Illegals

The preceding post noted the federal Opposition's Contract With Australia, which features dogwhistles about "illegal" refugees, consistent with recent hyperbole from Opposition representatives who seem distressed about the few thousand people arriving in leaky boats from Asia but indifferent to the much larger number of people arriving via passenger planes from Europe and then outstaying their visas.

The Contract promises to "Enforce strict border security and control" -

The Coalition will maintain rigorous offshore processing of those arriving illegally by boat, reintroduce temporary protection visas (to deprive people-smugglers of a product to sell) and be ready, where possible, to turn boats back.

Calling King Canute?

A perspective on selective indifference is provided by a recent 20 page report from Amnesty International about Malaysia's treatment of refugees - Abused and abandoned: Refugees denied rights in Malaysia [PDF].

The report reveals a "litany of abuses suffered by refugees in Malaysia, the vast majority of whom are from Myanmar" and presumably chose not to be the children of English or Swedish professionals, study law at an EU university and come to Australia on an extended holiday. Such an omission is, it seems, an act of criminality. The AI report notes that refugees and asylum-seekers in Malaysia are subjected to arbitrary arrest, detention in "atrocious conditions", caning and human trafficking. It comments that -

Malaysia has consistently failed to ratify international standards that protect and promote the rights of refugees and asylum-seekers. It is not a state party to the 1951 UN Convention relating to the Status of Refugees or its 1967 Protocol, the major international instruments governing refugee protection. Similarly, it is not a state party to the:
• International Covenant on Civil and Political Rights (ICCPR);
• UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• International Convention on the Elimination of All Forms of Racial Discrimination;
• International Covenant on Economic, Social and Cultural Rights (ICESCR);
• 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

The report notes that -

Malaysia effectively maintains that refugees and asylum-seekers do not exist in the country. There is currently no legislative or administrative framework for dealing with refugees, and Malaysian law makes no distinction between refugees, asylum-seekers and irregular migrants. Refugees and asylum-seekers have no legal right to work in the country. They do not receive any assistance from the government, and some resort to working without authorization just to survive. State officials have explicitly refused to recognize refugee rights. Malaysia actively penalizes those who are deemed in breach of its immigration laws. Refugees and asylum-seekers are subject to criminal penalties, harassment, ill-treatment, extortion, unnecessary and prolonged detention. ... All are considered to be illegal and are subject to the same penalties. Entering and staying in Malaysia without a permit (illegal entry) is punishable with a fine of up to 10,000 ringgit (US$2,915), imprisonment of up to five years and, since 2002, "whipping of not more than six strokes". The same punishment, including caning, applies to those who unlawfully re-enter or reside in Malaysia after they have been deported. Overstaying a visa is punishable by a fine and imprisonment on the same terms as illegal entry – up to 10,000 ringgit and five years – but does not include caning. The same punishment applies to those who enter or leave Malaysia other than at an authorized immigration control post.

The Malaysian Constitution provides that those who are arrested must be brought before a magistrate within 24 hours or released. However, non-citizens who are arrested for immigration violations may be held for up to 14 days before being brought before a magistrate. They are then transferred to immigration detention facilities, where they can remain for extended or even indefinite periods.

It suggests that a potential solution is the introduction of government ID cards for UN-recognized refugees.

A recent post by John Menadue on the ABC's Drum site comments that -

If Ben Chifley had responded only to populist prejudice, his government would not have accepted Jewish refugees after WWII. Malcolm Fraser would not have allowed large-scale Indochinese refugee programs in the 1970s and 80s if he had consulted only opinion polls. They both showed leadership in 'encouraging the better angels of our nature' as Abraham Lincoln put it.

Sadly an appeal to fear and xenophobia has been the more chosen route. Fear of the foreigner and the outsider is as old as human history itself. In Australia, we have a long history of demonising migrant and refugee groups. In 2010, we again have a thinly veiled appeal to racism and xenophobia, called 'protecting our borders'.

We need to correct the dangerous and wilful misrepresentation and misinformation about asylum seekers. In the longer term we need to revisit approaches that were successfully adopted in the 1980s by the Fraser Government.

Menadue goes on to suggest that we consider facts -

• Push factors, crises such as war and persecution, force desperate people to reluctantly leave their homes. When the crisis subsides, so does the people flow.

• As an island country at the 'end of the line', Australia does not have anything like the refugee flows that occur elsewhere. In 2009, Australia received 6,170 asylum applications. In the US it was 49,020, France 41,980, Canada 33,250 and UK 29,840 At the end of 2008, there were 42 million forcibly displaced persons worldwide, including over 15 million refugees. Australian exposure to asylum seekers is miniscule.

• Less than 2 per cent of Australia's migration intake comes from asylum seekers. Yet Essential Research reports that 10 per cent of Australians believe that half or more of our migrant intake were asylum seekers; 15 per cent said about 25 per cent and 13 per cent said about 10 per cent. Only about 18 per cent of Australians were close to the mark in saying only 1-2 per cent. The misinformation is working.

• The pattern varies, but the majority of asylum seekers come to Australia by air and not by sea. As the Australian Parliamentary Library put it: 'the vast majority of asylum seekers ... arrive originally by air (96 per cent - 99 per cent)'.

• Most boat arrivals who seek asylum are found to be refugees. Past figures show that between 70 per cent to 97 per cent of asylum seekers arriving by boat have been found to be refugees. This is far higher than for asylum seekers who come by air.

• Our exaggerated focus on boat people ignores the fact that there are about 50,000 illegal over-stayers in Australia. They are real illegals, unlike asylum seekers who are legally entitled to seek our protection whilst their claims are assessed.

Mere puffery, sir!

A friend has pointed me to Tony Abbott's Contract With Australia [PDF], a rather lame version of the US Contract With America -

This document contains my Contract for real action for Australia.

It comprises 12 realistic, modest and prudent election commitments that are achievable and deliverable over the next three years. I guarantee to take real action to deliver on these commitments because I believe that actions speak far louder than gestures, words and stunts. The Coalition will deliver on these commitments.

In contract law much of the document would be characterised as puffery ... we know that it is an airy nothing that is not legally actionable and the supposed guarantee is meaningless. Can you get your money (or vote) back if the Opposition Leader resiles from his promise? No. Claim damaqes for non-performance? Invoke protection under the Trade Practices Act (Cth)? No.

Contract item 10 - 'item' is presumably the preferred characterisation, rather than 'promise' (particularly as Mr Abbott's role model famously distinguished between core [ie 'real'] promises and the faux promise) - concerns CCTV.

Provide safer neighbourhoods.

The Coalition will work with local councils and police to ensure that more crime-prone areas have closed circuit TV (CCTV).

If only crime reduction was so simple, there were no concerns about fostering belief in technological silver bullets and no problems with the diversion of resources.

There is no reason to believe that deployment of cctv will necessarily increase public safety and reduce crime in neighbourhoods that are "more crime-prone" or merely in more neighbourhoods. Is the coalition proposing to fund monitoring by local government personnel - or by their agents in the private security sector - using cctv, given that safety involves more than installing a cam and hoping that someone remembered to start the recorder? What of the role of state/territory governments, given that police are state/territory rather than local government agencies? Where does private sector cctv fit in? And does 'cctv policing' (as distinct from, for example, more police on the street, especially on foot rather than in patrol vehicle drive-bys) substantially increase public safety? Will the states be requisted to ban the wearing of 'hoodies'?

The Opposition would be advised to look at studies such as 'Open-street CCTV in Australia: The Politics of Resistance and Expansion' by Adam Sutton & Dean Wilson in 2(3) Surveillance and Society (2004) 310 and Surveillance, Closed Circuit Television and Social Control (Aldershot: Ashgate 1998) edited by Clive Norris, Jade Moran & Gary Armstrong.

Cold hard facts about safety are, presumably, less significant than statements such as "We stand for taking real action, seeing things through and getting things done. We stand up and take responsibility for our election promises".

Fastidious, soigne kittycats

Bennett J in Mars Australia Pty Ltd (formerly Effem Foods Pty Ltd) v Société des Produits Nestlé SA [2010] FCA 639 (on appeal from Effem Foods v Nestlé SA [2008] ATMO 55) has put aside the decision of the delegate of the Registrar of Trade Marks given on 30 June 2008 regarding Australian trade mark application no. 932937, with Mars - the petfood n chocolate conglomerate - gaining the colour trade mark for its products as "cat food and additives for cat food".

Fastidious, soigne kittens, to adopt the phrase of Dyson Heydon in one of his naughtier moments, will presumably rejoice.

Mars has been identifying its Whiskas cat food products using a shade of purple that was claimed as having been created "from scratch" (de novo, rather than with a tabby's claws) to brand designer food for cats.

It is used on all varieties of Whiskas cat food as the predominant colour of the packaging. It forms the background to all other material included on the packaging.

Mars sought to register that colour as a trade mark under the Trade Marks Act 1995 (Cth) for "Foodstuffs for domestic pets and additives for such foodstuffs", claiming that the mark satisfies the requirements of s 41 of the Act (ie capacity to distinguish). An official in IP Australia, acting as delegate of the Registrar of Trade Marks, considered that 'Whiskas Purple' was not inherently adapted to distinguish Mars' goods.

The Delegate noted that other traders used different shades of purple to identify varieties of cat food. The Delegate accepted that consumers would associate the colour with Mars' product but did not accept that consumers sufficiently recognised the colour to always distinguish Mars's goods from those of competitors and rejected Mars' claim that any relevant usage of Whiskas Purple would suggest an association with Mars. Moreover, the Delegate considered that it would "not remotely be tenable" to say that the proposed mark distinguished goods upon which it had never been used, such as other pet food, particularly dog food.

Nestlé opposed Mars' application to register the colour as a mark.

The current judgment states that -

Mars recognises and accepts that other traders have, before and after the priority date, used a form of purple on pet food packaging. While Mars does not accept that such use includes the use of colours that are very similar to Whiskas Purple, in my view there is evidence of such use. However, Mars emphasises that the use of a purple colour by other traders has not been shown to be trade mark use. It points out that, on the evidence, most use involves the use of purple on specific varieties within a product range to distinguish such varieties. It submits that other traders would not be likely without improper motive to desire to use the mark, or some mark nearly resembling it, upon or in connection with their own goods in any manner that would infringe the Mars mark ... Mars says that registration of Whiskas Purple does not destroy its primary use as a colour for trivial, descriptive or other non - trade mark use. It will not prevent non - trade mark use of the colour purple or a pink-purple by others, for example to indicate a particular variety in a product range.

It goes on to note that -

Mars points to the extensive evidence of the marketing of Whiskas Purple and of its use, which have served to establish the trade mark significance of the Whiskas Purple colour in the minds of consumers and the association between that colour and the Whiskas range of products. Further, there had been no previous use by Mars of such a colour. Mars had previously used blue on the packaging of Whiskas products. It adopted an entirely new colour as a trade mark and promoted it heavily from the outset with, as the evidence establishes, the clear intention of giving the colour a trade mark significance. The Act accepts (s 17 and s 6 of the Act) and the evidence establishes that a colour can function as a trade mark. Mars adduced expert evidence which supports its contention that Whiskas Purple functioned in this way at the priority date. As at the date of a survey conducted in May 2009, the evidence supports the submission that Whiskas Purple did function as a trade mark, a badge of origin by which consumers identified Mars’ goods in contrast to the goods of other traders. Mars relies on its use of Whiskas Purple as establishing that the colour in fact distinguished its goods so that it must have been capable of distinguishing them for the purposes of s 41(2) of the Act within the meaning of s 41(5) and, alternatively s 41(6). Mars submits that the Whiskas Purple colour itself has, by the use which has occurred, come to distinguish Mars’ goods.

I don't think that they like him

A nice denunciation from the UK Guardian -

The UN's scientific and cultural organisation, Unesco, has put on hold the award of a prize for "improving the quality of human life" paid for and named after one of Africa's most authoritarian, brutal and corrupt rulers.

The prize, aimed at scientists, is funded with a $3m (£2m) donation by President Teodoro Obiang Nguema Mbasogo of Equatorial Guinea who is regarded as having made a major contribution to human misery as well as curtailing more than a few lives. It was to have been awarded later this month but has been suspended following an international outcry.

Obiang, 68, is known not only for having his predecessor executed and the arbitrary arrest and torture of political opponents but for plundering his country's oil wealth while many of its people live in poverty.

A Grauniad criticism of some of the Middle Eastern monsters would now be in order.

Fake MD

The ABC reports on another medical practitioner who wrote his own qualifications and has now been sentenced by the NT Supreme Court to 14 months in prison.

Singapore national Balaji Varatharaju, 29, was employed as a doctor at the Alice Springs Hospital for nine months. The news report indicates that 'medical staff became suspicious of his lack of clinical knowledge, leading to the discovery that he had forged his medical degree from Adelaide University. Varatharaju had been enrolled in the six year medical degree but was expelled for forging a senior lecturer's signature on a research paper and for attempting to change an E-grade into a B-grade.

Blokland J commented that Varatharaju, who also pleaded guilty to the aggravated assault of a patient during a medical procedure, had breached the trust of patients and the medical board with a deception that required "some significant confidence and audacity". "The breach of faith with the Alice Springs Hospital and the medical board are of a high order given the deplorable consequences that can flow from such deception."

Varatharaju's lawyer told the court that the bogus doctor's motivation was to help people, rather than money. Of course he is remorseful for his actions.

We might want to enhance our vetting of medical practitioners.

Offshoring, Secession and Sovereign Citizens

A friend points to a BBC item on supposed plans in Andhra Pradesh to set up an outsourcing unit in a jail, with "200 educated convicts" handling "back office operations like data entry, and process and transmit information". Oh joy. The proposed unit is described as a public-private partnership between the Andhra Pradesh department of jails and Radiant Info Systems.

The idea is to ensure a good future for the educated convicts after they come out of jail," CN Gopinath Reddy, director general of prisons in Andhra Pradesh, told the BBC. "With their experience of working in the BPO [business process outsourcing] in jail, any company will absorb them in future." ... The unit, which is expected to undertake back-office work for banks, will work round the clock with three shifts of 70 staff each.

The intention is that the work "will also be financially rewarding for the prisoners", and "benefit the inmates as well as help the IT company make some profits". If the unit is successful the outsourcing could be extended to other jails in the state. Be afraid, be very afraid.

In Williamson v Hodgson [2010] WASC 295 - originating as a traffic dispute - the WA Supreme Court has considered pseudolegal claims. 

The Court states 

[13] Mr Williamson submitted that the learned magistrate erred in law by refusing his request for a trial by jury. 

 

[14] Mr Williamson submitted that he was entitled to a jury trial by virtue of s 80 of the Commonwealth Constitution. This section provides: 

 

The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. 

 

[15] This section does not apply to this case. Mr Williamson was not charged on indictment with an offence against the Commonwealth. He was charged with a simple offence against the law of Western Australia. Under Western Australian law only certain offences can be tried by judge and jury. A citizen is only entitled to a jury trial if he or she is charged with an indictable offence in either the Supreme or District Courts; pt IV of the Criminal Procedure Act 2004 (WA). 

 

[16] A speeding offence is a simple offence which can only be tried in the Magistrates Court; s 11 of the Magistrates Court Act 2004 (WA). The learned magistrate was right to refuse Mr Williamson's request for trial by a jury. He had no power to do so. This ground has no merit. (iii) Alleged contraventions of United Nations Covenant on Civil and Political Rights 

 

[17] Mr Williamson submitted that the provisions of the Road Traffic Act 1974 (WA), and I will assume the Road Traffic Code, are unlawful because, he says, they are inconsistent with the United Nations International Covenant on Civil and Political Rights (UN Covenant). Australia is a party to the UN Covenant but it has not been incorporated into Australian law and does not operate as a direct source of individual rights and obligations under that law. 

 

[18] The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where at 286 - 287 Mason CJ and Deane J said: 

 

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. 

 

[19] Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request. 

 

[20] With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed. 

 

[21] However, this is not the only submission that Mr Williamson made based on the UN Covenant. Mr Williamson alleged that the learned magistrate treated him in such a way as to infringe his rights under article 14 of the UN Covenant. Essentially, this is an allegation of actual or at least apprehended bias and I will treat it as such. 

 

[22] Mr Williamson alleges that the learned magistrate did not bring an impartial and unprejudiced mind to the case. The tests for actual and apprehended bias were set out in Gamage v State of Western Australia [2008] WASCA 49. There Steytler P said [54]: There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. ... 

 

[23] In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said [11] - [12]: 

 

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. (footnotes omitted) 

 

[24] The fair-minded lay observer is one who should be taken to have informed himself or herself '... on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' Johnson v Johnson [53] per Kirby J. See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87. 

 

[25] Kirby J set out in Johnson v Johnson [46] some considerations which a Court will take into account when judging bias. Further, at [52] he states the knowledge that should be imputed to the fictitious bystander. I found these statements useful in judging the learned magistrate's conduct in this case. 

 

[26] I have carefully read the transcript of proceedings. The prosecution case was wrapped up very quickly without objection. Mr Williamson made it clear he did not dispute the facts. The learned magistrate then heard from Mr Williamson. Mr Williamson did not give evidence, rather he made submissions. In truth what occurred was a lengthy dialogue between Mr Williamson and his Honour that occupied 30 or so pages of transcript. 

 

[27] His Honour's task was difficult. With great respect to Mr Williamson some of his submissions were hard to understand and were irrelevant. Some of the submissions he made related to issues that had already been decided by the Court of Appeal. 

 

[28] On the other hand I recognise that his Honour too drifted into irrelevancy. For example, his Honour early in Mr Williamson's submissions made irrelevant comments about the effects of speeding drivers on our roads. Later, Mr Williamson and his Honour engaged in discourse about the republic and the evolution of the law. 

 

[29] At one point (ts 9), Mr Williamson alleged that his Honour swore at him. The alleged swearword is not transcribed and appears to me, if it was uttered, to be totally out of context. Mr Williamson, who is articulate and not reticent about making a point, made no comment about it at the time. I am not satisfied that his Honour swore at Mr Williamson. 

 

[30] Looking at the transcript as a whole, it seems to me that Mr Williamson was given an ample opportunity to make all his points and he did so. 

 

[31] His Honour attempted during the making of submissions to understand them and to point out the flaws in those submissions. He did so often in unambiguous language, calling some of Mr Williamson's submissions 'complete nonsense' and 'complete and utter nonsense'. In my opinion his Honour was entitled to indicate his views to Mr Williamson in firm terms. 

 

[32] There were a few occasions where the learned magistrate was sarcastic towards Mr Williamson. For example (ts 9), when Mr Williamson sought a trial by jury his Honour asked, 'Where are they, your peers, at the moment? Will you look up the Yellow Pages for your peers?' When Mr Williamson made the submission that he had seceded from Australia, his Honour said, 'You're Prince Leonard of Toodyay'. 

 

[33] With respect to his Honour, sarcasm is inconsistent with the judicial obligation to be respectful to litigants and should be avoided. However, I do not think that its use here indicated bias. 

 

[34] I accept that at times, but by no means all of the time, his Honour displayed less than perfect courtesy, patience and tolerance. For example, out of exasperation, I suspect, his Honour made the inappropriate comment shortly before sentencing Mr Williamson, 'I feel like giving you life imprisonment'. 

 

[35] In my opinion, a fair-minded lay observer, being aware of all the relevant circumstances of the case would not have thought that his Honour was biased against Mr Williamson. It cannot be overlooked that Mr Williamson admitted all the elements of the offence and that the submissions that he made were entirely without merit. 

 

[36] While his Honour might have conducted the proceedings better, no injustice has been caused to Mr Williamson. This ground has no merit. 

 

(iv) Alleged secession 

 

[37] Mr Williamson claims to have seceded from the Commonwealth of Australia and that he is not subject to the Road Traffic Code. He said today that the UN Covenant has given him this right. With respect to Mr Williamson, this is a misinterpretation of this document. 

 

[38] The only lawful means by which land ceases to become a part of the state is set out in s 123 of the Commonwealth Constitution. The procedure described in this section has not been followed. Mr Williamson, or more correctly the land he has some connection with, has not lawfully seceded. Even if some part of the state to which Mr Williamson occupies had seceded, Glen Forest where Mr Williamson's driving occurred, remained part of Western Australia. 

 

[39] Any person whether a citizen of Western Australia or somewhere else is liable to abide by the laws of Western Australia including its road traffic laws. This ground has no merit. 

 

(v) Alleged invalidity of the Magistrates Court 

 

[40] Mr Williamson submitted today that the Magistrates Court did not have the lawful authority to try him since the passing of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (the Act). 

 

[41] Broadly speaking, the Act changed references from the Crown and Her Majesty in the statutory law of Western Australia to the State and the Governor. As I understood Mr Williamson's submissions, the Act unlawfully effects an amendment of the State Constitution as to the authority of the Crown and the Monarch. The consequence of this, he says, is that courts sitting under the name of the State, such as the Magistrates Court, are invalid and their decisions are also invalid. 

 

[42] This submission has been put to and comprehensively rejected by the Court of Appeal on several occasions. I am bound by those decisions, but it is not simply a matter of following precedent. Those decisions are undoubtedly correct. The Act does no more than change the terminology used in many statutes. It does not and could not amend the State Constitution. Even if it unlawfully amended the State Constitution, this would not invalidate a court's powers or a court's judgment or order . As to this see Glew v Shire of Greenough [2006] WASCA 260 [16], [20]; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; and Glew v The Governor of Western Australia [2009] WASC 14. This submission has no merit. 

 

(vi) Alleged invalidity of prosecuting entity 

 

[43] Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN. Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police. 

 

[44] A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. 

 

[45] An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit-making venture. It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN. In any event Mr Williamson was not dealt with under the infringement notice provisions of the Road Traffic Act. He was dealt with in Court. The prosecution was initiated by a police officer, a person who had the relevant authority to prosecute Mr Williamson. This ground has no merit.

Missing passports

Australian passports are of interest as official mechanisms that facilitate travel and government assistance and serve as primary identity documents in public/private interactions within Australia for people who do not have a driver licence (eg in renting a video or meeting '100 Points' identity verification requirements in opening a bank account.

It is thus interesting to see a 25 page report [PDF] by the Commonwealth Ombudsman on the handling, or mishandling, of missing passports.

The Ombudsman indicates that -

More than a million passports are sent through the Australian post each year. Most commonly these are new passports issued by the Department of Foreign Affairs and Trade (DFAT) and passports sent to and from diplomatic missions for visa purposes. Australia Post carries the majority of these passports.

The Postal Industry Ombudsman noted an increase in complaints about passports going missing in the post, from 1.2% of total complaints about Australia Post in 2007–08 to 2.2% in 2008–09. Although these complaints comprise only a small overall percentage of complaints to our office, we consider that the security and financial implications involved in the loss of a passport warrant treating this kind of complaint seriously.

The most frequent passport-related postal complaints brought to this office are first, that a passport has been lost, and second, that the amount of compensation offered by Australia Post for the loss of the passport is inadequate. In investigating Australia Post processes and practices relating to its handling of complaints about lost passports we considered: how Australia Post deals with complaints of this nature the postal services used by passport holders and the compensation arrangements available in case of loss.

The Ombudsman sought information from DFAT, as a bulk sender of passports and the agency responsible for issuing passports and dealing with reports of their loss. It goes on to report that -

As a result of our investigation, we have concluded that there are measures that both Australia Post and DFAT could put in place to capture better data about lost passports. This would enable more useful analysis of patterns of loss and expose possible systematic stealing of passports.

We have also concluded that Australia Post should redraft its terms and conditions and other information it makes available to the public about how to send passports through the post, and the compensation payable if a passport is lost. Updated versions could clarify the postal services available to customers and the protections for customers against the direct costs of loss of a passport.

Generally speaking, we do not consider it unreasonable for Australia Post to exclude payment of compensation for consequential loss (such as loss of income related to time off work) from its terms of service. Customers should be made aware of this, and should make passport and visa arrangements in ample time to deal with matters if a passport is lost. If that is not possible, customers should consider alternative arrangements that avoid the risk of loss in the course of carriage.

This report deals mostly with the inconvenience and damage encountered by members of the public when a passport is lost in the post. There are, of course, other considerations that make it important to minimise the risk of lost passports. Chief among these is the need to safeguard the integrity of the Australian passport system and reduce the risk for individuals that their personal information will be obtained by a third party. The danger of identity theft is a prominent concern within government. The recommendations in this report could go some way to reducing those and other risks.