In the last few years there has been a lot of buzz around a so-called ‘right to be forgotten.’ Especially in Europe, this catchphrase is heavily debated in the media, in court and by regulators. Since a clear definition has not emerged (yet), the following article will try to raise the veil on this vague concept. The first part will weigh the right's pros and cons against each other. It will appear that the ‘right to be forgotten’ clearly has merit, but needs better definition to avoid any negative consequences. As such, the right is nothing more than a way to give (back) individuals control over their personal data and make the consent regime more effective. The second part will then evaluate the potential implementation of the right. Measures are required at the normative, economical, technical, as well as legislative level. The article concludes by proposing a ‘right to be forgotten’ that is limited to data-processing situations where the individual has given his or her consent. Combined with a public-interest exception, this should (partially) restore the power balance and allow individuals a more effective control over their personal data.Ausloos concludes that there is merit in an ‘right to be forgotten’, arguing that the right has a well-defined scope and could be established, including an exception-clause to avoid any negative consequences a broader interpretation would entail.
The ‘right to be forgotten’, therefore, should definitely not be ‘forgotten’. Instead, a potential adoption of the right should be thought through thoroughly and not be the result of a panic reaction to the events of the day. The main objective should always be to give individuals a balanced control over their personal data. An adequate implementation of the ‘right to be forgotten’ will definitely contribute to a shift in the power balance, to the benefit of each and every individual in the information society.Another perspective on obscurity and dignity is provided by the Queensland Civil and Administrative Tribunal in Emanuel and Anor v State of Queensland [2011] QCAT 731, duly footnoted in my doctoral dissertation.
Sunrise Eliza Kayah Celeste Emanuel and Mimi Yahjah Emanuel (formerly known as Wilhelmina Maria Anthonia) sought to refuse being photographed for a driver's licence, arguing that the requirement for inclusion of her image as photo ID on the driver licence card was contrary to her religion and hence impermissibly discriminatory under the Anti-Discrimination Act 1991 (Qld).
The Tribunal states
Each of these ladies complains that they have been unlawfully discriminated against because the State of Queensland has refused to issue them with driver licences because they declined to allow themselves to be photographed so that the relevant photographs could be imprinted on the relevant licences.
Each of the Complainants says that she cannot agree to having her photograph taken for this purpose because her religious beliefs prevent it, the taking of a photograph being in direct violation of God‟s Second Commandment.
The complaint is that the refusal of Queensland Transport to issue a licence, without a photograph on it, amounts to unlawful discrimination, in accordance with the Queensland Anti-Discrimination Act 1991, on the ground of religious belief or activity. ...
Each of the Complainants lodged complaints with the Anti-Discrimination Commission of Queensland in 2009. Matters did not resolve there, and duly were referred to this Tribunal. The referrals stated that the ground of complaint, in each case, was “religious belief or activity” in the area of administration of State laws and programs....
The matters arose because the Complainants changed their names (properly in accordance with law), and then sought to have their existing current and valid driver licences reissued, showing their new names. Queensland Transport refused to do this, when the ladies said that they could not have their photographs taken because of their religious beliefs. ...
The relief sought by the Complainants, if they make good their complaints, is, it seems, that they should be issued with a photo-less licence. They make suggestions as to the contents of such licences so as to ensure that, as drivers, they are properly and validly identified.The Decision notes
The Complainants relied principally upon two volumes of very detailed material. That material begins with a fourteen page letter signed by the Complainants. It is difficult to summarise, but its essence seems to be that the reasons given by the authorities for refusing to change Mrs Mimi Emanuel‟s licence details and refusing to issue a new licence to her daughter, Sunrise, are unreasonable, in all of the circumstances, including the circumstance that the Complainants‟ refusal to have their photographs taken involves their following “God’s Commandments as they are written in the Bible”.
In particular, the Complainants express their view of the Second Commandment which “tells us not to make an image or a likeness”. In their materials, there are then references to Sir William Blackstone‟s writing to the effect that human laws are only valid when in line with God‟s laws; to United States legislation; to the Annotated Constitution of the Australian Commonwealth; and to a large number of other matters.
It is argued that the cost and risk of issuing the Emanuels with photo-less driver licences is minimal, and an appeal is made “to have the law of common sense applied and for Queensland Transport to make good to Sunrise and negotiate a workable arrangement with the Emanuels”.The Tribunal states that it is worth reproducing some of the arguments by the Emanuels
“1. Does one need a photograph to be able to drive a car? This is not a trick question; it is an honest straightforward question.
2. Of course one does not need a photograph to drive a car. Any child will tell us that.
3. God gave us all our right to travel our roads freely as is reflected not only in our Constitution but also in many other covenants and treaties, as is our right to freedom of thought, conscience and religion.
4. Queensland Transport, a government department is disputing our right to religious freedom and our right to travel our roads freely.
5. They are not only disputing this right, they have actively taken these freedoms away without even allowing an appeal.
6. Queensland Transport argues that soon there will be a law ... that regardless of the outcome of this tribunal ...
7. If what Queensland Transport states were to be true this would obviously make a mockery of this whole conciliation process, both the anti-discrimination law as well as the tribunal. To make a person with a genuine complaint wait for nearly 20 months before they get a tribunal hearing meanwhile pretty much disputing the facts, reiterating policies and procedures and not in any way whatsoever attempting to come to some kind of agreement, even if this were to be interim. None of this shows us goodwill, or the right spirit abiding by anti-discrimination law.
8. To then state that regardless of what the ruling of the tribunal will be, this law ... well .. So now all of a sudden the Anti-Discrimination Act legislation is overruled by other state regulation? How does that work in a fair society?
9. None of this makes sense to us. We understand that the anti-discrimination laws and Tribunal are in place exactly to determine if what has taken place was lawful, fair and reasonable and to prevent discrimination. Not to be outdone by some clever manoeuvring of state legislators.
10. The Australian Constitution states under 116 that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ... ...
11. And under 109, when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
12. The Anti-Discrimination Act 1991 prohibits indirect discrimination under chapter two, Part 3 section 9(b) based upon religious belief or religious activity under chapter Two, Part 2, section 7(i).A Queensland government representative testified
in his experience it has become increasingly evident and accepted by the Department that the Queensland driver licence is more than an authority to drive. Not only does it enable police to identify quickly a driver in relation to a relevant matter, but it has become a primary form of identification, used by holders when proof of identity is required, for example when opening a bank account, taking out a loan, proving age to purchase liquor, et cetera. [
In turn, the view of the Department is that, in following the Administrative Guidelines, the Department has, and accepts that it has, a duty to ensure that a driver licence is only issued where the licence can reliably identify its holder to any law enforcement agency, government agency, commercial entity, or community group. He expresses the view that reliable identification cannot occur in the absence of a photograph, and that a driver licence does not compare to other identity documents such as a birth certificate or a passport, because it is more functional and durable, can easily be carried on a person, and is one of the only photographic identity documents to include a person‟s address.
He says that in his position of responsibility, he is of the view that issuing a driver licence without a photograph would – a) be inconsistent with nationally agreed administrative guidelines; b) significantly compromise the primary uses of the licence; and c) set a precedent that would be readily open to abuse by members of the public who may seek to fraudulently reproduce or alter a non- photographic licence.Another representative is reported in the Tribunal's decision as arguing
he ability to readily identify a person from a photograph contained on a driver licence is the primary advantage of a driver licence containing a photograph. He then identifies numerous risks which would be associated, potentially, with the issue of photo-less driver licences, including possibilities of theft, misuse, and the like.
He says that he is greatly concerned, as an investigator of fraud and identity theft, that permitting two people to have a driver licence that is valid without a photograph would result in significant risk to the process of obtaining a driver licence and the security features of a driver licence. He expresses the view that the security of the driver licence system would be put at risk, and refers to the possibility of offenders falsely claiming to have the same beliefs as the Complainants, to be issued a driver licence without a photograph.
He makes reference to proposals for a new digital driver licence in Queensland and the use of biometric technology, and expresses concern that if the Complainants were permitted to have a digital driver licence without a photograph, the new project might be undermined.The Tribunal in concluding that the anti-discrimination statute had not been breached noted
Reference is made to numerous matters, which are in turn referenced to the evidence –
a) A photograph driver licence is a key identity document, often used as a primary means of authenticating identity. The photograph, signature and address are critical in this regard;
b) The State has a duty of care to ensure that driver licences are issued in a manner ensuring that the correct identity of a person is on the licence, and this, in turn, requires imposing objective requirements of the sort referred to in the evidence;
c) It is not contrary to the scheme and objects of the Anti-Discrimination Act 1991 to permit a decision making authority to identify a threat to the safety or, in this instance, welfare of other persons (in the case of the community in general, which is adversely affected by identity fraud for whom the welfare of the decision maker is responsible);
d) Other identification documents are inferior to the driver licence for a variety of reasons outlined in the evidence;
e) A photograph on a driver licence plays a critical role to expedite and facilitate identification at accident scenes, or when vehicles are stopped by police officers;
f) A precedent would be created that would undermine the integrity and purpose of a driver licence if an exemption is made, because other applicants would or could seek to obtain non-photographic driver licences, for instance, because of claimed religious beliefs. Some such claims may be genuine, but an exemption would not be able to prevent a person with illegal or fraudulent aims from claiming the relevant belief;
g) There is an increased and significant risk for identity fraud to occur if a driver licence is issued without a photograph, as set out in the evidence of Detective SergeantGorrie, and in the Victorian Ombudsman's document referred to above. To issue a driver licence without a photograph also would be inconsistent with the State‟s obligations under the Inter-Governmental Agreement and the Regulation;
h) The inclusion of a photograph on a driver licence ensures compliance with the National Administrative Guideline, ensuring that a driver licence can be mutually recognised throughout Australia;
i) Relevant Queensland State legislation requires the chief executive of the Department of Transport and Main Roads and/or the chief executive‟s delegate to refuse to consider an application for the grant, renewal or replacement of a driver licence if a person refuses to allow the taking and keeping of a digital photo and signature of the person;
j) The last point relates to the intention to introduce biometric facial recognition software, aimed at uncovering and preventing instances of duplicate identities, and ensuring renewals of driver licences are genuine and not a consequence of identity theft;
k) Any exemptions from the mandatory photograph requirement will (it is said) materially increase the vulnerability of the licensing system and the risk of identity-related fraud;
l) If a small number of complainants were to be accommodated by some alternative non-photographic licence, the State would need to change its processes or technology;
m) On the evidence, there are no available or practical alternatives to the requirement for a photograph which achieves the same desired end or objective and, in particular, fingerprint technology is not a practical, cost-effective or workable alternative.The decision thus differs from claims by people seeking a photo ID in which the head is covered (eg by a veil, turban or even a Pastafarian colander) but the face is clearly visible.
In Kosteska v Phillips; Kosteska v Commissioner of Police [2011] QCA 266 the Qld Supreme Court has considered three applications by Lille Kosteska for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). The applications are a matter of pseudolegalism, highlighted elsewhere in this blog, particularly in relation to the sovereign citizen mindset.
The judgment states
[2] The first, CA No 63 of 2011, is from an order of Judge Rafter SC on 31 March 2011 refusing the applicant's request to delist her appeal to the District Court from a magistrate's finding that she was guilty of unlawful possession of cannabis. The appeal was listed in the District Court for hearing on 15 April 2011. On 31 March 2011, the applicant argued that the appeal should be delisted because she wished to make an application in respect of it to the High Court of Australia. Judge Rafter referred to correspondence on the file from the Deputy Registrar of the High Court to the appellant dated 26 November 2010. The Deputy Registrar had noted that the documents that she had attempted to lodge did not comply with the rules and would not be accepted. The correspondence from the High Court Deputy Registrar suggested that her efforts in that court were futile. As the applicant had filed the appeal in the District Court, it was in the interests of justice that the appeal proceed to hearing on 15 April. For those reasons, Judge Rafter refused her application to delist the appeal.
[3] The appeal was subsequently heard and refused by Judge Shanahan on 15 April and that order is the subject of CA No 96 of 2011. It would therefore be pointless to grant leave to hear an appeal from Judge Rafter's order refusing to delist a matter which has been heard since and is now itself the subject of another application for leave to appeal to this Court. It follows that the application for leave to appeal in CA No 63 of 2011 should be refused.
[4] CA No 64 of 2011 is from another order of Judge Rafter made on 31 March 2011. The applicant was charged with an offence of disqualified driving as a repeat unlicensed driver. On 23 March 2011 she appeared before Magistrate Callaghan in the Brisbane Magistrates Court. The applicant said she wanted the case heard that day. The magistrate explained that this was not possible as the prosecution was also entitled to procedural fairness and had only been informed that day that the applicant was pleading not guilty. The magistrate set the case down for hearing on 12 May 2011 to allow both sides to prepare their cases.
[5] The applicant appealed to the District Court from this unremarkable order listing the matter for trial. Judge Rafter noted the interlocutory nature of the order. This meant that the appeal to the District Court was premature; so much was clear from Coulter v Ryan. For those reasons, his Honour dismissed the appeal. [
6] Judge Rafter was plainly right. The applicant had no right of appeal under s 222 Justices Act 1886 (Qld) from Magistrate Callaghan's interlocutory order: see Coulter v Ryan. The application for leave to appeal from Judge Rafter's order in CA No 64 of 2011 should be refused.
[7] CA No 96 of 2011 concerns the appeal to the District Court from Magistrate White's finding at the Beaudesert Magistrates Court on 31 May 2010 that the applicant was guilty of unlawful possession of cannabis. The sentence proceedings were adjourned and had not been dealt with at the time of this application. The appeal was heard on 15 April 2011 by Judge Shanahan who gave ex tempore reasons dismissing it. The applicant has applied for leave to appeal from that order. Her arguments before Judge Shanahan seem to have been the same arguments she has raised in this court.
[8] First, she challenged the jurisdiction of the District Court to hear her appeal. As she was the appellant, this challenge seems irrational. In any case, Judge Shanahan rightly noted that he had jurisdiction to hear the appeal under s 222 Justices Act.
[9] She next contended the matter should not have been dealt with summarily in the Magistrates Court. Judge Shanahan noted that the Drugs Misuse Act 1986 (Qld) s 118 provided for the prosecution to elect to deal with a charge of this kind summarily; that was what occurred here. His Honour also noted the applicant's argument that the Drugs Misuse Act was unlawful, as were all statutes since the Imperial Statute of Westminster and the Australia Act 1986 (Cth) abolished the English Parliament's capacity to legislate for Australia. The applicant also raised a complaint that the only form of legal tender was gold or silver coin. These arguments, his Honour observed, had previously been dismissed by superior courts and were without merit.
[10] Judge Shanahan noted the applicant's claim that cannabis had beneficial effects and that the drug was not dangerous as she used it medicinally. His Honour observed that this was no basis for overturning a finding of guilt.
[11] Judge Shanahan reviewed the evidence before the magistrate. A valid search warrant was executed by police on the applicant's residence. Police found a small amount of green leafy material there. The material was later examined and a certificate was tendered stating that it was cannabis. Indeed, the applicant gave evidence that the cannabis was hers and that she used it for medicinal purposes. She also agreed she was the occupier of the premises. There was abundant evidence on which Magistrate White could properly convict the applicant of the charge.
[12] Although the applicant claimed that she was confused at times during the trial, his Honour observed that she made the points she wished to make orally; gave evidence; and made submissions about her legal arguments. He considered it unsurprising that she had difficulty articulating her legal arguments because they were without merit and tortuous. As the evidence against her was overwhelming and confirmed in her own evidence, and as there was no unfairness in the way the trial was conducted, his Honour ordered that the appeal should be dismissed.
[13] The applicant made oral submissions at the Court of Appeal hearing in a courteous manner. She read from a document which she later handed to the Court. She challenged the authority of this Court to hear her applications, claiming that it was not a lawfully established court and that, for constitutional reasons, her matters should be uplifted to the High Court of Australia. She stated that she had informed the Queensland Attorney-General of her arguments but that she had not informed other Attorneys-General of her application as required under s 78B Judiciary Act 1903 (Cth).
[14] Although ordinarily s 78B(1) prevents a Court proceeding to hear a matter involving the interpretation of a constitutional question, notices under s 78B are unnecessary where the contention raised is plainly unarguable. As Toohey J explained in Re Finlayson: Ex parte Finlayson: "In terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution". (footnotes omitted) More recently, Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation cited Toohey J's observations with approval.
[15] As I shall shortly explain, the applicant's contentions as to her constitutional argument are so clearly misconceived that it cannot be said they involve a matter arising under the Constitution. This Court can determine her applications even though she has not served s 78B notices on the Attorneys-General.
[16] When I questioned the applicant about one of her submissions, she stated she was "just following directions given to me". She later said that "Alan" had helped her with her material. Mr Alan Skyring was in the back of the Court. She explained that she suffered from anxiety and was confused about dates and asked the Court to consult "Alan" if the Court wanted information which she could not supply. Mr Skyring at this point moved forward to address the Court but was quickly told that his assistance was unnecessary. He resumed his seat in the rear of the Court. It is clear from the transcript of these matters in the Magistrates and District Court and from the applicant's submissions in this Court that Mr Skyring has been present at some (if not all) of these hearings and has aided and encouraged the applicant in pursuing her appeals in which arguments were raised that he had previously raised unsuccessfully in this Court where Mr Skyring has been a frequent litigator: see for example Skyring v Commonwealth Commissioner of Taxation; Skyring v Australia & New Zealand Banking Group; Re Skyring; and Skyring v Lohe. Unfortunately it seems likely that his "assistance" to the applicant has added to her anxious and confused state and her financial difficulties about which she addressed this Court.
[17] Mr Skyring was declared a vexatious litigant under the Vexatious Litigants Act 1981 (Qld) (repealed) on 5 April 1995. Under s 16 Vexatious Proceedings Act 2005 (Qld), orders under the repealed Act are taken to be orders under the current Act. It is of concern to the administration of justice that a vexatious litigant like Mr Skyring may be encouraging vulnerable people like the applicant to undertake unwinnable litigation and to pursue appeals which impose unnecessary costs on the community. It amounts to an abuse of process. It may be appropriate in like instances in the future, for the Attorney-General to consider whether an application should be made to permanently stay proceedings if it is thought that Mr Skyring may be acting in concert with another person in the institution of proceedings in Queensland Courts: see s 10 Vexatious Proceedings Act and Cameron v Peter D Beattie (in his capacity as Premier) & Ors; but cf Clampett v Kerslake (Electoral Commissioner of Queensland).
[18] As Judge Shanahan identified, the applicant's contentions have all been aired in this and other courts before and have rightly been dismissed: see for example Sharples v Arnison; Skyring v Australia & New Zealand Banking Group Ltd; Re Skyring's Application (No 2); and Re Cusack.
[14] In Re Skyring, Dawson J said: "It would, in my view, be an abuse of process to allow the applicant to relitigate a matter which has already been decided adversely to him".
[16] See also Professor Anne Twomey's discussion of these arguments in "The Australia Acts 1986 Australia's Statutes of Independence".
[17] Constitutional arguments specifically challenging the constitutionality of the Drugs Misuse Act on other bases have also failed: see, for example, R v Gorton and Till v Johns.
[19] The applicant's arguments in this Court are as unmeritorious as those she mounted before Judge Shanahan. She has not demonstrated any error in Judge Shanahan's approach to her appeal. She should not be given leave to appeal from it. It follows that application CA No 96 of 2011 should also be refused.
