Free Australia

My comments about the SA Supreme Court ruling on the issue of Control Orders under the Serious and Organised Crime Control Act SA 2008

I have been saying for some time that this (SA) Act, SOCCA, will be found to be an illegal law - which it has.  No surprises there. I am on record of saying pretty much the reason why it was illegal, that it denied the separation of powers, hence the ONLY ruling the SC could find, or if it went to the High Court, then there.  But I have also been on record, like a broken one at that, to say that this highlights the absolute necessity for a Bill of Rights.

The next round, which may happen in SA but more likely in NSW since their Act has this issue resolved in advance will need to be fought on Human Rights issues, which because Australia HAS NO individual rights, will be particularly difficult and may well fail.  This concerns me gravely.

We ALL know these type of laws impinge upon personal freedoms and what we each see as rights, but very sadly I have to repeat: we have no rights in Australia.  This is most likely why the SA Attorney-General Michael Atkinson originally called this a "social experiment", full well knowing we have no enforceable inalienable rights.

As an outspoken person and representative of the FREE Australia Party I have seen the need to focus on two issues in particular, above and beyond all else. An ICAC for SA and secondly a Bill of Rights for all Australians.

In particular a Bill of Rights would prevent oppressive and totalitarian/dictatorial laws being able to be passed in the first place.  We would have defence under a Bill of Rights, such as the right to cross-examine evidence before the court (eg; SOCCA, Liquor Licensing Act), the right to remain silent (The Australian Crime Commission Act), the right to have legal representation (again, The ACC act), equal before the law (general principle) and so on.

If the various governments choose to continue down this path - which every indication seems to be - then ultimately we will have no defence simply because we have no rights.

Australia is the ONLY western nation that DOES NOT HAVE a Bill of Rights or similar.  No wonder they are "trialling" these type of oppressive laws in this western country (Westminster political and Judicial system) - because they can.

The only rights we think we have are those obscured under Common Law, implied in the Constitution (tenuous at best for an individual) and the Rule of Law. Each argument in each case must be argued at great expense and legal expertise, well beyond the resources of the majority of the population. No-one can actually define what unequivocal rights you might have but in any case any state or federal government can largely over-rule them. {Please read THIS paragraph again and let it soak in..}

The first battle may have been won in the SA Supreme Court, but the war will continue.  To sit back now and be complacent will only cement a dictatorial state.  The war is for the case for Human Rights in this country.  Human Rights MUST be immutable by any government and designed to protect those things we hold dear and have belief in.

Rather than just continually espousing this call for Rights my suggestion is that it must be in plain English, not legalese, so that it can be taught in the Primary schools so that everyone KNOWS what rights they have (and responsibilities). Something like the Universal Declaration of Human Rights 1948.  It is simple and plain. It is unequivocal. There can be no mistake as to its meanings.

See: http://www.un.org/en/documents/udhr/index.shtml

What is also of interest here is that the Rann government has broken or denied  or legislated against most of the articles listed in the UDHR.  Surely this is an indicator of what is to come for other states and MUST be addressed as a matter of absolute priority.

Written by Paul Kuhn

Posted in the first instance on OzBiker forum:
http://www.ozbiker.org/vent_forum/index.php?topic=23119.0

Reference article posted above my comments on the forum:

________________________________________
LAST week, members of the ***** motorcycle club successfully challenged the constitutionality of South Australia's so called anti-bikie law.

Although hailed as a major victory for civil liberties, the reasons underlying the 2:1 decision by the Supreme Court of South Australia are more complex.

The significance of the case for similar laws in other states, and preventative legal measures generally, merits careful assessment.

In Totani v South Australia, Justices Bleby and Kelly ruled section 14(1) of the Serious and Organised Crime (Control) Act 2008 invalid.

Under section 14(1), the South Australian Magistrates Court must make a control order against a person if satisfied that he or she is a member of a declared organisation. The order would impose restrictions upon the individual's freedom to associate with other members.

The power to declare an organisation is placed in the hands of the state attorney-general who receives secret police evidence for the purpose.

This material is not to be disclosed if classified by the police commissioner as criminal intelligence.

The attorney-general must be satisfied that members of the organisation associate for a criminal purpose and that the entity represents a risk to public safety and order.

In making this finding, he or she is not subject to the rules of evidence and is not required to give reasons. The validity of a declaration is expressly protected from any challenge or review.

The declaration of an organisation is clearly a precondition to the making of a control order by the Magistrates Court against any of its members.

But Justice Bleby found that the provisions worked together to ensure that the most significant and essential findings of fact are made not by a judicial officer, but by a minister of the crown.

Although it appears that the court decides whether to deprive a person of their freedom of association on pain of imprisonment for up to five years, Justice Bleby said that the power to issue a control order was “unacceptably grafted” on to the findings of the attorney-general.

He or she determines the “most factually complex matters” in a closed and unreviewable process, leaving the court to decide merely if the individual in question is a member of the organisation. If so, then the court has no discretion but must make the control order.

The effect of this was to impair the court's institutional integrity since the integration of executive power into the judicial process effectively controlled its outcome.

Applying the rule from the 1996 High Court case of Kable v DPP, the South Australian Supreme Court struck down the law because it required the court of a state to fulfil a role incompatible with the nature of judicial power.

There is no strict separation of judicial power at the state level, but state courts may be invested with federal jurisdiction under the Commonwealth Constitution.

Kable's case says this means there are limits on the extent to which state courts can be conferred with non-judicial functions.

There will certainly be some judicial or legislative follow-up to the Supreme Court's decision in Totani.

Even if the result is confirmed on appeal to the High Court, the South Australian government is unlikely to back away from a law-and-order issue it has pushed so strongly.

Nothing in the Totani judgments suggests that the processes in the Act cannot be remedied so as to comply with constitutional imperatives. Those who think the case is a win for human rights should brace themselves for the next round.

More generally, the case is unlikely to turn Australian governments off preventative measures such as control orders.

The NSW attorney-general's confidence that his own legislation is unaffected by the Totani decision is probably justified. Notably, under that law the power to declare organisations is given to members of the judiciary.

This is not to say that the NSW Act and those being planned in other states are not worrying in their disregard for freedom of association and the liberty of persons not prosecuted for criminal conduct.

Ironically, police appear unenthusiastic about actually using these laws. Only one declaration was made in SA and to date none has been sought in NSW, despite the legislation being enacted urgently.

The Commonwealth's terrorism control orders were only ever applied to two people, with none currently in force.

Limited use of these laws does not make them harmless. Quite apart from their latent potential for misuse, they are highly corrosive of core legal values.

It may not end here either. In Britain, the prototype of preventative measures was the anti-social behaviour order, introduced more than 10 years ago.

Targeting hooliganism, graffiti artists and noisy neighbours, the chance to get tough on these issues may yet prove just too tempting for an Australian government.

Andrew Lynch is director of the Gilbert + Tobin Centre of Public Law, UNSW.

Quoted From -
http://www.theaustralian.news.com.au/business/story/0,28124,26151449-17044,00.html

The Universal Declaration of Human Rights.

http://www.un.org/en/documents/udhr/index.shtml

PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
 
Article 1.
• All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2.
• Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3.
• Everyone has the right to life, liberty and security of person.
Article 4.
• No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5.
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6.
•  Everyone has the right to recognition everywhere as a person before the law.
Article 7.
•  All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8.
•  Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9.
•  No one shall be subjected to arbitrary arrest, detention or exile.
Article 10.
•  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11.
•  (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
•  (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12.
•  No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13.
•  (1) Everyone has the right to freedom of movement and residence within the borders of each state.
•  (2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14.
•  (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
•  (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15.
•  (1) Everyone has the right to a nationality.
•  (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16.
•  (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
•  (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
•  (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17.
•  (1) Everyone has the right to own property alone as well as in association with others.
•  (2) No one shall be arbitrarily deprived of his property.
Article 18.
•  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19.
•  Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20.
•  (1) Everyone has the right to freedom of peaceful assembly and association.
•  (2) No one may be compelled to belong to an association.
Article 21.
•  (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
•  (2) Everyone has the right of equal access to public service in his country.
•  (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22.
•  Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23.
•  (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
•  (2) Everyone, without any discrimination, has the right to equal pay for equal work.
•  (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
•  (4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24.
•  Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25.
•  (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
•  (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26.
•  (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
•  (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
•  (3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
•  (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
•  (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28.
•  Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29.
•  (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
•  (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
•  (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30.
•  Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.