Luchich, <<
Form 1 Notice of a constitutional matter? <<
(rule 5.01.3)
IN THE HIGH COURT OF AUSTRALIA …………………………. No………………….. of 2005
Adelaide REGISTRY
BETWEEN: Susan Luchich
Plaintiff
and
The State of South Australia.
Defendant
NOTICE OF A CONSTITUTIONAL MATTER
1. The Plaintiff gives notice that this proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903.
1.1 This proceeding is before the Local Court of South Australia, sitting at Berri and is identified by the matter numbers 05/R04107 & 05/R36479.
1.2 The Plaintiff in this matter has been charged by members of the South Australian Police Force with various driving offences the principle charge of which is driving an unregistered vehicle.
1.3 The Plaintiff admits to the fact of driving a vehicle whilst it was not registered with Transport SA.
1.4 The Defendant demurs to the facts but states that the legal consequences of those facts do not require her to proceed further in the matter.
1.5 The Defendant claims that at the time when the charges were laid against her that she was engaged in a political protest regarding issues surrounding vehicle registration and driver licences.
1.6 Notwithstanding her protests the Plaintiff adopted best practice standards regarding vehicle registration that are codified in the statutes of the various states. She ensured that before she commenced her protest that her vehicle was road worthy and that it was insured.
1.7 The organising body for the political protest witnessed that the standards as aforesaid were attained by the Plaintiff, and that the vehicle was registered with it for the protest and that the vehicle was displaying a unique identification plate.
1.8 It is not disputed by the prosecution that the Plaintiff is competent to drive her vehicle on public roads with safety and competency, and that at the time of her interception by the police that she was driving in a manner that would not endanger life or property.
1.9 It is not disputed by the prosecution that the vehicle the Plaintiff was driving was roadworthy and insured with 3rd party property damage and covered for personal injuries under nominal third party defendant.
1.10 The Plaintiff claims that she has a right of political protest pursuant to sections within the Commonwealth of Australia Constitution Act, and natural law and common law and the Bill of Rights 1688. Her protest not only included driving a vehicle, but also includes petitions to the Senate calling for national unity in road laws, policies and regulations and the enforcement thereof
1.11 The Plaintiff claims that the particular charges as brought against her are not applicable in this matter when she is engaged in this type and manner of political protest and when all due care and diligence has been demonstrated and attained to the best of her ability.
1.12 The Plaintiff seeks to continue to abide by the road laws of the states as well as her common law duty of care obligations to herself and other road users, which laws and duties are not the subject of, or in conflict with, her political protest.
1.13 The Plaintiff is engaged in a political protest on several issues, which issues are common to persons participating in the protest who are members of the aforesaid association, namely:
1.13.1 The Plaintiff alleges violations to her right to privacy by:
i) Transport SA, that she alleges have provided her personal particulars to other entities without her consent
and
ii) the South Australian police force, that she alleges provides for its 3000 plus members the capacity and the opportunity to access to her data, which access is essentially unfettered and indiscriminate.
The Plaintiff does not consent to her vehicle registration data being made available to multinational corporations, or other unknown and non-approved entities without her consent as is the case at present.
1.13.2 The Plaintiff wants a report sent to her on every occasion that her data is accessed, which report states the facts of: who accessed her data, why her data was accessed, by whose authority her data was accessed, when her data was accessed, what date and time and by what method her data was accessed. .
1.13.3 The Plaintiff holds that registration should only be a once-off fee, and not an annual fee, because an annual fee is a subscription, and not a registration, and that when the Plaintiff is forced by statute to enter into such subscription, then that subscription is in effect a conscription which conscription is prohibited by the Australian Constitution pursuant to s51:23A.
1.13.4 Notwithstanding the Plaintiff is protesting that the aforesaid registration fees are being used for a purpose other than for maintaining a registration database.
1.13.5 Wants a separation of the Registration charge from the Compulsory Third Party insurance charge.
1.13.6 Notwithstanding, the Plaintiff is protesting that the registration fee that would be required for the maintenance of an electronic database would be in the vicinity of $30 to $100 initially, with a nominal annual book-keeping fee of only a few dollars, or alternatively a once off fee of approximately $200 to $500 for a perpetual registration that exists until such time as the vehicle is sold or transferred to another owner or otherwise expires from service.
1.13.7 Notwithstanding the Plaintiff is protesting that pursuant to the authority of FREIGHT LINES & CONSTRUCTION HOLDING LTD. v. NEW SOUTH WALES (1967) 116 CLR 1, wherein it is ruled that tax may be levied by the state for the care and maintenance only of state roads, but not for the construction of those roads. It is the duty of the State to construct roads, but it is not a restriction to trade and commerce to impose a tax for the care and maintenance of the road. The Plaintiff is protesting that she is paying fees and monies that are excessive beyond those fees and monies that are necessary for the care and maintenance of the road.
The Plaintiff does not consent to the exorbitant and excessive financial burden upon her right of passage, which burden arises from the imposition of petrol taxes, road tolls, vehicle registration, import duties on vehicles and many other fees and costs associated with the care and operation of a motor vehicle.
1.13.8 Notwithstanding, the Plaintiff is protesting that the State has created a monopoly regarding vehicle registration, which monopoly is unlawful pursuant to
i) Common law
ii The authorities of
The Adelaide Steamship Company Limited and Others -v- His Majesty the King and the Attorney-General of the Commonwealth [1912] HCA 58; (1912) 15 CLR 65 (20 September 1912)
ii) The Trade Practice Act 1974
iii) The Statute of Monopolies
1.13.9 The Plaintiff holds the position that the cost of living her right of passage using a motor vehicle is excessive and unlawful and that the registration fees are an onerous burden which hinders the exercise of her right of passage.
i) in the matter of Freighlines and construction Ltd v The State of
ii) The Attorney-General of the Commonwealth -v- The Adelaide Steamship Company Limited and Others [1913] HCA 36; (1913) 18 CLR 30 (25 July 1913)
1.13.10 The Plaintiff holds the position that the existing requirement at statute law for her vehicle to be registered with the state registration authority is a requirement that coerces her to enter into contract with an entity that is a statutory corporation
1.13.11 The Plaintiff holds that position that it is her right to enter into contract with the service provider of her choice regarding the registration of her vehicle, and that such contract is valid and at law must be recognised by the state as valid.
1.13.12 The Plaintiff has several other grounds for her protest, which grounds are more potent at law than those mentioned, but which grounds need not be cited at this time, as she is of the belief that the grounds as aforesaid establish that she has grounds at law for her protest.
1.14 The Plaintiff acknowledges the necessity of the road laws for the peace, order and good governance of road usage
1.15 In this matter the Plaintiff seeks either:
1.15.1 for an interpretation of the statutes and regulations under which she is charged to accommodate for her lawful and peaceful political protest; and/or
1.15.2 for a dispensation from the charges brought upon her, to accommodate for her lawful and peaceful political protest; and/or
1.15.3 to have the interpretation of the statutes broadened to encompass her peaceful political protest activities; and/or
1.15.4 Any other ruling that would satisfy the court that would cause for the matter against her to be otherwise withdrawn or discontinued.
2. .[State the nature of the matter (e.g., the constitutional issue which is said to arise)
2.1 The right of peaceful political protest and the right to freedom of communication on political matters are rights that are implied as existing within The Commonwealth of Australia Constitution Act and which rights are upheld pursuant to the authorities of v State of Victoria & Ors FC 97/024and The Human Rights Commission Act 1981 No 24, 1981 and the William I, Mary Sess II Bill of Rights 1688.
2.2 It has been decided in Levy. that political protest is not restricted to words but may also include action, provided that that action does not endanger life, and, that the action is lawful at common law.
2.2.1 The action of driving a vehicle is an action that is permitted at common law, and, as found in Levy is an action which must be upheld as being lawful when the action is used for the purposes of a peaceful political protest.
2.2.2 The manner in which the Plaintiff was driving was safe, and was not challenged by the informant as being threatening or dangerous to human life or other life or property.
2.2.3 The vehicle that the Plaintiff was driving was insured, and was road worthy as demonstrated by a certification of roadworthiness for that vehicle.
2.2.4 The Plaintiff at the time that the allegations were made was living her right of passage which right is to drive a motor vehicle on the public roads within the Commonwealth of Australia. The Plaintiff’s position is that right of passage is a common law right and a natural law right and also a right pursuant to s92 of the Commonwealth of Australia Constitution Act, The Human Rights Commission Act 1981 No 24, 1981, which right when lived is lawful when all due care and diligence has been demonstrated and attained to meet best practice standards of the states for:
a) ensuring the vehicles structural and functional integrity and
b) the manner in which the vehicle is being driven.
2.2.5 The Plaintiff’s conduct of driving a motor vehicle is a conduct that is permissible at common law, and pursuant to s92 of the Commonwealth of Australia Constitution Act, and such conduct may not be lawfully obstructed except where there is justifiable cause of action at law to so obstruct.
2.3 At the time of the alleged charges the Plaintiff was active in a political protest and in communicating that protest in actions that involved the registration of her vehicle and the driving of that vehicle. The Plaintiff, at the time charges were alleged against her, was engaged in a political protest upon the issues as aforesaid, which protest is lawful upon the grounds as aforesaid.
The police by their action, interfered with and stopped that protest, on the grounds that they do not recognise the protest or any immunities that may arise from such a protest.
In this matter the state law is inconsistent with the Federal law regarding the Plaintiffs right of political protest and the immunities arising therefrom.
2.4 In addition to the particulars of the political protest as aforesaid other considerations in her protest are that from time to time:
i) The Plaintiff may carry that protest between states, by her driving her vehicle between states, or.
ii) The Plaintiff may engage in a protest that may see her carry that protest between states by driving her vehicle between states for the purposes of engaging in protest or for engaging in trade and commerce between those states whilst protesting.
iii) The Plaintiff is engaged in a protest that may see her drive between states for the purposes of intercourse among the states or for trade and commerce among the states,..

3. [State the facts showing the matter is one to which Section 78B of the Judiciary Act 1903 applies.]
3.1 The High Court of Australia has original jurisdiction to hear and determine matters pursuant to s51:xxiv, s51:xxv, s73, s75, s109 of The Commonwealth of Australia Constitution Act.
3.1.1 S51:xxiv; “and the judgements of the courts of the States”
where the said court in which the matter is set to be heard, shall exercise its right to make a judgement that shall involve the interpretation of the Constitution, but which court is not with original jurisdiction on such interpretation.
3.1.2 S51:xxv; “The recognition through the Commonwealth of the laws, and the judicial proceedings of the States’.
The laws of the state and the original jurisdiction of the state is subject to s109, “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency be invalid”.
Whilst original jurisdiction is with a State in its judicial proceedings, such proceedings are subject to s109, when a law of a State is inconsistent with a law of the Commonwealth.
In this proceeding such inconsistency is apparent. Intervention and clarification of the inconsistency is required, and the remedy to initiate this proceeding exists pursuant to s78B of the Judiciary Act 1903. upon by the High Court of Australia.
3.1.3 s73: “to hear and determine appeals from all judgements, decrees, orders, and sentences” and that the court of the State in which this proceeding has commenced shall proceed to hear and determine the matter without consideration of the Constitutional matters that arise within the proceeding, and without the original jurisdiction to hear such Constitutional Matters. Upon such hearing and determination the proceeding must, in the pursuit of the interests of the Plaintiff, be thereafter appealed in its natural course to the High Court of Australia. S78B must apply to create a prohibition on the hearing of the matter in the state court, lest it proceed and the ruling or orders made therein be thereafter overturned upon the consideration of the High Court.
3.1.4 s75: “he High Court of Australia has original jurisdiction in all matters:
(i) arising under any treaty, “
with such treaty being The International Covenant on Civil and Political Rights,

3.1.5 s75: “The High Court of Australia has original jurisdiction in all matters:
(iii) between states, or between residents of different States, or between a state and a resident of another State,” with such matters being
a) the right of political protest and
b) the right of political protest of persons from different states who are engaged in the same protest.
c) The right of political protest of persons from a state who carries that protest between states by the deliberate action of driving that vehicle between states for the purposes of either intercourse among the states or trade and commerce among the states or for the purpose of protesting.
d) the right of political protest in a state by a resident of another state.

3.1.6 s75: “The High Court of Australia has original jurisdiction in all matters:
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
For the grounds as aforesaid such prohibition or injunction is implied with the meaning of s78B in its effect upon this proceeding which it affects, though such instrument of injunction has not been issued in that wording.
3.1.7 This proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903, as the right of political protest arises
i) pursuant to the International Covenant on Civil and Political Rights which is a treaty entered into by the Commonwealth and which treaty binds the Crown in Right of a State pursuant to Part IIB of The Human Rights and Equal Opportunity Commission Act 1986
3.1.8 The right to freedom of communication on political matters is a right that may be lived by members of the community, including electors entitled to vote for a member of the Senate. That is implied within the constitution.
i) Pursuant to is an Act the binds the Crown in Right of the State.
4. Dated:

................(signed)...............
(Plaintiff/Appellant or
solicitor for Plaintiff/Appellant)
To: