The interface between data protection and freedom of expression is increasingly crucial and the GDPR solidifies bipartite or even tripartite conceptualisation of this relationship. Whilst the GDPR’s personal exemption can play some in governing individual expression, it must be construed narrowly so as to only exclude innocuous publication that is not liable to infringe other’s fundamental rights. The special expression derogation remains central and encompasses not just journalism but also other forms of special expression (academic, artistic, literary) which, when published, are objectively orientated towards a collective public. Whilst Member States retain considerable discretion, a strict balancing between fundamental rights must be ensured. Freedom of expression is also distinctly furthered by inter alia self-expression on social networking sites and the facilitation of a range of expressive purposes by search engines. As shown in GC and Others v CNIL, the reconciliation of rights here must retain a direct role for data protection’s core substance including its legal grounds and principles.
Yet another instance of pseudo legalism in Tasmania, with the Court in Police v Gale [2020] TASMC 11 taking a dim view of Gale's claims. It states
Despite a number of the complaints involving serious offences and the majority having a protracted history before the court Mr Gale is yet to enter a plea to any of the charges. He has instead raised a variety of preliminary arguments which challenge, inter alia, the legal basis of the matters of complaint, the authority of Tasmania Police to bring such charges and the jurisdiction of the Court. The defendant was provided with the opportunity to substantiate his arguments. In determining the points raised I have had regard to the voluminous materials relied upon by Mr Gale and presented, somewhat erroneously, as an “affidavit” dated 17 October 2019 and an “addendum” dated 18 November 2019.
The Prosecutor chose not to file any responding materials but rather relied upon Nibbs v Devonport City Council [2015] TASSC 34. I have considered all of the material supplied by the defendant, together with his oral submissions. I will attempt to identify and deal with each point in turn.
Onwards!
I have done my best to decipher the almost unintelligible mixture of archaic jargon and nonsensical sentences set out in the “Certificate” provided by the defendant. I have also reviewed, as best I am able, the mixture of historical and current legislation relied upon. I am mindful of a Judicial Officer’s duty to provide adequate reasons for a decision, not only so that each party can understand the determination and its impact upon their respective interests, but also to allow for review by a superior court. However, in the present situation I am at a loss. To provide such reasons would mean that I could make some sense of the documents and arguments presented. I cannot. As such, all I can do is dismiss the ground of argument set out at paragraph 8(i) and Exhibit 01 of the defendant’s “affidavit”.
The Court went on to adopt the findings by Magistrate A R McKee in Police v Nibbs [2018] TASMC regarding the validity of Commonweraklth and state law. In Gale it states In reliance upon the case of Hale v Henkel, a judgement of the United States Supreme Court from 1906, Mr Gale submits there is no “jurisdiction” between himself and what he describes as the “Corporate Fiction trading as Tasmania Police”. Mr Gale supplied me with a copy of the case law relied upon. Leaving to one side the fact that it is not a precedent binding upon any Australian Court, to utilise its findings in the manner contended by the defendant requires a degree of intellectual contortionism which is untenable. The case involves a discussion of the application of the United States Constitution’s 5th Amendment to individuals as opposed to corporate entities. How it might be relied upon to establish a jurisdictional challenge based on a lack of privity of contract between a citizen of Australia and a state police service is unclear. Mr Gale’s oral submissions did not serve to elucidate his point.
In any event, I note that as at 1 January 2004 the Police Service Act 2003 superseded the Police Regulation Act 1898. The Police Service Act 2003 created the Police Service in Tasmania as it is today. Tasmania Police is a statutory body and not a corporation as contended for by the defendant. Like many Government entities, the Tasmania Police Service has an Australian Business Number so that it might comply with its taxation and superannuation obligations. Such registrations do not render those bodies “corporate fictions” as submitted by the defendant. The ground set out at paragraph 8(vi) is without merit. ...
Mr Gale contends as follows: “I challenge the jurisdiction. The trading entity Tasmania Police, trading under Department of Police Fire and Emergency Management (Tas), ABN 19173586474 does not have jurisdiction over myself, the sentient man, without their consent through lawful contract”. It seems the defendant has confused the powers of police and the jurisdiction of this Court. I have already disposed of the defendant’s arguments concerning the authority of police to perform their duties and the non-application of the law of contract. As for the jurisdiction of this Court, I again refer to and respectfully adopt the comments and findings of Magistrate McKee in Police v Nibbs (supra). I am satisfied no genuine jurisdictional issue is raised by this ground.
(x) Self-Incrimination
Mr Gale’s argument is summarised in the following passage: “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”.
The defendant appears to confuse the authority of police to lawfully undertake their duties, and the admissibility of certain evidence. The Evidence Act 2001 provides substantial protections in relation to the admissibility of evidence, particularly in criminal proceedings. It provides the Court with a broad discretion to exclude evidence that is highly prejudicial and not sufficiently probative, or for public policy reasons. Additionally, sections 128 and 128A of the Evidence Act 2001 specifically preserve the privilege against self-incrimination in appropriate circumstances.
The arguments advanced by Mr Gale in this point are misconceived.
(xi) Private Administrative Process and Estoppel
As best I am able to understand the defendant’s contentions, Mr Gale submits: (a) He engaged certain members of Tasmania Police in a private administrative process; (b) That he served on said police officers documents and demands for information; and (c) That upon none of the police officers responding to the documents or demands for information he was entitled to proceed “in default” and consider all of the proceedings brought against him to be “settled in full”, “made in error”, “forgiven” or “not legitimate in the first place and ...therefore void or fully discharged”.
Much of the documentation provided to the Court in support of the above argument is unintelligible. I observe that none of the defendant’s demands for information/documentation complied with the Right to Information Act 2009. Further, the defendant seems to have demanded that each of the charges brought against him be proved by police to his satisfaction and in accordance with his views concerning the law.
Leaving to one side the fundamental difficulties associated with the defendant’s understanding of the law, he is not nor could he be involved in an “administrative” legal process. Administrative law regulates government decision making concerning individual matters. In each of the proceedings before the Court there is no administrative decision open to review. It is simply alleged that on various occasions Mr Gale has breached one or more of the laws of this State. These are not matters which can be concluded via default in the sense of a civil action. In the materials supplied in support of his submissions Mr Gale included a copy of the Bills of Exchange Act 1909 (C’wlth). While not specifically referred to in argument there is an earlier mention of the legislation with reference to “the private administrative process” at paragraph 8 of Mr Gale’s “affidavit”. There is no application of the Bills of Exchange Act 1909 to the unilateral communications apparently engaged in by the defendant and directed at certain police officers. The Bills of Exchange Act 1909 predominantly regulates the issue and use of promissory notes and can have no impact upon dealings between Tasmania Police and members of the public suspected of having committed an offence.
(xii) Right to Subrogation
This ground is based upon Mr Gale’s statement that he is the “beneficiary and general executor for the estate of his person”. If the defendant’s arguments were correct then he could transfer all of the rights, interests and liabilities in his person to another. It seems that, at least to the extent it furthers his ends, this is exactly what Mr Gale contends. By “subrogation” he purports to transfer his “liabilities” concerning the charges set out in the complaints to the Prosecutor. Again, I find that I can give no better reason for rejecting the defendant’s contentions other than to say they have no basis in law or common sense.
(xiii) The Constitutional Point
During oral submissions Mr Gale argued that while initially valid the Constitution of Australia was rendered a nullity when the Commonwealth of Australia became a privately owned US corporation. In support of this contention the defendant provided a significant quantity of documentation apparently obtained via a Freedom of Information request to the Department of the Treasury (Cth).
A review of the materials provided by the defendant reveals the Commonwealth of Australia voluntarily sought registration with the Securities and Exchange Commission (US) in or about 2009 so as to provide information in support of the “Australian Government Guarantee Scheme”. The scheme being a mechanism whereby eligible deposit taking institutions (mainly banks) could apply to have unsecured debt guaranteed by the Commonwealth of Australia. Said scheme remained in place during a period of “heightened turbulence in international capital markets” – namely between November 2008 until March 2010. The scheme was obviously designed to increase confidence in Australia’s main financial institutions during said period of financial “turbulence”.
In relation to this ground of argument I refer to the comments of Porter J in Nibbs v Devonport City Council [2015] TASSC 34 at paragraph 44: “A matter will not arise under the Constitution if it does not really and substantially, or genuinely, arise: see ACCC v CG Berbatis Holdings [1999] FCA 1151; (1999) 95 FCR 292 at 297; Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 at [25]–[30]; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 at [12]. A constitutional point must not be trivial or vexatious, or frivolous in the sense of being patently unarguable or completely devoid of merit”. cc No genuine constitutional point has been raised. The arguments proffered by the defendant are devoid of merit. Additionally, I note the operation of s 78B(1) of the Judiciary Act 1903. There is no evidence that notice has been served on the Attorney-General for the Commonwealth, or for the States of Australia. Thus, I cannot determine any Constitutional point of law, even if such had been properly raised.
Conclusion
I refer to and adopt the comments of Martin J, with whom the other members of the Court of Appeal agreed, in Kosteska v Magistrate Manthey & Anor [2013] QCA 105 at [17] where his honour said:
“This is not the first case in which Ms Kosteska’s argument has been advanced. It, and others like it, have wasted the time of the courts and opposing litigants, together with taxpayers’ money for some time. (This is not a peculiarly Australian problem. Similar fruitless cases have burdened the Canadian courts – so much so that Associate Chief Justice Rooke has examined in detail the characteristics, indicia and concepts of what he describes as Organised Pseudolegal Commercial Arguments.)”
And in NSW Bauskis v Wainhouse & Ors [2020] NSWCA 17 concerned Bauski' denial of jurisdiction regarding the seizure of a red cattle dog named “Duke” by officers of Fairfield Council from Bauskis’ residential property.
Bauskis had made allegations of trespass to property and goods, conversion of a chattel (“Duke”) and sought the return of Duke together with damages. The parties sued were Fairfield Council, two of its officers who effected the seizure of “Duke”, and the State of New South Wales as the entity responsible for the police officers who attended the scene when Mr Bauskis refused the Council officers access to his property.
The litigation begain when Bauskis refused the Council's dogs officer entry to his property after two dog attacks and stated he did not recognise the Council as a legal entity. Bauskis contacted the police, who attended the property. Bauskis reportedly said “[t]he Companion Animals Act is not the law and it does not apply to me”.
His submissions in this instance were:
(1) the case brought by the applicant in the District Court could only be determined by a jury;
(2) there were procedural defects including the defendants not being required to “enter any pleas” such that the proceedings were to be described as a “Kangaroo Court”;
(3) a contempt of court was committed by unidentified people in relation to the proceedings;
(4) the District Court had no jurisdiction and could not proceed without a jury without the “clear and unequivocal consent of the parties to do so”. In this regard a report of the reasons of Forbes CJ in R v the Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20 and the Supreme Court Procedure Act 1900 (NSW) was relied upon;
(5) a submission under the heading “QUO WARRANTO” was advanced, relying upon, variously, the restoration of Charles II in May 1660, the Constitution of the Commonwealth, the maxim “if it ain’t broke, don’t fix it”, remarks attributed to Thomas Jefferson and Ecclesiastes 3:16.
