As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's 'reasonable expectation of privacy' standard. The essay argues that the conceptual problem derives from the evolution of three stages of development in the public nature of personal information culminating in the ubiquitous transparency of citizens. This ubiquitous transparency destroys any “reasonable expectation of privacy.” The essay then argues that transparency without privacy protection challenges the democratic values of public safety and fair governance. To restore the balance and relocate privacy away from the no longer workable “reasonable expectation” standard, the essay argues for a new normative approach to privacy that would protect observable activity where such activity is not “governance related,” but rather “private regarding.” The essay concludes by showing that this distinction is consistent with the First Amendment and draws on established doctrines in tort law and First Amendment jurisprudence.
In Stearman v Taylor [2014] WASC 247 the Supreme Court has noted another instance of pseudo legal claims.
The Court states
[1] The appellant was charged with three offences. It was alleged that on 2 February 2013 he: (a) refused to stop a vehicle that he was driving when called upon to do so by a member of the police force, contrary to s 53(2A) of the Road Traffic Act 1974 (WA); (b) drove a vehicle whilst not being a person authorised by pt IVA of the Road Traffic Act and being a person whose authority to drive was suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act; (c) refused to supply his personal details when requested by a police officer to do so, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA).
[2] The trial of those charges was listed to be heard on 5 September 2013 by a magistrate sitting in the Magistrates Court at Northam. The appellant appeared in person on that day. He claimed that he was entitled to be tried before a jury and, in effect, applied for a date to be fixed for a trial by jury. The magistrate refused that application, stating that the appellant had been charged with simple offences under State law.
Stearman proposed three grounds of appeal:[3] There then followed a vigorous exchange between the appellant and the magistrate in which the appellant maintained that he was entitled to a trial by jury under s 80 of the Constitution and the magistrate endeavoured to explain the procedure for conducting a trial in the Magistrates Court. The exchange culminated in the appellant leaving the court, claiming that the magistrate was acting unlawfully.
(a) the Magistrate was wrong in law and fact when he refused me a trial by Jury under s 80 of the Commonwealth Constitution 1901 therefore committing a Tort against me;
(b) the Magistrate was wrong in law and fact when he refused me a trial by Jury under the provisions of Magna Carta, also committing a Tort against me;
(c) the Magistrate was wrong in law and fact when he entered a plea for me and dealt with the offences in summary jurisdiction against my will, therefore placing me into peonage and committing a Tort against me.
The Court states
[9] The appellant focused in his oral submissions in the appeal on what he contended was his right to a trial by jury under s 80 of the Constitution. Indeed, the appellant stated at a directions hearing in the appeal that he had only attended to enable the court to fix the date for his trial by jury. That hearing had been convened to raise with the parties whether it was arguable that the magistrate had erred by: (a) proceeding to record convictions under s 55 CPA in circumstances where the appellant had initially attended the court and appeared on 5 September 2013; and/or (b) failing to give the appellant a proper opportunity to be heard on his application under s 71 CPA.
[10] Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the court is required for each proposed ground of an appeal. The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court of Appeal stated: The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].
[11] Leave for the appellant to appeal on each of his proposed grounds of appeal should be refused applying that test. None of the proposed grounds of appeal have a reasonable prospect of succeeding for the reasons that follow. It is not necessary to determine whether the appellant requires leave to commence his appeal out of time.
Proposed ground of appeal 1 - Section 80 of the Constitution
[12] Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. The offences with which the appellant was charged were neither indictable nor were they offences against any law of the Commonwealth; they were offences created by State legislation. As Hall J observed in dismissing an identical proposed ground of appeal in Glew v White [2012] WASC 100: The offences to which s 80 relates are those created by laws made by the Federal parliament pursuant to its legislative powers which have derived from the Constitution: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 244 (Barwick CJ). The offences in this case were not Commonwealth offences but State offences. Section 80 has no application to State offences: Birch v The Queen (1994) 12 WAR 292; Williamson v Hodgson [2010] WASC 95 [12].
[13] The appellant did not have any entitlement to a trial by jury pursuant to s 80 of the Constitution and the magistrate did not err as alleged by the appellant (and see Glew v White [2012] WASCA 138).
Proposed ground of appeal 2 - Magna Carta
[14] Commissioner Sleight dealt with a submission that a magistrate had erred in refusing an application for trial by jury under Magna Carta in Jackson v Western Australia Police [2014] WASC 72. As his Honour observed (at [19 21]):
The Magna Carta comprised of 37 statutes. For the purposes of this matter the relevant provision is chapter ... 29. It provides as follows: 'No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.'
The statutes of the Parliament of the United Kingdom of general application in force on 1 June 1829 were inherited into the law of Western Australia if they were suitable for local conditions: Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345, 356 (Griffith CJ); Rogers v Squire (1978) 23 ALR 111, 116. On this basis it appears the Magna Carta became a part of the law of Western Australia but it was not a statute that had paramount force. This means that statutes of Western Australia operate to repeal provisions of the Magna Carta either expressly or impliedly to the extent that the statutes are inconsistent with or repugnant to the provisions of the Magna Carta: Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649, 653; Vincent v Ah Yeng [1906] WALawRp 33; (1906) 8 WALR 145; Shaw v The State of Western Australia Attorney General Mr Jim McGinty [2004] WASC 144.
The Criminal Code sets out a code of offences and how they are to be dealt with, either by indictment or summarily. That code clearly covers the field and either expressly or impliedly repeals any provision of the Magna Carta which may be interpreted as giving a right of trial by jury. Using the language of Griffith CJ in Chia Gee v Martin the contention that a law is invalid because it is not in conformity with the Magna Carta is not one for 'serious refutation'.
[15] The observation of McPherson JA in Essenberg v R [2002] QCA 4 is to the same effect - although it also addresses in passing the misconception that was embodied in the appellant's proposed ground of appeal:
I suppose it will help no one to be told that as a matter of history Magna Carta did not guarantee trial by jury because, at the time Magna Carta was introduced, there was no such thing as a jury. But that is history, and is really, in a sense, beside the point. The simple fact is that it is enough to say here that the legislatures of the Australian States ... have complete power to repeal Magna Carta or to amend it, either expressly or by passing legislation ... that is or may be inconsistent with it.
