010) 32 VR 1; [2010] VSCA 340, at 215 and 216.
[4] Rixon v Star City Pty Ltd
[5] Hutchinson v Fitzpatrick [2009] ACTSC 43, at 54.
[6] Section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002.
[7] New South Wales v Koumdjiev
[8] Thomas v National Untion of Mineworkers (South Wales Area) [1986] 1 Ch 20.
[9] Zanker v Vartzokas (1988) 34 A Crim R 11, at 18.
[10] Barton v Armstrong [1969] 2 NSWR 451
[11] Slaveski v Victoria [2010] VSC 441
[12] ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274.
[13] New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
[14] Bird v Jones (1845) 7 A & E 742; 115 ER 668, at 751.
[15] TD v New South Wales [2010] NSWSC 368, at 49.
[16] Zaravinos v New South Wales [2004] NSWCA 320; Sadler and Victoria v Madigan [1998] VSCA 53.
[17] Clavel v Savage [2013] NSWSC 775, at 44.
[18] Young v NSW; Young v Young (No 2) 2013 NSW 330.
[19] Clift v Birmingham (1901) 4 WALR 20.
[20] Beckett v NSW (Beckett) [2013] HCA 17; 248 CLR 432, at 6.
[21] Clavel v Savage [2013] NSWSC 775.
[22] Herniman v Smith [1938] AC 305, at 319.
[23] Abrath v North-Eastern Railway Co (1883) 11 QBD 440, at 451.
[24]  A v New South Wales [2007] HCA 10; 230 CLR 500, at 64.
[25] A v New South Wales [2007]HCA 10; 230 CLR 500, at 91.
[26] Houda v New South Wales [2005] NSWSC 1053.
[27] Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.
[28]  Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[1992] HCA 66; (1992) 110 ALR 449 at 449–50.
[29] New South Wales v Williamson [2011] NSWCA 183
[30] May v Thomas [2014] WASCA 176.
[31] Fontin v Kataposid (1962) 108 CLR 177.
[32] NSW v Riley [2003] NSWCA 208.
[33] Marions Case, at 233.
[34] Symes v Mahon [1922] SASR 447.

By Alicia Boehm

sydneycriminallawyers.com.au 26 Jul 2016

Monday, July 25, 2016

Australia's weird record on human rights and the cultural divide

There 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.

The reform recommendations were made last September in a review of the Charter of Human Rights and Responsibilities conducted by the former CEO of the Victorian Law Institute, Michael Brett Young.

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”.

A 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 charter.

“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 Howie.

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 lines.

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 Human Rights Law Centre said that this fell “well short of what’s required for adequate human rights protections”.

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 and security.

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”.

Brennan recommended a legislative compatibility model with the high court declaring existing legislation incompatible and referring it back to parliament for amendment.

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.

McHugh 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 Rights.

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 charters.

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?”

theguardian.com 22 Jul 2016