IN THE COURT OF APPEAL
OF THE
OF
AP 12 of 2004 – (20207648)
AP 13 of 2004 – (20207624)
AP 15 of
2004 –
(20207623)
ON APPEAL from the judgement of
Angel J in proceeding
No. JA 100/03, 101/03, 102/03 and 105/03
BETWEEN:
ROBERT PAUL INDER-SMITH (AP 13/04)
GARY
WILLIAM
MEYERHOFF (AP 15/04)
Appellants
AND
THE QUEEN
Respondent
______________________________________
APPELLANTS’
WRITTEN
SUBMISSIONS
______________________________________
PREAMBLE
[1] The Appellants would like to say a few words about our preparation for this appeal. Although there has been almost seventeen months since the decision that we are appealing today, the Appellants have been under considerable stress and pressure during that time.
[2] The Appellant Meyerhoff has been quite ill. He has a recurring HIV-related pneumonia and according to a letter written by his doctor, Dr Brian Hughes, to assist the Supreme Court in another matter, his life expectancy is looking pretty grim. This in itself has caused all of the Appellants considerable stress. The Appellant Meyerhoff can provide the court with a copy of an affidavit and supporting medical documents previously filed on the 26th of November 2004 in AP 15 of 2004 and there is also a copy of Dr Hugh’s letter (dated some time in mid-October, 2005) on that file. These documents confirm his poor health status.
[3] The Appellant Meyerhoff’s medical condition
has also
been impacted upon by the abundant court matters that the Appellants
have faced
in the Darwin Magistrate’s Court and the Northern Territory Supreme
Court since
the formation of the Network Against Prohibition NT (NAPNT) on
[4] Many of the charges against NAPNT members have
resulted
in prison terms. The Appellants
[5] The Appellants’ financial situation has also caused us problems in the preparation of this appeal.
[6] All of the Appellants are indigent. We are all in receipt of Centrelink benefits. This is a major factor affecting the Appellants’ ability to print out and photocopy all of the documents referred to in these written submissions.
[7] The Appellants have been unable to afford private legal representation or legal aid for this matter.
[8] The former High Court Justice Lionel Murphy said that is easier for a camel to pass through the eye of a needle than for a poor man to get justice.
[9] These written submissions have been made under the most trying circumstances.
[10] The Appellants ask for leniency from the court in this regard.
INTRODUCTION
[11] This is an appeal in the Court of Appeal in the Northern Territory
of
Australia against conviction for breaching section 61 of the
Northern
Territory Criminal Code. The Appellants appeal the
[12] It is the Appellants’ contention that the conviction be quashed or at the very least, a mistrial declared.
[13] As are set out in original appeal of the decision of Wallace SM dated 5th June 2003 (pages 22 to 24 in the appeal book) and the amended notice of appeals dated 08/06/04 (Inder-Smith, pages 30-34 in appeal book), 10/06/04 (Highway, pages 25-29 in the appeal book) and 21/11/03 (Meyerhoff, pages 35-38 in the appeal book) there are numerous grounds for this appeal and it is actually an all grounds appeal. The grounds for the appeal are set out below and they follow in no particular order:
[14] The Magistrate’s Court had no jurisdiction to hear the matter.
[15] The Appellants were not legally represented and not advised of their rights.
[16] There could not have been a fair trial in the context of hostile media coverage.
[17] The Appellants do not believe the
Constitution has been correctly interpreted in light of Mabo and other
changes
in
[18] The Appellants believe that a
Parliament
that presides over a racist and corrupt state has fewer rights under
the
Constitution than people who protest said racism and corruption.
[19] The convictions were politically motivated and resulted in the criminalisation of protest.
[20] This was a case of politically motivated malicious prosecution.
[20.1] Appellants could not have a fair trial in the context of Attorney General Peter Toyne’s comments to the media, which the Appellants believe amounts to contempt of court.
[21] The Appellants believe that Section 61 of the NT Criminal Code conflicts with their implied right to freedom of speech and access to government, as implied in the Australian Constitution.
[22] It is the Appellants contention
that the
“War on Drugs” and subsequent “tough on drugs” and zero tolerance
legislation
are illegal and breach international law.
[23] It is the Appellants contention that due to the ongoing “War on Drugs”, the appellants have available to them the provisions of the Geneva Convention, to which Australia is a signatory and should have been treated as such, and
[24] Wallace SM displayed overwhelming bias against the Appellants.
[25] The
[26] Angel J claimed that we want to decriminalise drugs when nowhere in the transcripts do the Appellants say that.
[27] Angel J ignored the defence put forward by
the
Appellants that they had Section 34(3) of the NT Criminal Code
pertaining to
provocation available to them. Angel J also ignored our contention that
the
Magistrates court had no jurisdiction to hear the case; it was a
political
trial; that the video selectively edited and Wallace SM was biased
especially
with his history with
[28] Lange v ABC. Misunderstands key questions in the important phrase: “effectively burdens freedom of communication”. The answers to each key question should be yes and no in that order – therefore S61 of the NT Criminal Code IS “invalid’’. Angel J erred by finding to the contrary.
[29] Angel J erred in finding Dietrich v Queen ‘’not relevant’’. He said: (the Appellants) ‘’didn’t obtain legal advice’’. The Appellants actually said and the transcripts prove it that legal aid refused to represent the Appellants unless they pleaded guilty.
[30] Angel J erred in finding there was no evidence of police harassment.
[31] Angel J said there was no proof of bias or politicisation of the trial’’.
[32] Angel J ignored the protections available to the Appellants through the Geneva Convention.
[33] Angel J erred in ignoring the Appellants defence available under Section 34 of the NT Criminal Code, provocation. His honour said “No reasonable person would have acted in the same way”. He presumes to know how we felt. Does his perspective of how people behave, extend to the press and to why people commit crime, apart from the obvious?
[34] Angel J ignored the Appellants’ claims that Wallace SM displayed overwhelming bias against the Appellant.
[35] Ultimately, what started as an innocent and peaceful protest against the Northern Territory Government’s draconian “drug house” legislation, and other human rights and social justice catastrophes that are happening around us, not only in the Northern Territory, but around the world, has turned into a case of malicious prosecution with a politically motivated outcome.
[36] It is the Appellants’ contention that it is obvious, from the above grounds of appeal, that there was no way that the Appellants’ could have had a fair trial in the Northern Territory and that Wallace SM, forced us to proceed, with no legal representation, ensuring that the hearing would result in a miscarriage of justice.
[37] We have attempted to address each of the appeal points.
Appeal point 1 – The
Magistrate’s Court had no jurisdiction to try this case
[38] The first appeal ground is that the
[39] There has been no definitive declaration by the Legislative Assembly in accordance with s.5 of the Legislative Assembly (Powers and Privileges) Act 1992.
[40] It is the exclusive jurisdiction of the Assembly to state if an offence has occurred and especially to prosecute in the Legislative Assembly sitting in its judicial role under ss. 5,25, and 26 of the Legislative Assembly (Powers and Privileges) Act 1992.
[41] The constitutional requirement of the separation of powers applies to the exercise of the powers of the house of representatives and exercise of similar powers vested in the legislative assembly by s.12 of the Northern Territory (Self-Government) act, as enacted under the legislative assembly (powers and privileges) act. There is a constitutional requirement that the judiciary does not have power to declare whether legislative assembly has been improperly interfered with or to punish persons for their exercising of their right to freedom of expression within the legislative assembly.
[42] Only one of the branches of Government has jurisdiction over the Act in question, and in this case clearly it is the exclusive jurisdiction of the Legislative Assembly, and in fact, there can be no offence without a vote under s.5 of the Legislative Assembly (Powers and Privileges) Act 1992.
[43] Further to the above, it is the Appellants’ contention that Section 61 of the NT Criminal Code is invalid for other reasons.
[44] It has been extremely difficult to find a
precedent for
our actions on
[45] In Australian law there are no precedents. A
major
reason for this is that
[46] It is the Appellants’ submission that section 61 of the NT Criminal Code is invalid because it conflicts with the NT Powers and Privileges Act and the separation of powers as laid out in the constitution. The Commonwealth Parliament has not seen fit to implement such legislation and the Appellants do not know the reasoning behind the laws implementation in the NT.
[47] To look into this properly it is essential that we look at the history surrounding the legislation.
[48] The Appellants were only able to find one precedent for an incursion into a Parliament and this was an incursion into the English Parliament in 1642 by King Charles 1 and three hundred soldiers. This led to the English Civil War.
[49] The status of the monarchy had started to decline under the reign of James 1. He was known as the “wisest fool in Christendom”. James was a firm believer in the “divine right of Kings.” James expected Parliament to do as he wanted; he did not expect it to argue with any of his decisions.
[50] However, Parliament had one major advantage of James – they had money and he was continually short of it. Parliament and James clashed over revenue. In 1611, James suspended Parliament and it did not meet for another ten years.
[51] In 1621, James re-called Parliament to discuss the future marriage of his son, Charles to a Spanish princess. Parliament was outraged that Charles would marry a catholic bride. The marriage never took place but the damaged relationship between the King and Parliament was never mended by the time James died in 1625. Charles 1 became King.
[52] Charles was arrogant, conceited and a strong
believer
in the divine right of Kings. From 1625 to 1629, Charles argued with
parliament
over most issues. In 1629 Charles had the doors of
[53] In 1640 when Charles grew short of money to fight the Scots, he recalled Parliament as only they had the necessary money needed to fight a war and the required authority to collect extra money.
[54] By 1642 relations were not good. Charles had to do as Parliament wished as they had the ability to raise the money that Charles needed. However, as a firm believer in the “divine right Kings”, such a relationship was unacceptable to Charles.
[55] He went to Parliament with three hundred soldiers to arrest his five biggest critics. These men had already been tipped off and escaped arrest, but Charles had shown his true colours. Members of Parliament represented the people, if Charles was prepared to arrest five members of Parliament simply because they dared to criticise him, how many others were not safe? The English Civil War was started.
[56] The war ended with the defeat of the Royalist’s Army at the Battle of Preston in 1648. Cromwell pushed for a full trial of Charles who was to be charged with Treason.
[57] On
[58] Charles protested against what he saw as the illegality of what he called “this pretended court”.
[59] The Act was in force for thirty days. Charles
was
sentenced to death on
[60] This precedent clearly supports the Appellants’ proposition that the Magistrate’s Court had no jurisdiction to hear the matter. As Charles was brought before members of Parliament in 1649, we should have been dealt with by the Parliament for the May 2002 incident.
[61] Cromwell was appointed Captain-General of the Commonwealth until his death in 1658.
[62] After ten years of tyranny under Cromwell,
the monarchy
was restored to
The first was the Act Legalizing the Convention Parliament in 1660 for “removing and preventing all questions and disputes concerning the assembling, sitting, and proceeding of” the present Parliament.
[63] In 1661 he gave assent to the Act Against Tumultuous Petitioning. This Act clearly recognised the Parliament as the people’s house and was enacted to lay out some boundaries with regards to the petitioning of the Parliament by citizens. It also aimed to prevent such incursions such as that of Charles 1 and three hundred soldiers in 1642.
[64] The Tumultuous Petitioning Act reads:
“Wherefore by statute 13 Car. II. st. 1. c. 5. it is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assises or quarter sessions; and, in London, by the lord mayor, aldermen, and common council: and that no petition shall be delivered by a company of more than ten persons: on pain in either case of incurring a penalty not exceeding 100 l, and three months imprisonment.”
[65] Another Act that prevented large groups of
people from
approaching Parliament house was Seditious Meetings Act 1817,
particularly
section 23. Both of these Acts were repealed in
[66] Whether or not our entry into the Legislative
Assembly
is identified as petitioning is a matter of opinion. A number of the
appellants
including myself referred to petitioning while giving evidence in the
Magistrate’s Court. There was no evidence to suggest that we were not
petitioning the Government. Nine people entered the Northern Territory
Legislative Assembly on
[67] Finally, the Bill of Rights 1688 clearly states in point 5:
“That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal”.
[68] This shows the intention of the English Parliament to allow and encourage its citizens to petition the King and/or the Parliament about their grievances. Section 61 of the NT Criminal Code conflicts with this fundamental principle in the Bill of Rights and therefore should be declared invalid.
[69] The Bill of Rights also says:
“That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament”.
[70] This principle has been breached by our prosecution by the NT authorities. This is further evidence that the Magistrate’s Court had no jurisdiction to hear the matter and that Magistrate Wallace should have adjourned the matter to the Supreme Court so that this legal issue should be looked at.
[71] On this ground alone the appeal should be allowed and the conviction dismissed. It would be unlawful for this matter to be reheard in the Magistrate’s Court or the Supreme Court. It is clear that only the Legislative Assembly had the power to prosecute the Appellants in this matter. This option is still open to them.
Section 4 of the NT Powers and Privileges Act says:
[72] “The powers (other than legislative powers), privileges and immunities of the Assembly and of its members, committees and officers, to the extent that they are not declared by this Act, other than this section, shall be the powers (other than legislative powers), privileges and immunities for the time being of the House of Representatives of the Commonwealth, and of the members, committees and officers, respectively, of that House.”
[73] The important statement there is “The powers, privileges and immunities of the Assembly and of its members, committees and officers”. That statement clearly shows that the powers, privileges and immunities apply to the Legislative Assembly as a space, as a structure, as well as to its members, committees and officers.”
[74] We cannot therefore be charged under section 61 of the NT Criminal Code. The only way we can lawfully be prosecuted under the powers and privileges act.
[75] Section 6 of the same Act says:
“For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Assembly and, as so applying, shall be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
[76] (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Assembly, and for the purposes of this section, "proceedings in Parliament" means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the Assembly or of a committee”.
[77] The important statement here is “Proceedings in Parliament means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of business in the Assembly.”
[78] There is no doubt that our entry into the chamber of the Legislative Assembly was an act done incidental to the transacting of business in the Assembly.
[79]
[80] “The temptation not to heed what s. 16(3) of the Parliamentary Privileges Act 1987 says is strong; the results, if one simply applies its language, are so odd that it is hard to believe Parliament could have intended them. We have the assurance of the Privy Council and of counsel for the Attorney-General of the Commonwealth that the provision merely represents the pre-existing law; that perhaps supports the idea that one should treat the sub-section as saying something different from the meaning its language seems to convey, but such a course would be unorthodox.”
[81] In this case the court must heed section 6 of the NT Powers and Privileges Act. It is my submission that it would be unorthodox if this appeal is not allowed and our convictions are not overturned.
[82] The events of
[83] ‘‘When a law of a
State or federal
Parliament or a Territory legislature is alleged to infringe the
requirement of
freedom of communication imposed by s 7, 24, 64 or 128 of the
Constitution, two
questions must be answered before the validity of the law can be
determined.
First, does the law effectively burden freedom of communication about
government or political matters either in its terms, operation or
effect?
Secondly, if the law effectively burdens that freedom, is the law
reasonably
appropriate and adapted to serve a legitimate end the fulfilment of
which is
compatible with the maintenance of the constitutionally prescribed
system of
representative and responsible government and the procedure prescribed
by s 128
for submitting a proposed amendment of the Constitution to the informed
decision of the people (hereafter collectively ‘the system of
government
prescribed by the Constitution’). If the first question is answered
‘yes’ and
the second is answered ‘no’, the law is invalid.’’ (Footnotes omitted.)[4]
[84] As the impugned provision does demonstrably restrict the implied freedom, by purporting to restrict prima facie political communication,[5] the answer to the first question is yes.[6]
[85]
A law is deemed to be reasonably appropriate and adapted to protecting
the
implied freedom of political communication only:[7]
[86]
'If the direct purpose of the law is to restrict political
communication, it is valid only if
necessary for the attainment of some overriding public purpose. If, on
the
other hand, it has some other purpose, connected with a subject matter
within
power and only incidentally restricts political communication, it is
valid if
it is reasonably appropriate and adapted to that other purpose.'[8]
[87] Therefore in
order to determine the validity of an impugned law, it is necessary to
examine
whether it is appropriate to means through which to achieve an
objective, which
is capable of protecting the implied freedom, despite imposing a burden
upon
it,[9]
or that the law be adapted to achieve this lawful end, through imposing
the
smallest burden possible.[10]
[88] The law must be capable of providing protection to, or promoting the Constitutionally prescribed system of government, or to providing the necessary climate for it to survive. Therefore the law, though imposing a significant burden upon some aspect of the implied freedom, may be demonstrated to be capable of providing increased protection to the requisite communication, and dissemination of information regarding the prescribed process.
[89] Where a law infringes drastically upon the implied freedom, it will be invalid if the desired ends could be achieved through less drastic means:
[90] 'In ACTV, for example, a majority of this
Court held
that a law seriously impeding discussion during the course of a federal
election was invalid because there were other less drastic means by
which the
objectives of the law could be achieved. And the common law rules, as
they have
traditionally been understood, must be examined by reference to the
same
considerations. If it is necessary, they must be developed to ensure
that the
protection given to personal reputation does not unnecessarily or
unreasonably
impair the freedom of communication about government and political
matters
which the Constitution requires.'[11]
[91] This requirement will therefore only be satisfied if the objective of the law, being a valid objective, is achieved with the imposition of the smallest possible burden upon the implied freedom.
[92] The impugned provision in this instance is ‘Disturbing the Legislative Assembly.’[12] The wording of the provision is particularly sparse and ambiguous, thus requiring recourse to the common law in order to determine the meaning of the provision.[13]
[93] In the
[94] 61. Disturbing the Legislative Assembly
[95] Any person who intentionally –
[96] (a) disturbs
the
Legislative Assembly while it is in session; or
[97] (b) engages in
conduct in the immediate view and presence of the Legislative Assembly
while it
is in session with the intention of interrupting its proceedings or
impairing
the respect due to its authority,
[98] is guilty of a crime and is liable to
imprisonment for
3 years.
[99] This section does not make unmistakably and unambiguously clear, whether in fact it does apply to legitimate political protest, therefore it possible that any strenuous objection to the activities of the legislative assembly, even within the legislature itself, could be seen as being sufficient to ‘disturb’ the legislature.
[100] A similarly worded section of the Criminal Code Act (QLD) was recently the subject of discussion in the Queensland Parliament, where the Premier of Queensland pointed out the following problems with the provision;
[101]
Sending an MP
to the criminal court would have several adverse consequences. The most
worrying of these is that a future government could cite such a
precedent and
use its numbers in parliament or on a committee to send opposition
members for
trial on charges under chapter 8 of the Criminal Code Act, such as
section 56
which refers to ‘Disturbing the Legislature’. A future government might
utilise
section 56, which makes it clear that—
[102] (1) Any person who advisedly—
[103] (a) disturbs the Legislative
Assembly while in
session ...
[104] is
guilty of a
misdemeanour, and is liable to imprisonment for 3 years.
[105] There
are no
qualifying definitions here. There is nothing to limit the guilty
person to a
member of the public who disturbs parliament. For example, I can see
nothing to
stop a loud and disruptive parliamentarian from being referred to the
criminal
courts for standing when he has been ordered to sit down by the Speaker
and
continuing to speak despite being told to stop by the Speaker. Some
people find
that very disturbing.
[106] The
Criminal
Code has no shades of grey here—absolutely none. According to the
Criminal
Code, every time the member for Callide, for example, disturbs the
Legislative
Assembly he is guilty of a misdemeanour and is liable to imprisonment
for three
years. But should the parliament deal with him through the criminal
courts
every time he disturbs parliament? Of
course not. Neither should we send the member for Sandgate to be
tried
in a criminal court. But the examples I have quoted raise the question
of
whether this chapter should be amended to make clear the intentions of
sections
such as 56 and 57. They were never intended to be used in the way that
has been
suggested by those opposite. I table chapter 8 of the Criminal Code.
[107] There
may be
those here who would scoff at the suggestion that a
[108] Therefore, the
provision could impose a drastic burden on the
freedom of political communication, and is not only not reasonably
adapted to
protecting the freedom, or to giving effect to the Constitutionally
defined
system of government, it can, according to Peter Beattie,[15]
cause
irreparable damage to it. The
legislation in the
[109] It is evident that the law is particularly inappropriate to the achievement of its desired objective, being the exclusion of unlawful entry to the chamber of the legislature,[17] as by doing so it could conceivably be used to limit or restrict political communication within the chamber, as no attempt has been made by the legislature to provide any defence or excluded class of communication, any person, regardless of position, who disturbs the chamber is guilty of an offence.[18]
[110] As the impugned provision is designed to achieve a legitimate objective, being the exclusion of unauthorised entry,[19] the fact that it imposes a severe restriction upon the freedom of political communication is sufficient to result in the invalidation of the provision if the desired end could be achieved through less drastic means, which would impose a lesser or no restriction upon the freedom of communication, thus, as the desired objective could be most easily achieved through utilizing the existing provision within the Criminal Code, aimed at unlawful entry, which would impose no significant restriction upon the freedom, it is evident that the provision is not reasonably adapted to achieving its desired end, and the protection of the Constitutionally implied freedom and system of government.
[111] Therefore, the answer to the second question is no, and the law is invalid.
[112] Alternatively, the impugned provision
purports to
restrict, abrogate or curtail the appellant’s fundamental common law
right to
freedom of expression. However, the provision that seeks to abrogate or
curtail
this fundamental right is not stated with the irresistible clarity, and
unambiguous and unmistakable language necessary for the courts to
impute such
an intention to the legislature.[20]
This is because it is:[21]
[113] 'in the last degree improbable that the
legislature
would overthrow fundamental principles, infringe rights, or depart from
the
general system of law, without expressing its intention with
irresistible
clearness; and to give any such effect to general words, simply because
they
have that meaning in their widest, or usual, or natural sense, would be
to give
them a meaning in which they were not really used.’[22]
[114] This is particularly evident in this instance, as not only does the provision purportedly abrogate or curtail the fundamental right to freedom of expression, and of political communication, within the legislative assembly, it makes no attempt to exempt any class of persons or provide defences to such offence. Indeed it appears that the legislature may not have intended the provision to restrict political communication at all, particularly as it appears that it has devoted little legislative thought to doing so, in which case the courts may not impute to the legislature that intention.[23] Thus the provision is invalid pro tanto, or the provision should be construed as meaning that unauthorised entry to the Legislative Assembly sufficient to disturb the assembly, excepting any such disturbance caused by political communication, or freedom of expression, is an offence.
Appeal point 2 - The Appellants
were unrepresented and were not adequately advised of their rights
[115] Despite numerous applications to have the matter adjourned to enable the Appellants to raise funds to obtain legal representation, Wallace SM forced them to go ahead with a hearing. This was also despite claims of ongoing police harassment and intimidation directed towards the Appellants before and during the hearing and submissions by the Appellant Meyerhoff that he was suffering ill-health. In all attributes, this hearing was not fair.
[116] It would be fair to say that the Appellants, with no legal background or training, were incompetent to conduct their defence in this indictable matter. Wallace SM should have ordered a stay of proceedings until the defendant’s were in a position to proceed.
[117] The conduct by the Appellants in the
[118] In R v McCormick (2000) 33 MVR 9; BC200008024; [2000] QCA 522, Helman J (with whom Pincus and Thomas JJA agreed) recognised with reference to R v Paddon [1999] 2 Qd R 387 per Chesterman J (with whom McPherson JA and Helman J agreed) at 393 that it is well established that before an appellate court will set aside a conviction on the ground that conduct by the defence occasioned a miscarriage of justice, it must fit the description of “flagrantly incompetent”.
[119] The Appellants believe that the conduct of
their
defence in the
[120] Paddon also establishes:
[121] (1) That the court will not lightly infer that the counsel's conduct of a trial, which has turned out badly for the accused, was incompetent. Unless the inference is the only one available and is compelled by the circumstances, it should not be drawn.
[122] (2) That flagrant incompetence in the sense of obvious, shocking ineptitude, will not be demonstrated by an error of judgment in the conduct of a criminal offence. There must, at least, be something in the conduct of the defence which could never be thought by a competent counsel in the circumstances of the trial to be of any possible advantage to the accused.
[123] (3) As long as the decision to adduce evidence can be seen as providing some forensic advantage to the accused, it cannot form the basis for intervention by an appeal court because it will not be possible to draw the inference of flagrant incompetence.
[124] (4) An appellant in such a case ought to approach the solicitors and/or counsel who appeared at the trial and request their support for the appeal by providing an affidavit concerning the matter which is said to constitute flagrant incompetence.
[125] The court also referred with approval to R v Green [1997] 1 Qd R 584 at 586–7; R v Birks (1990) 19 NSWLR 677 at 683–5; 48 A Crim R 385 and R v Miletic [1997] 1 VR 593 at 598.
[126] Although there is no duty on the trial judge to inquire whether an unrepresented accused person wishes to have counsel it is in general desirable that this should be done. See R v Hanias (1976) 14 SASR 137. It is the Appellants contention that Wallace SM did not make it clear in his own mind as to whether the defendants in the matter wanted legal advice.
[127] The essential judicial characteristics of patience and courtesy must be displayed at every trial particularly a criminal trial conducted before a jury at which the accused person has not had the benefit of legal representation. It is the duty of the trial judge to take special pains to ensure that an accused person who is not legally represented receives a fair trial. See Love v R (1983) 49 ALR 382 (HC).
[128] Where an indigent accused person charged with a serious offence who through no fault on his or her own part is unable to obtain legal representation applies to a trial judge for an adjournment or stay of proceedings, then in the absence of exceptional circumstances the trial should be adjourned, postponed or stayed until legal representation is available. See Dietrich v R (1992) 177 CLR 292; 109 ALR 385
[129] Dietrich is clear, Mason CJ and McHugh J at page 297 said “In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.”
[130] And at 304 “In Jago v Judges of the District Court of NSW Kirby P expressed the view that, where the inherited common law is uncertain, Australian judges may look to an international treaty which Australia has ratified as an aid to the explication and development of the common law. As a suggested example of this approach, the applicant points to the status accorded to the ECHR in English law. In common with the status of the ICCPR in Australian law, the ECHR is not part of English domestic law and thus rights contained in the ECHR cannot be enforced directly in English courts; furthermore, if domestic legislation conflicted with the ECHR, English courts would nevertheless be required to enforce the legislation. However, it is "well settled" that, in construing domestic legislation which is ambiguous, English courts will presume that Parliament intended to legislate in accordance with its international obligations. English courts may also have resort to international obligations in order to help resolve uncertainty or ambiguity in judge-made law.”
[131] “Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognized should now be taken to exist. Moreover, this branch of the applicant's argument assumes that Art. 14(3)(d) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to Art. 14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases . However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasizing the importance of the particular facts of the case to any interpretation of the phrase "when the interests of justice so require" . As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.”
[132] The Appellant Meyerhoff made a number of
applications
for the hearing to be adjourned, all ignored by Wallace SM. See the
following
exchange from the
[133] On
[134] From page 85 on
[135] MR THOMAS:
That’s the second day in a row that Mr
Meyerhoff hasn’t been ready. The case
has been closed since 1 November; he ought to prepare.
[136] HIS
WORSHIP: He ought to be? That’s right.
[137] MR MEYERHOFF:
Being harassed by the prosecution – I've got
so many charges – I've got six hearings.
[138] Now, to some people that may not seem out of the ordinary – 6 charges. Even less so if the Appellant Meyerhoff was represented by a lawyer, if that was the case it wouldn’t require much work from him. In the Appellants case however, we are forced to represent ourselves because legal aid refuses to represent us unless we plead guilty.
[139] Further to this Appellants were subject to ongoing harassment from NT Police before and more significantly, during the hearing – this is evident because:
[140] At one stage during the hearing, bail conditions prevented the Appellants Meyerhoff, Inder-Smith and Highway from associating with each-other or with our co-defendants. The Appellant Meyerhoff could not associate with the people he lived with outside the boundaries of the house. This was further complicated by the fact that at the time he had recently been in RDH with pneumonia and was still quite ill.
[141] These bail conditions arose from another attack by police on a NAPNT event less than 3 weeks before our hearing was due to commence.
[142] Police present in court – Bert Hofer (transcript 31st October 2002) page 19, Police recruit class in court (transcript 19th February 2003 page 13), Police present in court to hear us sentenced.
[143] Massive amount of politically motivated charges – I ask you to order a copy of my antecedence report to assist you in that regard.
[144] Tactics of intimidation – scaring people away from NAPNT demonstrations.
[145] The Appellant Highway gave evidence of NAPNT
protests
held prior to
[146] “We saw from that that the – the Northern Territory police state was determined that Network Against Prohibition was not allowed to have their say. We realised we were up against this police state and we – it was a fairly violent and intimidatory response. So, the only – our only defence was to get the – the superior numbers of the public on our side and to counter the – the violence of the police.” (Transcript 19/02/03pages 10 to 15)
[147] Wallace SM had already disregarded this as a reason to adjourn the matter:
[148] HIS WORSHIP:
If Mr Meyerhoff’s right, and if the smoke-ins and so on
continue, and if
the police go on behaving in the way he alleges they’ve behaved, then
chances
are there’s going to be even more charges laid against you of the
annoying,
pestering, harassing type that he’s complaining about.
So it hardly seems to me that that in that
sense the lapse of time is likely to make things easier for the
defendant.(Transcript
Appeal point 3 - The
politicization of the hearing was evident. Political bias
[149] The hostile media campaign (epitomized by Attorney General Peter Toyne's public remarks on the court case) made an unbiased jury trial seem unlikely to the Appellants.
[150] The Appellants were emotionally and physically exhausted by the government and Police campaign mounted against them. The Appellants were dealing with a statistically improbable number of other cases and legal matters at the time.
[151] The Appellants were subject to ongoing
harassment from
NT Police before and more significantly, during the hearing in the
[152] The hearing was politicised.
[153] It has always been the Appellants’ contention that evidence was tampered with and not made available to the Appellants as appropriate and that cross examination was prejudicial to the Appellants.
[154] The following quote taken from Hansard is
clear
evidence of the politicisation of the hearing. Debates - Ninth
Assembly, First
Session -
[155] From http://www.napnt.org/pages/Hansard-Spiel.htm
[156] Toyne: "We are pressing on with this, and we are actually encouraged by the invasion today. We are saying to those people, and it was good to look them straight in the eye and see the sort of people that we are bringing these laws in to counter the interests of. They can go somewhere else, the dealers can go somewhere else, we don't want to make it easier for them here."
[157] “Madam Speaker, let me put very clearly on the record, that disgraceful events like this morning's invasion of Parliament House will not deter this government from tackling the drug distribution, drug traffickers and drug dealers right across the Territory. So, I put drug dealers, drug traffickers, drug manufacturers - those who want to stand up, as we saw this morning, for those people who are doing this in our society - on notice, because we are not deterred. We, as a government, are not deterred from bringing in our very effective drug legislation into this sittings of parliament.”
[158] and, “We need to make very clear to those who are dealing drugs, those who are manufacturing, those who are trafficking in drugs in the Territory, that displays like the one we saw this morning will not deter this parliament, will not deter this government from getting tough on drugs and those who are dealing them.”
[159] On
[160] "I think people here in the
Northern Territory are getting heartily sick of Gary Meyerhoff and his
group
and their total disrespect for every institution that holds our
community
together whether it be the parliament or the procedure that they're now
entering in to”.
[161] The Denis Burke NAALAS fiasco gave us an important precedent here:
[162] Wilcox J said the following: “The principles concerned in contempt of
court cover several matters. One of these is the protection of
litigants from
improper pressure to abandon or discontinue claims or defences. The law
does
not countenance intimidation of litigants or their being subjected to
public
obloquy or abuse to defend their rights."
[163] According to the Readers Digest Great
Illustrated
Dictionary, Obloquy is defined as: “Abusively detractive language or
utterance;
condemnation.”
[164] Any
reasonable person listening to ABC radio on the 3rd of
October,
2002, would have heard Mr Toyne’s comments as condemnation of NAPNT,
regardless
of whether or not they use currently illicit drugs and/or support the
Network
Against Prohibition NT.
[165] On
there own these comments may escape prosecution for contempt of court,
but in
the context of hostile news reporting in the NT News, attacks from the
parliament under the protection of parliamentary privilege and the
relentless
harassment of NAP members and supporters by NT Police in 2002/3, they
can only
be seen as an attempt to set a framework for the upcoming hearing into
the
parliament invasion and other court cases faced by NAPNT members at the
time.
[166]
The Appellants have attempted to raise this matter during numerous
separate
matters at the Darwin Magistrate’s courts and my concerns and those of
my
fellow defendants have fallen on deaf ears. This can only further fuel
any
suspicions we have that we will never get a fair trial or hearing in
the
[167] In common with China, Croatia, Cuba, Egypt, El Salvador, Indonesia, Iran, and Iraq, Australia locks up dissenters who in the process of expressing their abhorrence of some action by the government and in adherence to their commitment to some higher law or to the values of their conscience violate a statute or are accused of a violation.
[168] From radicals and leftists, to anti-war and refugee rights activists, to civil rights and anti-racist fighters, to Trade Union activists -- and right-wing dissenters too-- the nation silences dissenters by trial and imprisonment and denies it is political.
[169] Just as
[170] From Henry David Thoreau's refusal to pay taxes to express his opposition to slavery and the Mexican War (defended in his essay "Civil Disobedience") to the protesters who shut down the San Francisco Bay Bridge to express their opposition to the Gulf War of 1991 (the protest defended upon the Nuremberg Principles and the First Amendment), citizens have refused to obey government rules or laws they believed unjust.
[171] During the Civil Rights and the anti-Vietnam War movements in the US, thousands of people were jailed for protesting leaders and laws considered profoundly contrary to truth and justice. These protesters defied authority and were consequently subjected to the force of the state in trials and imprisoning, which the state denies is political.
[172] The 1997 edition of Butterworth’s Concise Australian Legal Dictionary describes a political offence as “An offence directly and solely related to an organised, prolonged campaign involving a number of people to change government policy or to overthrow the domestic order of a state and its governmental authority.”
[173] Although Amnesty International originally recognized as "prisoners of conscience" only those who have not used or advocated violence, now they include everyone who has been denied trial within a reasonable time, when trial procedures do not conform to recognized international norms, when prison conditions are cruel, degrading, and inhuman, and all condemned to death. But as Australian history indicates, countless individuals throughout Australian history have been arrested in defence of their ideals, while the government has resolutely denied the category "political prisoner" or "prisoner of conscience," thereby preventing a political defence.
[174] It was obvious when questioning witnesses that Wallace SM would not allow the defendants to properly explore their defences of justification and provocation, or the political nature of their actions. The attitude of Magistrate Wallace seems at odds with our Federal Parliament who have obviously accepted that some offences will be political in nature.
[175] Section 13(1) of the Extradition (Foreign States) Act provides that a person is not liable to be surrendered to a foreign state "if the offence to which the requisition for his surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or if the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character".
[176] Denman J in Re Castioni [1891] 1 QB at 158 “that the court is not concerned with the wisdom of carrying out the relevant act in the advancement of that cause -- but that "the motive and purpose of the accused in committing the offence must be relevant and may be decisive". His Lordship went on to reject the necessity for open insurrection or for an intention to change the composition of the government:
[177] "An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee's party should have been trying to achieve power in the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it."
[178] Wallace SM and the Prosecutor seemed bound by a need to exonerate Superintendent Bert Hofer, who assaulted a defenceless female in parliament and the Appellant Meyerhoff.
[179] The Appellants absolutely refute all of Wallace SM’s comments to the assembled press (during sentencing) about this assault.
[180] The Appellants rely on the (Police doctored) video tape and the transcript to demonstrate why.
[181] The Court was used at times by the Prosecutor to help Police gain evidence in matters unrelated to the alleged offence for overtly political reasons.
[182] The video evidence was withheld and tampered with and was withheld from the Appellants until very late in the proceedings. This exhibit should never have been allowed by Wallace SM.
[183] Cross examination and evidential criteria were grossly prejudicial to the Defendants.
Appeal point 4 - The Appellants
do not believe the Constitution has been correctly interpreted in light
of Mabo
and other changes in Australia's social and legal framework since its
inception
[184] The Appellants maintain the contention that
the
Constitution has been correctly interpreted in light of Mabo and other
changes
in Australia's social and legal framework since its inception but wish
to add
nothing further to this appeal ground.
Appeal point 5 – The
Appellants believe a Parliament that presides over a racist and corrupt
state
has fewer rights under the Constitution than people who protest said
racism and
corruption
[185] Henry David Thoreau on the duty of civil
disobedience
(originally titled: Resistance to Civil Government - 1849):
[186] “Unjust laws exist: shall we be content to
obey them,
or shall we endeavor to amend them, and obey them until we have
succeeded, or
shall we transgress them at once? Men, generally, under such a
government as
this, think that they ought to wait until they have persuaded the
majority to
alter them. They think that, if they should resist, the remedy would be
worse
than the evil. But it is the fault of the government itself that the
remedy is
worse than the evil. It makes it worse. Why is it not more apt to
anticipate
and provide for reform? Why does it not cherish its wise minority? Why
does it
cry and resist before it is hurt? Why does it not encourage its
citizens to put
out its faults, and do better than it would have them? Why does it
always
crucify Christ and excommunicate Copernicus and Luther, and pronounce
Washington and Franklin rebels?”
Appeal point 6 - The
sentencing was manifestly excessive and ignored the circumstances of
the Appellants
[187] Namely the stressful political situation and economic disadvantages of the Appellants and their political motivation. This is the criminalisation of political protest.
[188] Wallace SM also failed to take into account the enormous amount of evidence revealing a campaign by NT government and Police to marginalize and destroy NAPNT (Network Against Prohibition NT).
[189] As the appeal against sentence in this matter has been separated from the appeal against conviction, we wish to make no further submissions on this appeal ground.
Appeal point 7 - Evidence
of 'selective prosecution' on political grounds
[190] The Appellants contend that there was
evidence of
selective prosecution on political grounds. Some examples being the
refusal of
Police to even investigate complaints made by the people assaulted in
Parliament on
[191] Attempts to bring NT Attorney General Peter Toyne's comments on the trial -- which the Appellants believe amount to Contempt of Court -- to the attention of the court have yet to meet with success.
Appeal point 8 - It
is the Appellants’ contention that Section 61 of the NT Criminal Code
breaches
our implied right to freedom of speech and access to government as
implied in
the Australian Constitution
[192] Chief Justice Murray Gleeson said in his year 2000 Boyer Lecture The Rule of Law and the Constitution:
[193] “One of the ways in which the law seeks to
promote
justice and individual liberty is in its function as a restraint upon
the
exercise of power, whether the power in question is that of individuals
or
corporations, or whether the power in question is that of other
individuals or
corporations, or whether it is the power of governments. Many Acts of
Parliament, and many rules of judge-made law, limit the capacity of
corporations, or individuals, or bureaucracies, to do what they will.
The basic
law of
[194] One of the first records of ‘freedom of
speech’ can be
found in the Statutes of Wiślica" introduced in 1347 by
Casimir_III_of_Poland.
These statutes codified freedom of speech in medieval
[195] The philosopher Alexis de Tocqueville observed that people may be hesitant to speak freely not because of fear of government retribution but because of social pressures. When an individual announces an unpopular opinion, he or she may face the disdain of their community or even be subjected to violent reactions. While this type of suppression of speech is even more difficult to prevent than government suppression, there are questions about whether it truly falls within the ambit of freedom of speech, which is typically regarded as a civil liberty, or freedom from government action.
[196] There are a number of differing theories of free speech.
[197] One theory is that freedom of speech is crucial in any democracy, because open discussions of candidates are essential for voters to make informed decisions during elections. It is through speech that people can influence their government's choice of policies. Also, public officials are held accountable through criticisms that can pave the way for their replacement. The US Supreme Court has spoken of the ability to criticize government and government officials as "the central meaning of the First Amendment." New York Times v. Sullivan. But "guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government." See Time, Inc. v. Hill.
[198] Some suggest that when citizens refrain from voicing their discontent because they fear retribution, the government can no longer be responsive to them, thus it is less accountable for its actions. Defenders of free speech often allege that this is the main reason why governments suppress free speech--to avoid accountability.
[199] Alternatively, it may be argued that some
restrictions
on freedom of speech may be compatible with democracy or necessary to
protect
it. For example, such arguments are used to justify restrictions on
support of
Nazi ideas in post-war
[200] A classic argument for protecting freedom of
speech as
a fundamental right is that it is essential for the discovery of truth.
Justice
Oliver Wendell Holmes wrote that "the best test of truth is the power
of
the thought to get itself accepted in the competition of the market,
and that
truth is the only ground upon which their wishes safely can be carried
out." See Abrams v.
[201] This marketplace of ideas rationale for freedom of speech has been criticized by scholars on the grounds that it is wrong to assume all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources.
[202] The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur in the interim. However, even if these weaknesses of the marketplace of ideas are acknowledged, supporters argue that the alternative of government determination of truth and censorship of falsehoods is worse.
[203] Another rationale is that it is an essential aspect of personhood and autonomy. Professor Baker said that "to engage voluntarily in a speech act is to engage in self-definition or expression. A Vietnam war protester may explain that when she chants 'Stop This War Now' at a demonstration, she does so without any expectation that her speech will affect continuance of the war ... rather, she participates and chants in order to define herself publicly in opposition to the war. This war protester provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self-fulfillment or self-realization." This view suggests a rationale for the protection of acts of expression that are not obviously political or vital to self-government, such as abstract art, music, or dance.
[204] Protecting speech because it aids the political process or furthers the search for truth emphasizes the instrumental values of expression. Justice Thurgood Marshall wrote that "the First Amendment serves not only the needs of the polity but also those of the human spirit -- a spirit that demands self-expression." (Procunier v. Martinez, 416 U.S. 396, 1974).
[205] Critics of this view argue that there is no inherent reason to find speech to be a fundamental right compared with countless other activities that might be regarded as a part of autonomy or that could advance self-fulfillment.
[206] Another explanation is that it is integral to tolerance, which some people feel should be a basic value in society. Professor Lee Bollinger is an advocate of this view and argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." The free speech principle is left with the concern of nothing less than helping to shape "the intellectual character of the society."
[207] This claim is to say that tolerance is a desirable, if not essential, value, and that protecting unpopular speech is itself an act of tolerance. Such tolerance serves as a model that encourages more tolerance throughout society. Critics argue that society need not be tolerant of the intolerance of others, such as those who advocate great harm, even genocide. Preventing such harms is claimed to be much more important than being tolerant of those who argue for them.
[208] In democratic countries, freedom of speech is taken for granted, though the exact degree of freedom varies between countries and jurisdictions. This freedom generally includes:
[209] the right to criticize the political system and political leaders, including those in power;
[210] the right to criticize public and corporate policies;
[211] the right to criticize religious and political ideas.
[212] Still, in no country is freedom of speech absolute. Limits include, for instance, the prohibition of libel and slander (or defamation) – that is, publishing or saying things that are detrimental to one person in an "unfair" way, though, again, the exact limits of what is prosecutable vary. Some democratic countries prohibit so-called "hate speech" – speech that is intended to stir up aggression against certain groups for religious, racial, etc. reasons.
[213] The majority of African constitutions
provide legal
protection for freedom of speech. However, these rights are exercised
inconsistently in practice. The replacement of authoritarian regimes in
[214] Freedom of speech is increasing in
oil-producing
countries (such as
[215] Several
[216] The Indian constitution guarantees freedom
of speech
to every citizen and there have been landmark cases in the Indian
Supreme Court
that have affirmed the nation's policy of allowing free press and
freedom of
expression to every citizen. In
[217] Article 19 of the Indian constitution states:
[218] All citizens shall have the right
[219] (a) to freedom of speech and expression;
[220] (b) to assemble peaceably and without arms;
[221] (c) to form associations or unions;
[222] In
[223] The free communication of thoughts and of
opinions is
one of the most precious rights of man: any citizen thus may speak,
write,
print freely, save [if it is necessary] to respond to the abuse of this
liberty, in the cases determined by the law.
[224] In addition,
[225] Freedom of speech is protected by Article
40.6.1 of
the Irish constitution. However the article qualifies this right,
providing
that it may not be used to undermine "public order or morality or the
authority of the State". Furthermore, the constitution explicitly
requires
that the publication of "blasphemous, seditious, or indecent matter"
be a criminal offence. Under the European Convention On Human Rights
Act, 2003,
all of the rights afforded by the European Convention form an integral
part of
the
[226] It can be readily accepted that freedom of speech and expression is fundamental to democratic society. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. (Retail, Wholesale & Department Store Union, Local 580 et al v. Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 at 183 per McIntyre J.)
As was said by Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd [1974] AC 273 at 320:
[227] “The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves’s.”
[228] Although in many democratic societies the freedom enjoys constitutional protection the freedom is not absolute. Bingham LJ in the Court of Appeal in Attorney-General v. Guardian Newspapers Ltd (No. 2) 1990 1 AC 109 at 214 quoted the following words of the distinguished American author, Archibald Cox:
[229] “Freedom of expression, despite its primacy, can never be absolute. .... At any time unrestrained expression may conflict with important public or private interests .... Some balancing is inescapable. The ultimate question is always, Where has - and should - the balance be struck?” (Freedom of Expression (1981) p.4)
[230] Even John Stuart Mill in his famous essay On
[231] In section 1 of the Canadian Charter of Rights and Freedoms the freedom of expression guaranteed by section 2(b) of the Charter is subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
[232] Article 10(2) of the European Convention on Human Rights provides that the freedom of expression guaranteed by article 10(1) may "...be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
[233] Article 19(3) of the International Covenant on Civil and Political Rights ("ICCPR") also provides that the right to freedom of expression may be subject to such restrictions as are provided by law and are necessary:
[234] (a) For respect of the rights or reputations of others; and (b) For the protection of national security or of public order (ordre public), or of public health or morals.
[235] The freedom enjoys its widest protection
under the
First Amendment to the Constitution of the
The freedom as set out in Article 10 of the European Convention has been recognised as consistent with the common law. In Attorney-General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 283-4 Lord Goff of Chieveley said:
[236] “Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”
[237] Unlike most other nations that legally
protect freedom
of speech,
Appeal point 9 - It
is the Appellants’ contention that the “War on Drugs” and subsequent
“tough on
drugs” and zero tolerance legislation are illegal and breach
international law
[238] The Appellants want to point out to the court from the outset that they are among the growing numbers of Australians who believe that democracy in this country has gone down the tubes.
[239] As Dr Jo Toscano has said in the Anarchist
Age Weekly Review:
“When the Federal government introduces
legislation into Federal Parliament next week that allows Federal and
State
authorities to arbitrarily arrest, detain, interrogate and imprison its
citizens, it will unilaterally tear up a contract written in blood that
exists
that protects the individual from the ideological capriciousness of the
government of the day. Over the centuries, individuals, groups and
political
and social movements around the world have been involved in struggles
against
their rulers that, through the ultimate sacrifices made by millions of
ordinary
human beings, have won Australians the rights and freedoms we enjoy
today and
that we are so rightly proud of.”
[240] He went on to say: “No
government has the moral authority to unilaterally remove the rights
and
liberties, checks and balances that currently exist, that protect the
individual from the excesses of the State. Any government that does so,
betrays
the trust of the people it represents and governs and runs the very
real risk
of increasing the alienation that is being felt by an increasing number
of
Australians who believe that the democratic process is much more than
the
almost meaningless act of casting a ballot every 3 years to give a
politician a
signed blank cheque to do whatever they like for the next 3 years.”
[241] It is the Appellants’ position that Hitler and Mussolini’s brand of fascism did not suit their corporate masters. The corporations have worked with the governments of the United Kingdom, the United States and Australia to implement a new brand of fascism which ensures the continued domination of the world by corporations, our new world leaders.
[242] According to the 1984 edition of the Reader’s Digest Great Illustrated Dictionary, fascism is: “A philosophy or system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with an ideology of belligerent nationalism.”
[243] The Appellants are of the sincere belief
that this is
the form of government that we currently have in John Howard’s
[244] For members of NAPNT, including the
Appellants, the
damage caused by this corporate leadership is obvious. One symptom of
this
corporate leadership is the “war on drugs”. As has been said by one
NAPNT
member: “there can be no war on drugs and
no war on terror, only war on people.” It is the Appellants’
contention
that the war on drugs is motivated by greed and fuelled by racism.
[245] Even though the war on drugs cannot be won,
royalties
flow to the corporations to pay for the pharmaceutical drugs to poison
drug
users and the Round Up used to poison Colombian coca crops (in anti-US
areas).
The royalties pay for the helicopters and weapons for the Thai and
Colombian
Governments and the incarceration of the hundreds of thousands of
people around
the world in the private prison system as a result of the war on drugs.
[246] The war on drugs is not motivated by
honourable
intentions and it is analogous with the
[247] Ironically, American helicopters are still
being used
in
[248] The Australian Government is complicit in the War on Drugs. In 1998, representatives of the Australian Government signed UN protocols promising to eradicate all illicit drug use by 2008.
[249] The United Nations met between June 8 to 10,
1998 in a
special session to develop a worldwide drug control strategy based on
the
failed model of the US Drug War. The UN is even mimicking the absurd
rhetoric
of the
[250] The Appellants refer your honours to the
page at the
following web address, www.drugsense.org/ungass.htm
[251] It is the opinion of the Appellants that anyone who subscribes to the view that a drug-free world is possible is either seriously deluded or a plain lunatic.
[252] The Appellants started fighting the war on drugs in the NT, by targeting the ‘drug house’ legislation, and by extension, that battle now encompasses free speech. The Appellants will continue the struggle and try to mobilise their brothers and sisters. If every person who uses illicit drugs got out on the streets tomorrow and demanded an end to drug prohibition, it would be stopped and the perpetrators would be made to answer for their actions. The stigma and discrimination associated with substance use prevents most people who use drugs from standing up and being counted. The threat of incarceration or losing your children or your home just because you are a drug user is very real and that is where people must ask themselves how far they are prepared to go to protect their rights.
[253] The media is an entirely different proposition. Suffice to say, the War on Drugs is killing our children, and if that's not news-worthy, we are doomed.
[254] Adolf Hitler once said: "How fortunate for governments that the people they administer don't think."
[255] This statement is even more telling when our news is limited and we are only told what governments and corporations want us to know.
[256] It is for these reasons, to prevent what
they saw as
unlawful acts on so many levels, that the Appellants took the action
they did
on May 14, 2002.
[257] The War On Drugs Is a Declared
War. We refer to drug law violators in political terms because
the
political nature of the war on drugs is readily apparent. We believe
that
prisoners of the drug war are actually prisoners of war, and that this
war has
been declared. The drug war has never been a metaphor. Read a quote
from Dan
Baum's book Smoke and Mirrors, it illustrates our point very well:
[258] "A full 83 percent of Americans polled in a 1987 opinion poll approved of reporting drug using family members to the police. It was in this atmosphere that the U.S. Supreme Court decided that drug defendants "even nonviolent ones" are inherently dangerous and can be denied their Eighth Amendment right of reasonable bail.
[259] 'We have repeatedly held that the government's regulatory interest can, in appropriate circumstances, outweigh an individual's liberty interest,' the Court ruled. 'For example, in times of war or insurrection...the government may detain individuals whom the government deems to be dangerous.' Thus was the War On Drugs anointed a real war by the Supreme Court."
[260] In
[261] We further state our point by showing that this over-broad
definition
has been applied to Australian citizens before. Italian and German
Australians
were deemed dangerous to the government during World War II and held in
detention camps "isolated from society" losing jobs, homes,
possessions and loved-ones. The same horror is being carried out
against Australian
citizens again.
[262] At least 3 people are arrested every minute for
[263]“Human rights are not exclusive to any particular society or
group of
individuals, and they are as relevant to people living in
[264] “Human rights are an inextricable part of our lives. In fact,
they are
so much a part of every day living that we often take for granted the
protection they offer us. Consider, for example, how often you drink
clean
water; eat food; go to school or university; say or write what you
think;
practice a religion (or not); vote for a political party; demand
privacy, and
expect to be treated fairly by others. All of these everyday activities
depend
on the adequate protection of your human rights as well as those of
your
neighbour. Where the protection is inadequate or missing altogether
your human
rights suffer.”
[265] “The fundamental importance of human rights is such that we
cannot
afford to neglect them. And to be sure that we do not neglect them, we
all must
know more about them.”
[266] This isn’t Gary Meyerhoff, Robert Inder-Smith or Stuart Highway talking, this is the introduction to the Australian Human Rights and Equal Opportunities Commission document “Human Rights Explained: A guide to Human Rights in Australia in a global context.” The Appellants couldn’t agree more with this staement, we cannot neglect human rights and we feel that it is our duty to highlight any breaches of human rights in our own back yard, and to be aware of human rights breaches that are happening around the globe and being part of the global movement against these human rights breaches.
[267] In regards to the NT ‘drug house’ legislation, the target of the May 14, 2002 protest, the Appellants argue that the legislation is unlawful for a number of reasons.
[268] It (the ‘drug house laws’) fails to
recognise a demand
for illicit drugs. The fundamental flaw of this legislation is that it
fails to
accept that people in the
[269] It only targets the dealers at the lower end
of the
spectrum. It seems that the legislation will target suburban “dealers”
who
happen to be low-income people, the majority of whom are drug users
themselves,
struggling to survive like everyone else. These people are the target
of the
drug house legislation and not the kingpins of the drug trade.
Although, if the
NSW drug squad is any example, the drug house legislation should most
definitely target the staff room of the police service’s drug
squad.
[270] It goes against the Federal Government
policy of harm
minimisation. The Australian Federal Government support the policy of
harm
minimisation but the NT Governments proposed drug house laws will serve
only to
maximise harm as they force drug users further into the black market
and
contribute to the maintenance of a climate of fear around certain
substances.
[271] It will demonise drug users and force drug
users
further underground. The drug house legislation will target specific
houses and
venues such as nightclubs. While the drug trade in
[272] Criminalising drug use is not the answer. The War on Drugs, as it is called, has forced the criminalisation of some substances for over 5 decades; surely we should have won the war by now. Over and over again we see governments running with the “Tough on Drugs” approach that has really been an abject failure. Simply criminalising drug use and building more and more prisons is not the answer to problematic drug use. We need to see a massive increase in the range of options open to dependent users, including more pharmacotherapies (in particular heroin), improved detoxification and rehabilitation services, diversified needle and syringe programs, reality based education for our young people and the community. An important myth that needs to be smashed is the myth that dependent drug users are inadequate members of society.
[273] It will discriminate against young people and indigenous people. Although the government is arguing that this legislation is part of a crackdown on drug dealing and distribution, they fail to recognise that young people and members of the indigenous community will occupy most of the houses they will target. There is ample evidence that zero tolerance policing is overwhelmingly directed at the least powerful and most vulnerable groups in society. This kind of intervention will impact in a particularly negative way on young people, the unemployed and the indigenous community. It will increase the already high level of street-based contact between the police and these groups of people.
[274] It massively increases police powers. Just
like the
juvenile diversion and illicit drug diversion initiatives that have
been
condemned by social justice activists and organisations like the Top
End Users’
Forum, the proposed drug house legislation will dramatically increase
police
powers. By allowing police to have houses declared “drug houses”, they
will be
able to attend the premises, enter and search without a warrant. In
NSW, the
drug house legislation allows a person to be charged with “being at a
drug
house”, even if there are no drugs present. This is a gross violation
of human
rights.
[275] It is a massive waste of taxpayers money.
The
[276] The NT Labor Government isn’t increasing treatment options at the same time. If the Labor Government was really committed to improving the health and well-being of users of illicit substances, they would implement a range of positive strategies, rather than implementing punitive legislation such as the "drug house" laws. Treatment options for dependent users could be massively increased, a heroin trial could be looked at, a safe injecting room opened, needle exchange options increased, but instead, Labor wants to double the size of the drug squad and give them a new law to play with.
[277] The legislation fails to address the real issues behind problematic substance use. Massive unemployment, family conflict, financial and work stress, prohibition: these are some of the reasons behind problematic drug use and these issues are not being effectively addressed by our society. Problematic drug use is a symptom of a whole wide range of societal ills that can only really be addressed by structural change. Blaming certain substances for societal ills is a favourite tactic of Australian and other Western Governments.
[278] The War on Drugs is insane, immoral and dangerous. The “War on Drugs” and subsequent “tough on drugs” and zero tolerance approaches are illegal and breach international law.
[279] To quote Ronald Reagan: “Government exists to protect us from each other. Where govern