Voting Privately

This month I (along with many other lawyers) received a letter from a gentleman in WA seeking pro-bono assistance to take his case to the High Court. This particular gentleman’s “beef” is that the voting compartments used at federal elections provide insufficient privacy and don’t comply with sections 206 and 233 of the Commonwealth Electoral Act. As a result he has, on several occasions refused to vote, been fined and then sought to appeal the fine in court. His most recent excursion into the courts is recorded in Horn v Australian Electoral Commission [2013] WASC 72. It is clear that judicial patience is being tested, although the judgment starts politely with:

“[1] Mr Dieter Horn, the appellant in this case, could never be accused of lacking consistency.  He has, over many years, tenaciously maintained the view that the polling booths provided at Federal elections do not comply with the Commonwealth Electoral Act 1918 (Cth)……[He] has adhered to his views about the polling booths despite adverse decisions of the Federal Court and this court.  He doggedly maintains he is right and the courts are wrong.”

There is then at [10] an extract from the 2010 Court of Appeal decision in Horn v Butcher (in which he tendered 3 voting compartments) where it was found that: “The appellant’s wrong view of the law affords no valid reason for not voting.  The appellant’s view about the statutory provisions is unsound, not well-founded, has no force, weight or cogency, lacks authority and is not sustainable in law.  In effect, the appellant makes ‘open challenge to the very essence of the enactment’ which Isaacs J in Judd said was not a valid reason“.

The judgment concludes with [42]-[43]: “…persistence in raising a legal argument that has been previously raised and ruled upon could constitute an abuse of process.  In my view that point has been reached.  

A stubborn refusal to accept the lawful judgment of the courts cannot be excused on the grounds of fidelity to one’s values.  Too much time and effort has been spent on an issue which has long ago been determined.  It is well nigh time that Mr Horn accepted the judgment of those whose job it is to judge“.

I think I will give the pro-bono High Court matter a miss…

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Dictation Test

The dictation test was a long standing device to exclude unwanted immigrants from Australia.  If you failed the test (which could be given in any European language) then you became a “prohibited immigrant” and were subject to deportation.

In 1934, the government of the day was attempting to exclude Egon Kisch (an activist on a world wide anti-Hitler campaign) from Australian and he was requested to do the test. Unfortunately, Mr Kisch was fluent in so many European languages that the immigration officer resorted to administering the test in Scottish Gaelic. It became apparent in the subsequent High Court case (R v Wilson; Ex parte Kisch (1934) 52 CLR 234) that the immigration officer himself was not familiar with Scottish Gaelic. His translation of “lead us not into temptation but deliver us from evil” became  ”as well as we could benefit and if we let her scatter free to the bad”.

Mr Kisch successfully obtained a declaration that the decision to deport him was unlawful on the basis that Scottish Gaelic was not a European language for the purpose of the legislation but was only a rarely used dialect. The decision caused an uproar in the Australian Scottish Community who were (rightfully) incensed at the downgrading of their language to “dialect”. The popular press apparently ran hot over the issue.

This story is told more fully in Crock and Berg “Immigration, Refugees and Forced Migration“, Federation Press 2011 and for the supersized version see: Zogbaum “Kisch in Australia: The Untold Story” Melbourne: Scribe 2004.

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Same old

We all know that immigration is a highly political topic. However, did you know that it always has been? Legislation dealing with immigration was amongst one of the first acts passed by the new federal parliament in 1901.  Section 3 of the Immigration Restriction Act (no 17 of 1901) prohibited the immigration into the Commonwealth of the following:

(a) Any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer; [the foundation of the white Australia policy, now replaced with an english proficiency requirement for many visas]

(b) any person likely in the opinion of the Minister or of an officer to become a charge upon the public or upon any public or charitable institution; [still a consideration in some circumstances]

(c) any idiot or insane person ;
(d) any person suffering from an infectious or contagious disease of a loathsome or dangerous character ; [there is still a health requirement on all permanent visas]

(e) any person who has within three years been convicted of an offence, not being a mere political offence, and has been sentenced to imprisonment for one year or longer therefor and has not received a pardon; [there is still a character requirement on most visas]

(f) any prostitute or person living on the prostitution of others;

(g) any persons under a contract or agreement to perform manual labour within the Commonwealth: Provided that this paragraph shall not apply to workmen exempted by the Minister for special skill required in Australia or to persons under contract or agreement to serve as part of the crew of a vessel engaged in the coasting trade in Australian waters if the rates of wages specified therein are not lower than the rates ruling in the Commonwealth [protection of the labour market is still government policy].

I am honestly surprised how little policy has changed in 112 years – more of the same old….

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The Coincidence

In 1838 Edgar Allan Poe’s only full length novel, “The Narrative of Arthur Gordon Pym of Nantucket”¹ was published. The novel was not a commercial, or literary success.

Poe’s novel is a seafaring tale about Arthur Gordon Pym who was a stowaway on a whaling ship called the Grampus. After a number of misadventures including a mutiny after which a number of crew were cast adrift on a small boat “Bounty -style”, three of the sailors, manage to retake control of the ship. They spare the life of one of the mutineers to help them run the ship. However further bad luck ensues when a storm hits and the mast is broken and the hold is flooded. The foursome find themselves adrift without provisions and facing death by starvation and thirst.

Ultimately with no land in sight and no rescue appearing likely, they decide to resort to cannibalism and draw straws to decide who will be killed.

Now if you’re reading this article and thinking that this story sounds familiar, it is because every law student knows the (in)famous necessity case: R v Dudley and Stephens (1884) 14 QBD 273². The facts of that case commenced on 19 May 1884 when the yacht Mignonette³ set sail from Southampton bound for Australia⁴. On 5 July the four member crew were cast adrift in a lifeboat some 1600 miles from the Cape of Good Hope when the yacht sank after being damaged by a wave. After 21 days with no food or water, Dudley (with the agreement of Stephens) killed the cabin boy (being the youngest and weakest) for food. They were rescued four days later. Dudley’s diary in a masterstroke of understatement records the rescue occurred “as we was having our breakfast we will call it”⁵. On return to England, Dudley and Stephens were tried for murder, found guilty and sentenced to death. The sentence was not carried out and they were pardoned on the basis that they serve a prison term of six months. To escape the notoriety, Dudley migrated to Australia in 1885⁶.

While the case seems to be an eerie example of life imitating fiction, an even more remarkable aspect of these stories is that the name of the fictional crew member who drew the short straw in Poe’s novel and the name of the real life cabin boy (murdered 46 years later) in Dudley and Stephens was both Richard Parker!

This story was apparently the inspiration for Lon Fuller’s “The Case of the Speluncean Explorers”⁷ and also for a Monty Python sketch⁸. In an interesting reverse twist, Yann Martel’s Booker Prize winning novel “Life of Pi” is about an Indian boy, Pi Patel who is stranded on a life boat with a fully grown bengal tiger for 227 days after the cargo ship transporting his family’s zoo sinks. The tiger’s name? – you guessed it – Richard Parker.

1Available as ebook: http://ebooks.adelaide.edu.au/p/poe/edgar_allan/p74a/index.html (see Ch 12)

2The case is referred to in the speech given by NSW Chief Justice Bathurst at admission ceremonies (at [10]): http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwFiles/Bathurst2012.pdf/$file/Bathurst2012.pdf

3The Mignonette was a 15.8m cruiser. Jessica Watson’s Pink Lady was 10.2m.

4The yacht had been purchased by John Henry Want who became Attorney General of New South Wales in 1885

5New York Times book review of Neil Hanson’s “The Custom of the Sea”, 16 April 2000 at http://www.nytimes.com/books/00/04/16/reviews/000416.16rawsont.html

6Later life did not go well for Thomas Dudley who became the first person in Australasia to die from the bubonic plague in 1900. He is buried at the North Head Quarantine Station in Sydney.

7Lon L Fuller (1949) 62 Harvard Law Review 616-645

8Monty Python’s Flying Circus, Episode 26 – Lifeboat (Cannibalism) sketch

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The Driving Test

I have recently endured (survived?) 120 hours of “L plate” driving with my teenage daughter who (remarkably) passed her driving test at first attempt.

In NSW the driving test is booked online and you receive an automated email response from the Road and Traffic Authority which sets out the requirements for the big day. I don’t have a problem with some of those matters (e.g. applicant must supply an appropriate test vehicle for the class of licence for which they are being tested, the L plates must be displayed and the vehicle must not be defective). However, it is also a requirement that the vehicle not be:

1. an armoured security vehicle;
2. a vehicle that carries dangerous goods;
3. a federal interstate registered vehicle;
4. a vehicle with trade plates attached;
5. a vehicle carrying livestock [obviously a big problem in rural areas];
6. a bus carrying passengers;
7. a vehicle without a reverse gear (except a motorcycle); or
8. any heavy vehicle fitted with dual accelerator or a dual sterring wheel (i.e. road sweepers, garbage trucks, etc).

I am having trouble getting images of armoured cars or garbage trucks with L plates out of my mind….

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The Prince

Before it was subsumed into national legislation, the Business Names Act (NSW) (or at least a ministerial order pursuant to it) prohibited registration of business names that erroneously suggested “connection with a royal family” or “royal patronage”. HRH Prince Alan Djamirze (of Castle Hill, NSW) was not happy with the decision to refuse registration of his name as a business name and sought a review of the decision in the ADT (see Djamirze v Director General,  [2012] NSWADT 17).

HRH asserted that he was a Circassian Prince and gave evidence of his family history and provided a family record of the Circassian Royal House of Dja Mirze. He contended that “Djamirze” has a meaning comparable to “Prince of the blood royal”. He submitted (at [17]):

“The title “Mirze/Mirza” is only for those who belong to Royal clans. Title of HRH Prince Alan Djamirze is not a “created” title; it is a social hereditary title, which cannot be established by peerage patents as is not the cultural practice of the Circassians. The Circassians had no kings and Sovereigns of Circassia were the Princes. HRH Prince Alan Djamirze is a prince of Circassia. The social rank is a part of the monarch’s name, as is the case of HRH Prince Alan Djamirze, “Dja-Mirze” Dja being the geographical distinction of the prince and Mirze pronounced “MIRZA” the title signifying prince of the blood royal the only hereditary title in Islamic nations …”

and the decision continued:

[18] His evidence is that he, along with large numbers of Circassians, lives in exile. His family has sought refuge in Australia because of communist oppression that caused many deaths of Caucasian nobles at the hands of the communists including many members of the Djamirze clan have been assassinated or sent to Siberian labour camps. He stated that he is reluctant to approach the Ukrainian government for documentary evidence to support his asserted royal lineage. [I am sure that is the real reason] However, he relies on a number of documents for that purpose.

According to a report in the Sydney Morning Herald on 13 February 2012, Circassia ceased to exist in 1864 when it was taken over by the Russians. Also according to the SMH, Prince Djamirze’s father at one stage entered a $4b deal (with Alan Bond) to buy a cache of violins and several kilograms of osmium-187, a weapons-grade radioactive isotope used in the manufacture of stealth bombers. Hmmm.

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I like you because…

Judges often have the difficult task of deciding which witness’s version of events is more credible. It appears that his Honour Justice Pembroke was not troubled by that difficulty in The Old Kiama Wharf Company v Betohuwisa [2011] NSWSC 823. His Honour starts off mildly enough saying at [20]:

“It is apparent from what I have already said that I have formed an adverse view of Warwick Colbron’s credibility.

Rather than leaving it at that, his Honour continued:

‘…In many other respects, his evidence was unsatisfactory and contrary to the probabilities. Repeatedly he denied the obvious. Consistently he asserted the improbable. …. His attempt to explain why the transfer of assets from OKW to Betohuwisa was “commercial” was unsatisfactory. That is because there could be no satisfactory explanation. The transaction was, in my view, indefensible….

[21] …..It may be that Warwick Colbron had convinced himself of the rightness of his position through constant consideration, reconstruction and re-affirmation. That I think would be a charitable view. It is not the view that I have reached.”

There’s more if you want to have a look at the judgment. I can only assume that the transcript would be a good read.

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