Common Law/International law Human Rights Police Officers have no power whatever to arrest or detain a citizen for the purpose of questioning him or of facilitating their investigations. It matters not at all whether the questioning or the investigation is for the purpose of enabling them to ascertain whether he is the person guilty of a crime known to have been committed or is for the purpose of enabling them to discover whether a crime has or has not been committed. If the Police do so act in purported exercise of such a power, their conduct is not only destructive of Civil Liberties but it is unlawful. Regina v Banner (1970) VR 240 at p 249 the Full Bench of the Northern Territory Supreme Court 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. Justice Stephen Kaye Melbourne Supreme Court ruling 25 November 2011 Coercive questioning by Police in an effort to request name and address of a person who is stopped, constitutes a breach of the Common Law and Charter of Human Rights (CHRR) Act and the International Covenant on Civil and Political Rights (ICCPR) to freedom of movement and privacy. Senior Magistrate Duncan Reynolds Melbourne July 2013 Justice Kevin Bell - December 2014 Supreme Court THE RIGHT TO REFUSE TO INCRIMINATE ONESELF The Australian Government Law Reform Commission states the following: 15.89 The Common Law privilege against self- incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. (123) Although broadly referred to as the privilege against self- incrimination, the concept encompasses three distinct privileges: a privilege against self- incrimination in criminal matters; a privilege against self- exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self- exposure to the forfeiture of an existing right (which is less commonly invoked).
As proven by the precedents set by various Judges, Common Law supersedes Statutory Law. Therefore, whether there are Statutory Laws compelling a person to submit to providing anything that may tend to incriminate him, the fact remains that a person has the legal Right to not provide any material, whether verbal or tangible, if the production of that material would tend to incriminate that person. It can be argued that any material thing could be considered to be a document. In fact most dictionaries will define a document as being a piece of information. Therefore using that definition, a document can be any or all of the following: verbal statements, physical documents, data such as computer files, breathe alcohol samples, blood alcohol samples, DNA samples and anything else that constitutes information. No person should ever succumb to any demand to produce anything that may tend to incriminate him, no matter what Police or other officials say or threaten. Every citizen has the Common Law Right to refuse to incriminate himself in any way. Obviously any attempt to coerce or forcibly take any material from a person against their will that may tend to incriminate them should not only make that material completely inadmissible as evidence in any prosecution, but will possibly render the person who has coercively or forcibly obtained that material to prosecution for violating a person s Common Law Rights. Australian High Court Cases- Human Rights & International law: Coco v Queen 1994 179 CLR 427 Court restated that: The Courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. A well- established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. Electrolux Home Products Pty Ltd v Australian Workers Union 2004 HCA 40.221 CLR 309 Chief Justice stated: The presumption in not merely a common- sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. This presumption includes fundamental rights recognised by the common law. A similar presumption applies regarding consistency with International Law Obligations, including Human Rights Treaty Obligations, which came into force once Australia signed and ratified relevant documents.
In the HCA case in Teoh 1995 183 CLR 273 Chief Justice Mason and Deane stated: Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia s Obligations under a treaty or International Conventions to which Australia is a party of, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia s obligations under International Law. Chief Justice James Spigelman was as active protector of Human Rights. It is noted he often mentioned rights is regards to interfering with vested property rights, alienation of property without compensation. He also noted in the case: Constantine v Imperial Hotels Ltd 1944 1 KB 693, while a presumption against racial discrimination has yet to be identified, racial discrimination has been found to breach Common Law Rights. He further states: This common law Bill of Rights overlaps with, but not identical to, the list of Human Rights specified in International Human Rights Instruments. Justice Spigelman notes that Common Law presumptions include presumptions that the Parliament does not intend to interfere with vested property rights, or to alienate property without compensation. The Universal Declaration of Human Rights (Article 17) states that: 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 The ICCPR thus provides wide ranging protection regarding property rights. There are also provisions regarding property rights in CERD (Article 5), the CRPD (Article 12.5), and CEDAW (which refers to discrimination in the Political, Economic, Social, Cultural, Civil or any other field, and refers specifically to equality in the administration of property in Article 15. It is also stated in Universal Declaration of Human Rights (UDHR), which in 1948 proclaimed in it Article 17 that: (e)veryone has the right to own property alone as well as in association with others and that (n)o one shall be arbitrarily deprived of his property. ESCR: The Human Right to property is essential for the protection of human life and dignity. International case: Ogoni Case declared that the right to property and the right to food were intimately interdependent, and the right to property is essential for the protection of human life and dignity of the right holder as it contributes to the realization of economic and social rights including the right to housing, to food and to social security. The obligation to protect the right to property requires States to refrain from arbitrarily interfering with the enjoyment of the right.
Australian recognised lectures on Human Rights:. The Common Law Bill of Rights Hon J Spigelman AC 2008 McPerson Lectures: Statutory Interpretation & Human Rights. The Common Law and the Protection of Human Rights, Chief Justice Robert French 4 Sept 2009, Sydney. Protecting Human Rights without a Bill of Rights, Chief Justice Robert French 26 Jan 2010. The Common Law Principle of Legality in the Age of Rights, D.Meagher, Melbourne Univerity Law Review 2011. Common Law v Human Rights- Which Better Protects Freedoms, J Southhalan, Australian Lawyers for Human Rights 2011. Judges & Human Rights, Hon Justice Maxwell, President of the Victorian Court of Appeal, May 2012. Rule of Law, Law Council of Australia March 2011 Further examples of limitations against fundamental rights:. Mabo v Queensland- legislation presumed not to have extinguished Native Title.. Minister for immigration and Citizenship v Haneef- association in Migration Act construed narrowly to limit effect on Common Law Rights.. Evans v NSW- regulation making power regarding World Youth Dat found not to authorise a regulation directed to conduct causing annoyance to participate in a World Youth day even.. Davis v Commonwealth- Provisions of the Australian Bicentennial Authority Act requiring permission from the Authority to make use of words such as bicentenary, bicentennial, 200 years, Australia, Melbourne, founding, First Settlement, in conjunction with the figure 1788. 1988 or 88- found to exceed Constitutional power by reference to Common Law concern for freedom of expression.
In Australian Constitutional Law, the early decisions of the court were influenced by United States Constitutional Law. In the case of D Emden v Pedder (1904), which involved the application of Tasmanian stamp duty to a federal official s salary, the court adopted the doctrine of implied immunity of instrumentalities which has been established in the United States Supreme Court case McCulloch v Maryland (1803). It was/is common for Justices of Australian Courts to make decisions influenced by United States, UK, and other country court decisions. In regards to travelling without a licence the USA and Canada are pregnant with High Court cases in regards to Human Rights v Licences. Cases: High Court British Columbia, Justice Tolman Robertson v Dept of Public works, 180 Walsh 133, 147. The words of Justice Tolman ring most prophetically in the ears of citizens throughout Canada and the USA as the use of the public roads has been monopolised by the very entity which has been empowered to stand guard over our freedoms, ie, that of government. Shuttlesworth v Birmingham 394, 147 1969 Traffic infractions are not a crime. People v Battle Persons faced with an unconstitutional licencing law which purports to require a licence as a prerequisite to exercise of right.may ignore the law and engage with impunity in exercise of such right. The word operator shall not include any person who solely transports his own property and who transports no persons or property for hire or compensation. Highways are for the use of the travelling public, and all have the right to use them in a reasonable manner, the use thereof in an inalienable right of every citizen. Bouvier s Law Dictionary, 1914 Pg 2961 Right means a right protected by the law, by the Constitution, but the government does not create the idea of right or original rights; it acknowledges them. City of Chicago v Collins 51 NE 907, 910 Those who have the right to do something cannot be licenced for what they already have, right to do such licence would be meaningless. Payne v Massey 196 SW 2 nd 493, 145 Tex 273 A licence means leave to do a thing which the licenser could prevent. The object of a licence is to confer a right or power, which does not exist without it. Wingfield v Fielder 2 nd Ca. 3 rd 213 1972 The court makes it clear that a licence relates to qualifications to engage in profession, business, trade or calling; thus, when merely travelling without compensation or profit,
outside of business enterprise or adventure with the corporate State, no licence is required of the natural individual traveling for personal business, pleasure and transportation. The right to travel freely from State to State.is a right broadly assert able against private interference as well as government action. Like the right of association, it is a virtually unconditioned personal right, guaranteed by the Constitution to us all. Iron curtains have no place in a free world.undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute to personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Constitution. The validity of restriction on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts. A person detained for an investigatory stop can be questioned but is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest. Automobiles have the right to use the highways of the State on an equal footing with other vehicle, such as bicycles, horses or carriage etc Each citizen has the absolute right to choose for himself the mode of conveyance he wishes to use each and every day. England 1215 Magna Carts Article 42 Right to Travel It shall be lawful to any person, for the future, to go out of our Kingdom, and return safely and securely, by land and water. Travel by personal conveyance. Every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowman without his consent. Australian Human Rights Commission Level 3, 175 Pitt Street Sydney, 2000 N.S.W infoservice@humanrights.gov.au publications@humanrights.gov.au education@humanrights.gov.au Ph: 02 9284 9600 1300 656 419