This email was received before I made my post State of Disaster declared in Victoria (August 3, 2020) and therefore before I said ‘Further correspondence will not be entered into’. In light of that and given that they are serious questions, I’ll answer them.

My correspondent says:

I would like to know if during declared states of emergencies:

  1. Is the Constitution temporarily suspended?
  2. If so, when is the suspension lifted, how would people know?
  3. If it is suspended, is this legal and lawful to do according to the Constitution?
  4. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?
  5. Is the constitution simply never suspended regardless of what ‘state of emergency’ is taking place or has been declared?

Your blog stated: “The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact.”

Does this therefore legally invalidate any declaration of a state of emergency as well?

In relation to all that is happening with “mandatory” face mask wearing, I’ve been trying to research constitutional law and any precedents that may exist.

I have found that Magistrate Duncan Reynolds in Melbourne, in July 2013 stated that following:

“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory surge of such power”

In addition, Justice Stephen Kaye said in a Melbourne Supreme Court Ruling on November 25, 2011:

“It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

I understand this is a very long message, and I apologise for that, but in this world ruled by language and legalise, I am a mere common man doing my utmost best to ensure that I retain whatever rights and freedoms have been guaranteed to me and all people through Common Law and the Constitution.

The numbered questions

The answers to the numbered questions are:

  1. Is the Constitution temporarily suspended?

No, the (Australian) Constitution is not temporarily suspended. The Emergency Management Act 1986 (Vic) s 24(2)(b) says that during a declared state of disaster

… if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

The Constitution of Victoria is an Act of the Victorian Parliament (Constitution Act 1975 (Vic)). Presumably the Minister could ‘suspend’ parts of the Victorian Constitution where the criteria in s 24(2)(b) have been met.

  1. If so, when is the suspension lifted, how would people know?

On the basis that I think we’re talking about the Australian Constitution there is need to answer that question as there is not, and cannot be any suspension.

  1. If it is suspended, is this legal and lawful to do according to the Constitution?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. Is the constitution simply never suspended regardless?

Yes, the Australian constitution is never suspended.

Other questions:

Does the absence of Commonwealth emergency management legislation ‘legally invalidate any declaration of a state of emergency as well?’

Answer: No, they’re unrelated. The States are not subservient to the Commonwealth in the way local government is subservient to state government. The States do not need ‘authorising’ Commonwealth laws. The States can make laws on any subject they like other than those subject areas that are in the exclusive power of the Commonwealth. The presence or absence of Commonwealth emergency management legislation means nothing about the validity of state emergency management legislation.

The cited case law

The cases cited appear to come from a website Police Powers – Our Rights and Responsibilities. I’m not sure who the authors are and they don’t give the case names or citations. Finding decisions of magistrates is very difficult (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)). I infer that the decision by Kaye J was his decision in DPP v Hamilton [2011] VSC 598 ((25 November 2011).

In that case Mr Hamilton was approached by police who wanted to ask questions about whether he had left a restaurant without paying the bill. Mr Hamilton ran away and was pursued by police. He was charged with a number of offences all of which were ultimately dropped leaving only a charge of resisting a police officer in the execution of his duty. The court held that Mr Hamilton was not guilty as the police officer had no authority to detain him and therefore running away was not resisting the officer in the execution of his duty.

His Honour said (at [3]):

At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him.

The quote ascribed to Kaye J in my correspondent’s question does not appear in the judgement. That is His Honour did not say

It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

The third sentence in that quote – ‘The conferring of such a power …’ was the submission of one of the lawyers, not the judge’s reasoning (see [36]).

It is however true that without a specific statutory obligation, a person is not obliged to answer police questions or provide details of one’s identification. In Victoria s 456AA (see Policing the public health response via Facebook (July 27, 2020)) does require a person to provide identification details in the circumstances set out in that Act. In New South Wales a person has to provide identification if they are:

  • driving or accompanying a learner driver (Road Transport Act 2013 ss 175 and 176);
  • responsible for a vehicle where the driver is alleged to have committed an offence (Road Transport Act s 177)
  • involved in a traffic accident (Road Rules 2014 (NSW) r 287);
  • the owner, driver or passenger in a vehicle that police suspect has been used during the commission of a serious offence (LEPRA s 14);
  • suspected of committing an offence on a public passenger service (Public Transport Act 1990 (NSW) s 55).
  • suspected of being under 18 and carrying or consuming alcohol in a public place (Summary Offences Act 1988 (NSW) s 11);
  • suspected of being at or near the scene of a serious offence and police believe that they have information that would assist them (LEPRA s 11(1)).

A person is also required to confirm their identity if police:

  • or a sheriff’s officer is trying to serve a fine default warrant (Fines Act 1996 (NSW) s 104);
  • are trying to issue a penalty notice (Criminal Procedure Act 1986 (NSW) s 341);
  • have emergency public disorder powers and the person is in a target area, and the police suspect that they have been or may become involved in public disorder (LEPRA s 87L);
  • suspect that an Apprehended Violence Order has been made against the person (LEPRA s 13A);
  • give a ‘move-on direction’ and the person’s identity is unknown to the police (LEPRA s 11(2)).

This list should not be considered as comprehensive. There may be other provisions in specialised legislation that compel people to confirm their identity. There are many examples that regardless of any common law position, the legislature has made laws that do require people to provide information to police.

An issue in DPP v Hamilton was whether statutory changes allowed police to arrest for the purposes of investigation. At common law, the only purpose of arrest is to put a person before a court. Police had to already have ‘reasonable suspicion’ that the person had committed the offence and have at least prima facie evidence to justify an arrest (Williams v R [1986] HCA 88). Legislatures have now provided that between the arrest and putting the person before a court, the person may be held for the investigation period to allow police to undertake further investigation (see Crimes Act 1958 (Vic) s 464 to 464H). An argument in DPP v Hamilton was that these changes allowed an arrest for the purpose of investigation. The court held that it did not, police could still only arrest if they had the evidence and formed the view that they intended at that time to prosecute the offender (see [35] and s 464I).

At best this decision confirmed that at common law, police do not have a power to stop a person to ask them questions and 464 to 464H of the Crimes Act 1958 (Vic) did not change that. His Honour was not considering the power under s 456AA of the Crimes Act or any other legislative power as there was no suggestion that was the power the police were trying to exercise.

Conclusion

Whatever rights and freedoms are guaranteed to you ‘and all people through Common Law and the Constitution’ are very limited.

Any common law rights are subject to modification by Parliament. If that were not the case we would still be ruled by laws from the 12th century, woman would lose property on marriage and men could still discipline their wives provided the cane was not larger than their little finger. Laws have to be updated and that is what Parliaments can and do do – see Common law rights v Parliament’s legislation (May 17, 2020).

The Australian Constitution does not guarantee any rights other than the right to take part in the democratic process. As the authors of Emergency Powers in Australia (2nd ed, Cambridge, 2019) say (at pp. 67-68):

The Constitution contains no general individual rights protections of the sort found in most contemporary constitutions. Therefore, statutory conferrals of emergency powers are not amenable to challenge on the basis that they infringe human rights.

There is no bill of rights in the Australian Constitution so the ‘rights and freedoms … guaranteed to [you] and all people through … the Constitution’ are very limited indeed.