Brown v Australian Bureau of Statistics

[2018] SASC 66

Supreme Court of South Australia

(Magistrates Appeals: Civil)

BROWN v AUSTRALIAN BUREAU OF STATISTICS

[2018] SASC 66

Judgment of The Honourable Chief Justice Kourakis (ex tempore)

17 April 2018

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING

Appeal against an ex parte conviction by a Magistrate of the Adelaide Magistrates Court on 12 January 2018 of five summary offences contrary to s 14(1) of the Census and Statistics Act 1905 (Cth).

Held, per Kourakis CJ:

1. Appeal dismissed.

Census and Statistics Act 1995 (Cth) s 10(4), s 14(1), s 17; Summary Procedure Act 1921 (SA) s 62, referred to.

BROWN v AUSTRALIAN BUREAU OF STATISTICS
[2018] SASC 66

Magistrates Appeals: Civil

1. Kourakis CJ (ex tempore):            On 12 January 2018 a Magistrate proceeded to hear a complaint that the appellant, Mr Tyson James Brown, had committed five offences contrary to s 14(1) of the Census and Statistics Act 1905 (Cth) (the Census Act). The Magistrate proceeded ex parte[1] on the production by the prosecutor, then appearing, of a Certificate of proof of service that Mr Brown had been served at the Woodcroft Hotel car park on 3 January 2018 between 9 p.m. and 10 p.m.  Mr Brown has confirmed today that the summons was served on him.  He accepts that the time for the appearance before the Magistrate was set as 10 a.m.  He explains that because he was busy he misread the time and thought that he had to appear at 2 p.m.  Mr Brown tells me that he attended at that time and was told that the matter had been dealt with.  It appears that either because he was out of time, or as a result of some misunderstanding, he did not bring an application in the Magistrates Court to set aside the conviction.  Instead, Mr Brown filed a notice of appeal in this court on 1 February 2018.

   [1]    Pursuant to s 62 of the Summary Procedure Act 1921 (SA)

2. The Magistrate proceeded on a factual summary which included the following statements of fact:

   ·A census was taken on 9 August 2016 pursuant to the Census Act.

   ·On 4 September 2016 a collector, Ms Nikki Fort, attended Mr Brown's address in Eden Hills.  Mr Brown did not provide a completed census form.  Instead, he informed the collector that he was prepared to fill out the form if he was paid and produced on the spot an invoice for 30 minutes of his time for the sum of $50.  Mr Brown accepts that an exchange to that effect took place.

3. Mr Brown tells me that he made it quite clear that he was happy to comply if the basis on which he was obliged to pay was explained to him.  It was Mr Brown's view on his understanding of the law arising essentially from the businesses he has conducted that a contractual relationship was necessary.  Of course, there was no contractual relationship between him and the Australian Bureau of Statistics.

4. The statement of facts continues that Ms Fort left the premises of Mr Brown, leaving a mail back envelope.  Mr Brown tells me that that was not so.

5. The facts continue that on 29 September 2016 a refusal letter was sent to Mr Brown's home.  Mr Brown tells me that he did not receive any such letter.

6. It was alleged that on 16 January 2017 a notice was issued under the power conferred by s 17 of the Census Act issuing a notice of direction to Mr Brown pursuant to s 10(4) of the same Act to return a completed census.

7. The statement of facts then allege that Mr Brown was served with the notice by a process server, Mr Harold Klavins, on 22 January 2017 at his residence in Eden Hills.  Mr Brown tells me that he was not served.

8. Effectively, the offences then relate to a continuing failure in the ensuing months to fill out the census.

9. I explained to Mr Brown that given the confusion in the time for appearance, if he wished to challenge and contest the charges on the basis that he was not served with the notice of direction by Mr Klavins I might, subject to hearing from Ms Simpson, set aside the convictions and remit the matter.  I explained to Mr Brown the time and cost that would be involved in that procedure.  Mr Brown has elected not to appeal on that ground but maintains his challenge to the convictions on the ground of the invalidity of the provisions of the Census Act in requiring him to fill out the forms. Again, Mr Brown relies essentially, or makes the submission, that in his view, a contractual obligation is necessary for him to incur the time, spend the time and incur the associated cost in filling out the form.

10. Mr Brown contends that the failure to fill out the form should not be seen as the equivalent of other regulatory offences like speeding or filling out immigration forms. Unlike offences of that kind, Mr Brown makes the point that there is no risk of harm caused to anyone else in failing to fill out a form. However, the purpose of the census is to inform government policy and economic decision making which ideally would advance the welfare of all members of the Australian community.  It is for that reason, or that is the policy reason, for the making of the law.

11. Be that as it may, it is really of no consequence.  The position under Australian constitutional law, being that the Commonwealth can make such laws as it sees fit, includes the creation of offences within the particular areas of legislative authority given to it by the Australian Constitution.  Those laws are properly made after they are passed through both houses of parliament and given assent by the Governor-General, the regularity of which this Court presumes.

12. Accordingly, and for those reasons, I dismiss the appeal.  Mr Brown has been anxious to make the point that he brings this appeal with the best of intentions as a man of honour, essentially asserting the rights which he says that free and independent persons in a liberal democratic State like Australia should have. The sentiment is understandable but the law dictates otherwise.