I have made previous comments on claims that the COVID19 restrictions are somehow unlawful because of the infringement of our rights. It’s not a debate I really want to get into but I received this comment in response to the post “COVID19 and the Law of Australia” (May 16, 2020)
The post was a link to online resources so people could see what the laws were and it included a discussion on the constitutionality of the response. I did make it to direct people there rather than here, a blog on emergency law. But I did receive this comment via facebook:
Although we don’t have a Bill of Rights as the U.S does, do we not have Rights under Common Law? So the question I’d ask is ‘have our rights been marginalised or removed contrary to our common law rights ‘?
And preparing an answer took so much work and whilst not directly on topic for this blog, given the discussions that have occurred, that it seemed a shame to have it lost on Facebook so I repost it here as an post in its own right.
First, even if there were rights under common law, someone has to actually challenge the matter in court. Asserting them won’t make a difference (see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/).
If you want to rely on the common law to protect rights, then you want to rely on a fundamentally un-democratic institution (albeit an independent judiciary although not elected, is a bulwark of democracy). The common law comes from the King sending his judges to travel the country and apply the ‘common’ law but as many people complain, judges are unelected, so the Parliament has the power to make laws including laws that modify or set aside the common law.
In Kable v DPP (NSW) [1996] HCA 24 Dawson J said:
Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s Case (1572). He said:
“And it appears in our books, that in many cases, the common law will … control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.
Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament’s power as “transcendent and absolute”, not confined “either for causes or persons within any bounds”. He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity.
However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity. But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself “that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor”
There are many claims by people thinking there is some overriding law – many relate to the idea that we cannot be forced to hold a licence or register a car due to some undefined common law right to travel. People have gone to gaol defending such views. For a discussion of the ‘sovereign citizen’ movement see https://youveenteredlawland.com/freeman-on-the-land-australia/
For a recent discussion see Flowers v State of New South Wales [2020] NSWSC 526. In that case Mr Flowers argued that he had an inalienable right to have his civil (not criminal) claim determined by a jury notwithstanding the provisions of the legislation in that state. Harrison J said:
“Mr Flowers contends that trial by jury is an inalienable right guaranteed to him by the Magna Carta over 800 years ago and remains the common law of the land…
“Mr Flowers submits that denial of his right to a trial by jury is “sinister, vile and reprehensible”. Lord Edward Coke also gets a run, telling me that “Common law doth control Acts of Parliament and adjudges them when against common right to be void”. I feel confident I have heard similar submissions before…
“Mr Flowers also reminds me that no “evil counsellors, judges and [sic, or] ministers” can be allowed to subvert or extirpate the laws and liberties of the people: Bill of Rights, 1688. To deny trial by jury is to deny democracy and to deny democracy is treason.
“Mr Flowers’ contentions appear to proceed upon the underlying basis that, to the extent to which s 85 of the Supreme Court Act or UCPR 29.2 operate somehow to modify or extinguish what would otherwise be an automatic right to a trial by jury, they are ineffective or void. Mr Flowers maintains that no Act of Parliament can take away his right to trial by jury. In Mr Flowers’ submission, rights never die. Mr Flowers asserts that “people are not subject to statute law, which is inferior to common law, and are only accountable to common law that is made and imposed by their equals, i.e. accountable only to juries”…
“At least one difficulty with Mr Flowers’ contentions is that they are no more than that: unsupported assertions. Mr Flowers offers no evidence that could support a claim that, for example, the Supreme Court Act is void or was not enacted according to law.
“Another difficulty lies in the fact that this Court and the Court of Appeal have consistently operated upon the basis that s 85 of the Supreme Court Act is a valid law of New South Wales and have applied it accordingly. In the absence of an arguable legal basis supported by evidence that suggests that I should take a different approach, I consider that I am bound to apply the provision according to its terms.
“It will be apparent that I consider that s 85 operates and applies in the present circumstances to govern the question of the mode of trial.”
And so, the application for a trial by jury was rejected and the law set out in the Supreme Court Act was applied.
In a patient discussion with a self-represented litigant before the High Court (Essenberg v The Queen [2000] HCATrans 297) McHugh J said:
“… we are ruled by law and law is the law of Parliament; it is called legal positivism. It is the law laid down. This Court makes decisions and, unless they are constitutional decisions, the Parliament can overrule them and often does. We lay down a law, Parliament can change it. It is the democratic right of the people to do it through their parliamentary representatives. So, what you are faced with is the Queensland Parliament enacting this legislation, which you obviously think is a bad piece of legislation and infringement with your rights and which other members of the community think is a good thing, that is something to be debated at the ballot box, but it is not a constitutional matter…
“Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. “
Executive government, the Ministers and government departments, come before courts and are required to comply with the law written by Parliament (which the Ministers are part of). But (to again quote McHugh J) “Parliament – some people would regard it as regrettable – can, in effect, do what it likes.”
As for your rights – what are they?
Freedom of association? “This Court has held, more than once, that no “free-standing” right of association is to be implied from the Constitution” and “The right of association under the common law is subject to legislative regulation …” (Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 upholding NSW ‘anti-bikie’ laws).
Liberty? “It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”…” (Al-Kateb v Godwin [2004] HCA 37 upholding indefinite detention of a person who could not be deported to another country even though he had not be tried or convicted of any offence). And in Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64:
“… a Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial…. No express prohibition against the enactment of Bills of Attainder or Bills of Pains and Penalties is to be found in the Constitution. However, it is a necessary implication of the adoption of the doctrine of the separation of powers in the Constitution that the Parliament of the Commonwealth cannot enact such Bill …An Act of the Parliament which sought to punish individuals or a particular group of individuals for their past conduct without the benefit of a judicial trial or the procedural safeguards essential to such a trial would be an exercise of judicial power of the Commonwealth and impliedly prohibited by the doctrine of the separation of powers.”
The separation of powers enshrined in the Commonwealth constitution doesn’t stop states passing a Bill of Pains and Penalties provided that they do not involve the Courts in executive decision making (Kable v DPP [1996] HCA 24; Fardon v Qld [2004] HCA 46).
A right to due process and a lawyer?
Howie, Sattler and Hood, Hayes and Eburn Criminal Law and Procedure in NSW (6th ed, 2019, LexisNexis) p. 654:
“The Australian Security Intelligence Organisation (ASIO) can obtain warrants to access computers, use listening devices, use concealed tracking devices and inspect postal articles (Australian Security Intelligence Organisation Act 1979 (Cth) ss 25A–27). ASIO may also obtain a warrant to permit the detention of a person for questioning. A warrant can be issued that allows ASIO to detain any person for up to seven days. The warrant may be issued where the issuing authority is satisfied that such questioning will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. The person detained need not be suspected of any offence, only that he or she has information of interest to ASIO. Once detained under a warrant, ASIO may (but need not) tell someone (for example, a lawyer or the detained person’s family) that the person has been detained. A person detained may be questioned and commits an offence if he or she does not answer these questions (Australian Security Intelligence Organisation Act ss 34A–34ZY). These provisions were initially supposed to lapse in July 2016, but have since been extended several times. At the time of writing they were due to expire on 7 September 2019 (ASIO Act s 34ZZ)….
The ongoing, so-called ‘war on terror’, and anti-terrorism legislation reflect a fundamental shift in the traditional balance between civil liberties and the power of the state and its security, intelligence and police forces by dramatically reducing the fundamental freedoms outlined above…”
And recent news suggests that there are moves to further expand the policing powers to include detention of people as young as 14 and to remove the need to get court issued warrants (see https://www.abc.net.au/news/2020-05-14/peter-dutton-introduces-bill-giving-asio-powers-to-talk-to-teens/12246886)
Conclusion
If you are relying on the common law, rather than your choice when you cast your vote, to protect what you consider are fundamental rights and freedoms you are pinning your hopes on a flimsy safeguard. Courts and judges do recognise that there are fundamental rights and read down legislation where they can to protect them within the words used by the legislature, but at the end of the day ‘a court may not question the validity of a statute [with the exception of the High Court when determining whether a statute is within power as allocated by the Constitution] but, once having construed it, must give effect to it according to its tenor”.’
Australian Emergency Law 
Oh where to start? Does the strawman theory ‘aptly fit what is a stake in this conundrum of rights?’ No, it doesn’t. What are my thoughts regarding the Strawman versus and natural justice? The strawman idea, that there are somehow two persons and the identification of a person by a name written in ALL CAPITALS does not refer to the natural person is a weird non-sensical piece of ridiculous clap-trap written by morons on cloud cuckoo land.
I really enjoyed this article, thanks. If I could add one point, it would be…
Meads v Meads ABQB 571:
“It is helpful at this point to make a few comments on the manner in which OPCA litigants often use the term “common law”. OPCA litigants often draw an arbitrary line between “statutes” and “common law”, and say they are subject to “common law”, but not legislation. Of course, the opposite is in fact true, the “common law” is law developed incrementally by courts, and which is subordinate to legislation: statutes and regulations passed by the national and provincial governments. The Constitution Act provides the rules and principles that restrict the scope and nature of legislation, both by jurisdiction and on the basis of rights (ie. the Charter). Persons who claim to only be subject to the “common law” also do not appear to mean the current common law, but typically instead reference some historic, typically medieval, form of English law, quite often the Magna Carta, which, as I have previously observed, is generally irrelevant.”
Thanks for that. I was not familiar with the citation ABQB but I see it is the Court of Queen’s Bench of Alberta, Canada. That case was decided in 2012 and can be found on the CanLII database at http://canlii.ca/t/fsvjq.
And for an interesting commentary on the case see https://ablawg.ca/2013/04/08/what-has-meads-v-meads-wrought/#:~:text=Rooke's%20decision%20in%20Meads%20v,Argument%E2%80%9D%20(OPCA)%20litigants.
Thank you for drawing this decision to my attention.
No worries. I find in online debates with the majority of OPCA adherents, it matters not how accurately one cites decisions or how succinct and unambiguous the ratio is described, they simply disregard it, relying instead on this fictitious form of “common law” invented by the US Posse Comitatus Movement in the 1970’s.
Regarding Meads v Meads ABQB 571, this is an evolution of the earlier movement in Canada, which imported the US Posse Comitatus concepts and adapted them to suit Commonwealth domestic arrangements and enactments, including the “strawman” myth.
Meads v Meads ABQB 571 is recognised on by courts in most nations with a legal system based in the common law, including Australia, as an accurate and comprehensive statement in law regarding the premises of the OPCA movement. (see Crossroads-DMD Mortgage Investment Corporation v Gauthier, 2015 ABQB 703 (paras 32-46)
It is regularly cited by Australian courts, including in Ennis v Credit Union Australia [2016] FCCA 1705; Kosteska v Magistrate Manthey & Anor [2013] QCA 105; Adelaide City Council v Lepse [2016] SASC 66; Deputy Commissioner of Taxation v Woods [2018] FCCA 1815; Lion Finance Pty Ltd v Johnston [2018] FCCA 2745; Coshott v Spencer [2016] NSWDC 43; ACM Group Ltd v Jenner [2014] QMC 7; Hewitt & Corbett 7 Anor [2016] FCCA 776; K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 / 621; Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195; Rossiter v Adelaide City Council [2020] SASC 61; Bauskis v Wainhouse & Ors [2020] NSWCA 17; Petrie; Trustee of the property of Aitken (Bankrupt) v Aitken & Ors [2019] FCCA 16; Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86; Deputy Commissioner Of Taxation v Cutts (No.4) [2019] FCCA 2866 and countless cases through the lower courts.
There are also many other Australian cases that apply the same principles in Meads v Meads ABQB 571 without citing it, which is an ongoing project for me in compiling the cases and noting the authorities cited for the particular OPCA or constitutional misconception.
https://thefreemandelusion.wordpress.com/
I’ve looked at some of those cases – the lunacy that people try to adopt is literally (as judges have noted) beyond comprehension.
I find the commentary by Donald J. Netolitzky most interesting, including “The History of the Organized Pseudolegal Commercial Argument Phenomena in Canada”. He also authored a paper — “OPCA in Canada; an Attack on the Legal System”. And along with Justice Rooke, in 2016 he co-published “A Judicial Guide to OPCA Litigation: Tips and Tricks for members of the judiciary.” examining 725 reported Canadian court decisions that involved OPCA litigation in some form.
I particularly like the following in description of the movement in “The History of the Organized Pseudolegal Commercial Argument Phenomena in Canada”:
“Following the rise of the “Strawman,” a kind of new, international pseudolegal tradition has emerged with accepted elements from many different sources, entwined with a matrix of false or distorted history and conspiratorial belief. This might be called the “OPCA sphere.”
For a novice visitor, the OPCA sphere is a strange place. Its occupants see themselves surrounded by all manner of threats and conspiracies. They desperately search for uncontaminated sources of food and water. Aircraft contrails are scrutinized for evidence of government sponsored dissemination of chemicals. Spree shootings and terrorist incidents are “false flag” operations conducted by hidden hands to manipulate and control the public. The OPCA sphere is permeated with impending threats, be it financial enslavement at the hands of “the Banksters,” foreign or domestic military intervention, or ecological catastrophe. Police and government employees are nothing more than thugs.
These apprehensions are closely linked to a sense of superiority — those who live in the OPCA sphere see themselves as possessing powerful, secret, or unusual knowledge, and that makes them very much better and smarter than the average person. Claims of courtroom success are met with excitement, though failure is not so often disclosed. Occupants promote their preferred guru and reinforce each other’s conspiratorial beliefs by circulating and recirculating documents, videos, and “meme pictures.” Those outside the OPCA sphere are dismissed; they are either enemy clients, paid government shills, or “sheeple.”
The gulf between the OPCA sphere narrative and mainstream Canadian perspectives and legal jurisprudence has another troubling implication. Unsuccessful OPCA litigants sometimes view their in-court failure not as clarification of the law, but rather conclude that the judges who have rejected their arguments are corrupt and have failed to uphold the true but concealed common law or natural law. As previously noted, there is little way for court or government actors to rebut what is, effectively, a faith-based belief in the “Strawman” and its associated conspiratorial, ahistorical narrative.
Courts refuse attempts by OPCA litigants to enforce their beliefs via civil litigation against wrongdoers, including judges and lawyers. Will OPCA litigants then attempt to take “the law” into their own hands?”
Pages 287 to 290 of Quick and Garran’s Annotated constitution of the Australian Commonwealth cover the origin, full intent and meaning of the phrase “Humbly relying on the Blessing of Almighty God”.
One point can be deducted from the “for and against” comments in the Constitutional Conventions, and that is that the passage by no means granted the Commonwealth any powers to pass laws with respect to religion, and that there was sufficient safeguards against such laws in section 116 of the Constitution. It holds no special legal effect or implication, other than a reflection of the petitions at the time, which was actually noted in the Constitutional Conventions to be affected by the future trends in the population.
We actually do have a bill of rights 1688 and is still in force do your home work properly also ruling 1959 all courts must insure constitutional validity
I’ve done my homework in the form of a Bachelor of Laws, Master of Laws and a PhD in law. And you?
The English parliament passed a Bill of Rights in 1688. Governor Arthur Phillip, in 1788, brought with him the laws of England including the Bill of Rights as it was then in force. Since the passage of relevant legislation including the Imperial Acts Application Acts in the states and Territories, the Commonwealth of Australia Constitution Act 1900 (UK) and the Australia Acts of 1986 those remaining vestiges of UK constitutional law are incorporated into Australian law but are subject to amendment and change in the same way any other law – other than the Australian Constitution – may be amended. The Bill of Rights is at least in part, still part of the law of Victoria (see Imperial Acts Application Act 1980 (Vic)) but it does not have the status of a modern bill of rights such as that set out in the Constitution of the United States or even the Human Rights legislation of Victoria.
The Commonwealth came into existence in 1901 constituted by the Commonwealth of Australia Constitution Act 1900 (UK) and subject to the terms of the Constitution as set out in s 9. It did not inherit all the laws of England in the way the states did. It was and is free to make its own laws including laws inconsistent with the laws of the UK. The Bill of Rights of 1688 may have remnants in state law, but not Commonwealth law. It is correct that as Australian’s we do not have the benefit of a Bill of Rights.
As McHugh J said in the quote in the post, above
“Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. “
If you mean by a ‘Bill of Rights’ some legislation that has that name then yes there are some vestiges of the 1688 Act still in force in the Australian states and territories. If you mean ‘a list of the most important rights to the citizens of a country’ (see https://en.wikipedia.org/wiki/Bill_of_rights) and in particular a Bill that is intended to limit the power of the legislature, then no, we do not have a Bill of Rights.
And if you’re going to refer to a judicial decision of 1959, best to name it and give the citation so a reader can check it.