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:
- Is the Constitution temporarily suspended?
- If so, when is the suspension lifted, how would people know?
- If it is suspended, is this legal and lawful to do according to the Constitution?
- 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?
- 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:
- 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.
- 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.
- 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.
- 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.
- 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.
Australian Emergency Law 
The ruling in relation to Magistrate Duncan Reynolds, if I remember correctly relates to a passenger of a vehicle who was charged with assault police. The vehicle was intercepted to check if the occupants had warrants. The passenger did and when police went to arrest him he kneeded one of them in the groin. The above quote can be attributed to the fact that there are no provisions for stopping people to check if they have warrants, as the members stated was the reason for the intercept. Had the members stated that they intercepted the vehicle to perform a licence check or pbt on the driver, the outcome would likely have been different, in my opinion.
I was led to believe that ‘IF’ and I repeat if one Successfully declared themselves ‘A sovereign’ that under common law they would not be subject to the laws of that state. Their property boundaries and subjects / family within said boundaries would also no longer be subject to state laws.
A few years back I was fined for speeding (They changed the speed limit from 80 to 60kph 2 days prior to Christmas), I refused to pay and went to court and I was coached on my common law rights and successful got off the fine and points. I stated to the magistrate “as a sovereign I do not recognise the authority of this court and request that this case be dismissed and heard under common law. I also request that You provide me with the name and details of any hurt or damaged party effected by my speed!”
The magistrate acknowledge that I in fact had the right to do this. But also told me I would end up spending the next 12mths in various courts before ultimately winning!
He said if I pleaded guilty to the charge he would let me off on a good behaviour bond and eliminate the fine and points.
Of course I took the option.
My question is, could this work in the case of a Covid fine or injustice
Let me repeate again, and assure you, that if you were ‘led to believe that ‘IF’ and I repeat if one Successfully declared themselves ‘A sovereign’ that under common law they would not be subject to the laws of that state’ then you were led to believe utter bullshit. If that were true gaols would not be full and you might think that it would mean that anyone could murder or rob you. If such a ridiculous rule applied to you, it would apply to everyone. It is rubbish.
You were not ‘fined for speeding’. You were issued with an infringement notice. It is everyone’s right to choose not to pay an infringement notice and have the matter dealt with by a court. The magistrate may have acknowledged that you had a right to enter a plea of ‘not guilty’ and have the matter determined by the court according to law (not just the common law). And that it would have taken 12 months to resolve. When you entered a plea of guilty you admitted you were guilty of the offence. The Magistrate then had all the sentencing options open to him or her. A good behaviour bond is still a penalty imposed for breach of the law even if the Magistrate did not impose a fine and even if a non-conviction order (if that is what it was) meant no loss of demerit points. You did not however ‘get off’ you admitted your guilt.
Criminal law does not require proof that anyone was ‘hurt or damaged’ by the offending conduct.
No your claims to be exempt from the law of the state or territory because you are a sovereign citizen did not work in your driving matter, it could not work in the case of a Covid fine or injustice. It is bullshit theory spread by morons and should be ignored.
Very comprehensive! Thanks.
Cheers,
Devo.
Matthew Devlin | Equipment Officer & RFSA Delegate | Ku-ring-gai Bush Fire Brigade
President | Hornsby/Ku-ring-gai Rural Fire Service Association | Division 4
*NSW RURAL FIRE SERVICE*
7 Esk Street, North Wahroonga, NSW 2076
*M *+61 404 911 249 *D *+61 2 9230 7114 *E *matt.devlin@kbfb.org.au
*PREPARE. ACT. SURVIVE.*
On Mon, 3 Aug 2020 at 20:48, Australian Emergency Law wrote:
> M. Eburn posted: “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 th” >
I wrote an article on DPP v Hamilton [2011] VSC 598 a while ago, it is widely quoted online without people understanding the principles raised in the case. A similar situation is with DPP v Kaba [2014] VSC 52.
https://freemandelusion.wordpress.com/2018/07/13/police-powers-in-victoria/
Thanks again for this information. One can see how the sovereign citizen movement could take the words of Bell J in DPP v Kaba [2014] VSC 52 – out of context – and use them to support their claims. His Honour outlines many of the common law rights such as the right to liberty and freedom of movement and also the principles that statute law should be interpreted in the least restrictive way possible. In short, if parliament want to deprive a person of what are considered fundamental rights and freedoms it has to do so clearly and unambiguously. Pages 16-80 would I suggest give those adherents of the sovereign citizen movement great comfort; but that would be out of context. Because having gone through that history and acknowledging that parliaments can curtail what are perceived to be fundamental rights and freedoms, His Honour did find that had been done and by virtue of the relevant provision of the Road Traffic Act and ‘Contrary to [the Magistrate’s] interpretation, police do have a power of random stop and check under that provision.’
They did not have the power to stop the passenger, who was not suspected of any wrongdoing, and demand his name and address but that too will be of little relevance to those objecting to police powers in the current pandemic response where different statutory provisions are relied upon.
You keep referring the Australian constitution. I’m lost already, can you please clarify which constitution you’re quoting. Is it a. The constitution of Australia or b. The constitution of the commonwealth of Australia.
What’s the difference? It is formally s 9 of the Commonwealth of Australia Constitution Act 1900 (Imp). You can read it here https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution