VERDICT HANDED DOWN - 27 November 2007

GUILTY per S.10(2) and S.14(1) of Census Act

Reduced fine amount by $450.00 for showing up sloppiness on CDPP and ABS behalf in their submission of false evidence. Didn't really have a chance for defense. Judge takes my documentation home and considers it. He understands that as a person my aims, but must enact the Law.

An Area Supervisor should have paid a visit (I called this a precursory element to which I should have been afforded in this non violent situation), but the newly enacted Law of 2006, now removes the right of the citizen to provide a reasonable excuse in not filling out a Census form and instead makes it a criminal offence. A sad day for the People, but most Australians wouldn't know what is going on in the background regarding reduction in their privacy, not unless we banded together.

Total Fine Amount approx. $2700.00 - NOW BROKE

Considering an appeal. Down, but not out. There is a positive side, in a way I didn't mind losing at this level. For first time in court and self representing, its been a learning experience. More Australians need to be aware of the SLCD, see links at the bottom of this page.

If only I wasn't hearing impaired... but will plod on and make do anyway.

(Court transcript to be provided online when received)

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START CASE.

COMPLAINANT (Australian Bureau of Statistics/Commonwealth Director of Public Prosecutions)

V

DEFENDANT An ordinary Australian

Timeline.

May of 2006 - On the Census and Our Governments Duty

"I am a mere criminal for denying something you want, but when we want something of you, token promises fall by the wayside. I shall not forget. And in reminding you of your duty to us, I have become a criminal yet again" Alex Young, May 2006.

Around that time, I came across some issues regarding the Census as outlined at the Australian Privacy Foundation website. Every Australian should be concerned with the issues raised on this page and others as related on the main APF page.

Also was formed with a few people from Resist was the concept of Con-Census 2006. A collaborative effort ensued to a limited degree, on the draft for a letter of objection.

8 August 2006 - I decided to include the first letter of objection with my blank yet to be completed Census form. As was put forward by myself at the time to Con-Census 2006, the first letter was a bit rough around the edges and far too wide in scope in trying to correlate the Census and other illegal actions of the Australian government e.g. war on Iraq. But I was out voted.

I mentally broke away from the group at that time in terms of aims. I felt its forum was too wide reaching to blame other actions on the Census alone. I did some more research at APF and other Census related sites and started to draft a second draft letter of objection for my own use. This second letter would become what constituted, from the perspective of the Act, my real reasons for objection and thus the offense was created  thereafter. Around this time someone alerted me that the version of the Census Act to which I was using was a slightly older version pre-April 2006 and made such changes to the draft accordingly. I continued to post my thoughts to the group.

20 August 2006 - My Census form was collected in a sealed yellow envelope with the First Letter of Objection

What takes place next is what some of you may have experienced in your dealings with various government departments. Remember the human disassociation I talked about in the original letter?

BOTTOM LINE: No Australian citizen should be made a criminal for the mere wanting of answers.

22 August 2006 - It is alleged by the ABS that an Area Supervisor paid a visit to my premises. No such event took place and to date has not taken place.

14 September 2006 - The ABS sends me a Notice of Direction under S.10(4) of the Census and Statistics Act

18 September 2006 - Notice and second blank Census form received, I had 15 days to comply or face criminal charges. Recently amended, the Act confers a penalty if $110 per day for every day refused.

26 September 2006 - Second Letter of Objection and second blank form sent to ABS

29 September 2006 - 15 day deadline for compliance ends. "Offense" now created.

24 November 2006 - 10 Dec 2006 - Trip to Venezuela with AVSN & International Election Observer role

6 March 2007 - ABS initiates summons to appear in local Magistrates court

16 April 2007 - SA Police informs me of request for summons to Court be held one week later. Received Summons and Summary of Facts form from ABS/CDPP/SA Police.

23 April 2007 - Mention Hearing. Intended to plead guilty as per advised, but changed my mind in session to NOT GUILTY. My hearing aid played up and I couldn't hear too well. Pre-Trial date set. Case handed to Commonwealth Director of Public Prosecutions (CDPP) on behalf of ABS.

ATTENDED COMMON LAW COURSE in Melbourne as I didn't want and could not afford a lawyer.

13th June 2007 - 10.30am. First Pre Trial Conference Hearing. Defendant unrepresented. Outlined defense as in Pre-Trial Conference Notes. Raised S.116 of the Constitution. Prosecution (via telephone) offered no information and wanted to consult superiors. Requested forum be shifted to a higher court. Magistrate offered to drop all charges and further fines if I plead guilty. Adjourned pending my decision. Started thinking about relationship between the court system and CDPP and wondered if this influenced the role of the Magistrate as an impartial arbitrator. Actual penalty in area of $150 to $300 only, even though I reminded the Court of the S6.1 of the Criminal Code.

Implied Penalty to date $24,640.00 + ongoing court costs

14th June 2007 - CDPP prepares documentation upon which they will rely. CDPP Letter received. Annotated as a true and accurate record of the Commonwealth. (see below - 27th June 2007)

Memorandum from Magistrates Court summarizing First Pre Trial Conference Hearing. No mention of the fact that I raised S.116 of the Constitution.

18th June 2007 - Defendant received CDPP documentation. CDDP issues a schedule of Admitted Facts as per S.34 of the Evidence Act 1929 based on my Pre-Trial Notes. Serious errors of omission, redraft by me required. You have to agree to this document, which means you have a right to disagree to the draft and resubmit it!

19 June 2007 - Letter to Attorney-General of the Commonwealth and the States requesting intervention in matters of Constitutional interpretation, as per S.78(B) of the Judiciary Act 1903. Amended draft of Admitted Facts by defendant sent to CDPP. cc Magistrates Court. Also preparing schedule of admitted facts based on Complainants documentation.

25 June 2007 - Rang the ABS for clarification of the following 3 questions. Gave my name only. Person said someone would return my call. A while later a Mr James Tuhan rang (I didn't know he was the same guy listed in Section H until I noticed his name there sometime later that day). He was reluctant to answer all of my questions unless I told him the reason. I relented and said the ABS had a prosecution case against me. Mr James Tuhan promised that he would outline what he said on the phone (hard to hear all of it) and send it to me in an email prior to 27 June 2007.

Questions Asked:

     1.) During a Census period, what are the operating hours that contact is allowed to be made with a residence or individual, either by phone or a personal visit by a a) Census Collector? b) Area Supervisor? [9.41 PM was mentioned by me] 

     2.) If a person/household refuses, what is the minimum and/or maximum number of visits or contact attempts that an Area Supervisor undertakes to try and convert the person/household into submitting a Census form?

     3.) If a Census form is submitted in a sealed envelope and handed to a Collector, who has the power to open that sealed envelope? The Collector and/or the Area Supervisor?

26 June 2007 - Business hours long gone - still no email from Mr James Tuhan as promised. I wonder if the delay and prompting they used the time from 3 p.m. 25th June till the morning of 27 June may have created the time for them to contact the CDPP and recognized the errors in their Refusals Report?

27 June 2007 - 9.15 am. Second Pre Trial Conference Hearing. Defendant unrepresented. Prosecution (CDPP) present in person this time. Court gathers to hear Defendant's plea. Keeping in mind the Judges desire to resolve it at this level, I decided to act as if it were a mini trial. and bring up the points as per the evidence as submitted by the ABS/CDPP.

The following ABS Refusal Report is what the CDPP submitted to the Court on the 14th June 2007. Readers are to note Section C on page 3, the Area Supervisor section. The Defendant maintains that NO Area Supervisor made contact or visited the household at any time.

Outlined defense as in Pre-Trial Conference Notes 2. Though I read somewhere that the accused is not obliged to give the Court their full defense. Truth and Principle should prevail over protocol and untruths. Jail does not concern me.

ABS Refusal Report: Page 6, Page 1, Page 2, Page 3, Page 4, Page 5
Note: Specific person details listed therein have been removed for privacy reasons.

Defendant's Submission: Witness Statement 1, Witness Statement 2, Draft of Admitted Facts of Complainant, ABS Views on Content and Procedures (refer page 9, "Non Co-operation") - PDF

Bottom line: I am in court because someone sitting at a desk made the decision to form a character assessment of myself, offered no follow up on my refusal, nor did they respond to my invitation to discuss the issues. Assuming an Area Supervisor did visit the premises and was unsuccessful in converting the householder, a letter explaining the consequences of further refusal should have been sent out. This matter went straight to the issuing of a Notice of Direction as per S.10(4) of the Census Act. Several and proper ABS procedures were NOT followed.

Despite outlining the obvious errors in the ABS record and the lapse to follow their own protocol and procedures, the CDPP submits to the Court, the following:-

1.  To dismiss the ABS Refusal Report (6pgs), which was submitted as evidence on 14 June 2007 !!

Power to dispense with formal proof as per the Evidence Act 1929, S59(J) Here

    (1)     A court may at any stage of civil or criminal proceedings—
     (a)     dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or
     (b)     dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay.

    (2)     In exercising its power under subsection (1) the court may, for example, dispense with proof of—
     (a)     a document or the execution of a document;
     (b)     handwriting;
     (c)     the identity of a party;
     (d)     the conferral of an authority to do a particular act.

    (3)     A court is not bound by the rules of evidence in informing itself on any matter relevant to the exercise of its discretion under this section.

What this is saying is that the CDPP no longer wishes to use the ABS Refusals Team Report by asking the Court if it can be dismissed. In this way, the CDPP is tightening up its belt and seeking only to prosecute according to the offense of non-compliance.  This would mean wiping out half information on the original Summons and Summary of Facts form dated 16th April 2007 and modifying the CDPP's original schedule of Admitted Facts to suit!!

Basically from the CDPP's perspective: We don't care what the ABS did or didn't do, we only got a paper brief on the matter, our job is to prosecute and if that means we have to ignore previous (and unchecked! Ed.) evidence that we submitted, so be it.

Quote by Prosecution - "Mr Young, I have no idea whether an Area Supervisor visited you or not, that no longer comes into the offense in our view".

I asked the CDPP if I could contact the ABS in regards to any queries I had in order to avoid a trial in September. Answer Yes.

2. In lieu of getting the person as named in Section C who supposedly visited our premises, the ABS/CDPP wishes to submit a paper affidavit as evidence instead !! (Note: The Defendant WANTS to see this person give a statement under oath !). Even still I would be curious to see what is on the affidavit, which holds some power as a legal document, but not as much a spoken testimony...

Therefore the CDPP submits to the Court, the following as found here in the South Australian Magistrate Court Rules:-

35.00 AFFIDAVIT EVIDENCE
35.01 In any proceedings before the Court unless the Court directs otherwise any matter may be proved by affidavit without the necessity of calling oral evidence unless the other party objects.
35.02 The party intending to rely on the affidavit must serve the other party with a copy thereof at least 21 days before the hearing together with a copy of this Rule.
35.03 The party upon whom the affidavit is served may object by notice in writing (giving detailed reasons therefore) to the party intending to rely on it at least 10 days before the hearing.
35.04 Service of the affidavit or notice may be effected by post either on the party or the party's legal representative.
35.05 The manner of service must be endorsed on a copy of the affidavit or notice.
35.06 The Court may order costs against a party unreasonably objecting to the use of an affidavit.
35.07 The Court may if it is not satisfied that a genuine dispute exists between the parties or that compliance with the rules of evidence might involve unreasonable expense or delay direct that certain evidence be given by way of affidavit.
35.08 Where any proceedings before the Court or a Registrar may be dealt with, without notice to any other party, any matter may be proved by affidavit filed in the registry without service on any other party.

Note: That the Defendant can object to this and request that the evidence be presented as a person, the Court has the final say whether to say yes or no to the objection. Interesting to see what the Court would consider as unreasonable and potentially fine the accused further! Due to the relationship between the CDPP and the Court system, the Defendants wonders if it is worth objecting too, though object he will.

Though the Court has yet to convene for Trial (set for 28th September 2007), if the Court decides to oblige the CDPP's request to 1 and 2 above,  this will severely hinder the Defendant's ability to raise a good case. Defendant asked for trial by Jury - denied.

Note: With all the plethora of legislation available out there (not everyone would know it all), why do you think the CDPP would invoke these two as above? Answer: To squeeze out the Defendant, so that a successful prosecution is ensured. The law as written by man,  it appears, is not absolute. A lot of picking and choosing goes on to effect a certain outcome, even if that outcome denies the individual his inalienable rights in the process.

The Defendant believes that life itself is causal. That is, we live in a world of cause and effect. One thing leads to another. In this case, no communication was received from the ABS, even though the Defendant invited them to discuss the issues as per his Second Letter of Objection. No Area Supervisor made at least two visits to the householder's premises. No pre-Notice of Direction letter was sent out. Yet their document of procedures states that these must take effect before a Notice of Direction is sent.

If the Court grants the CDPP these two requests, then as a matter of principle along the line of Truth, the Judge is not an impartial arbitrator and the Court is not a Court of Justice.

Note:  This is a battle of common law Principle Vs statute law Protocol. To understand why Principle should take priority in this case, read Play It Forward Australia views on the: Functions of Government. The written Law (protocol) is based on unwritten common law Principle.

In a complex society, common law Principle gets drafted and passed into legislative form to limit the potentially bad interactions between the constituents (people) of a society. Protocol in this case should only surpass common law if one of two parties has been violated - that is to say one person's will sphere has been intruded upon without their consent e.g. rape, drink driving, murder, bad manufactured product etc. In this example, the Court system should find the other party guilty, when and if proven guilty. As we all know, many good people get sent to jail and many bad people do not get punished.

28 June 2007 - Sent Pre-Trial Notes 2 to Court and CDPP. Made decision to not read from Notes next time - Go With the Heart.

29 June 2007 - Contacted Mr James Tuhan of the ABS (see page 5 of ABS Refusal Report) in an endeavor to reach a reconciliation before the trial. He responded to me in a timely manner and said:

"Dear Sir, as there is a prosecution pending you should refer all queries to the SA, DPP."

Block the communication lines again. And this is from the same person who said to me on Monday 25th June "we don't like to prosecute".  Protocol over Principle again.

3 July 2007 -  Responded to Mr Tuhan's email dated 29th June 2007.

"Dear Mr Tuhan,

I was in contact with your department nearly 2 days before the conclusion of the Pre-Trial conference. I was assured by yourself as a person that I would be the recipient of an email to which you had promised to send regarding 3 questions that I had had.

The answering of those questions would not have changed the outcome of the proceedings of the pre-trial.

I spoke at length with Ms. Kate Fitzgerald of the CDPP on Wednesday 27 June 2007 and she was okay with me contacting the ABS at any time to discuss our options. You need to correlate with the CDPP as I am getting told quite the opposite.

Kind Regards
Alex Young"

9 July 2007.

1. CDPP acknowledges my Notes sent 28 June 2007 and returns my call. Asked to submit a letter in writing outlining my queries. Sent Notice of Discovery via email to CDPP requesting reasons why I was unable to gain a response to the three questions I had on 25 June 2007 and also why the ABS was reluctant to communicate from thereon. I also asked them to produce documentation or legislation which relates to their unwillingness to do so.

2. I took the opportunity to ring the Attorney-General's Department Central Office at Robert Garran Offices in Canberra and I was forwarded to their Legal Policy area. I wanted to know if their office had received the letter to the Attorney-General 's Department dated 19 June 2007.

Ms Lee Galloway was most helpful in this regard and suspected that the letter may have been forwarded on to the Australian Government Solicitors Office for consideration. S.78(B) notices are processed by this department and then referred back to the Attorney-General's office so that the recommendation's may be carried out. Due to difficulty hearing on the phone, I asked Ms Galloway if she wouldn't mind sending an email explaining what she had related on the phone. She said she would send it right away. Upon being the recipient of such an email, I also asked her if I could resend the letter again to her office so they had another copy of it. Agreed.

Email from Ms. Lee Galloway received. Advised to contact the Constitutional Litigations Unit at the Australian Government Solicitors Office in Canberra. 19th June 2007 letter resent.

3. Rang the Constitutional Litigations Unit to see if they knew the whereabouts of my letter dated 19 June 2007. No idea. Mr David Bennett however was most helpful and so I sent him a letter and another copy of the documentation as sent 19 June 2007. Letter to Mr Bennett

4. Received Memorandum from Magistrate's Court summarizing the second Pre-Trial Conference dated 27 June 2007 that:

• the complainant has advised that it is their intention to seek to prove the prosecution case by relying upon affidavit evidence and making use of Rule 35 of the Magistrate Court Rules 1992

• Pursuant to that rule, the complainant will need to serve Mr Young with a copy of the affidavits upon which the prosecution intends to rely at least 21 days before the hearing

• Mr Young may object by notice in writing, giving detailed reasons therefore, to the complainant at least 10 days before the hearing

• If Mr Young adopts that course, the complainant will then call the persons who made the affidavits to give evidence orally

• If at the end of the day the court is satisfied that the objection to the use of affidavits was made unreasonably the court may order costs against Mr Young. These may be substantial.

• Where affidavits are served it may be in the best interests of the defendant to obtain a copy of and have regards to the contents of the Magistrate Court Rule 35 of the Criminal Court Rules

The Magistrate also sought to mention that "nothing that was raised by the defendant satisfies me that this matter raises a constitutional question such that it is appropriate to give notice to the Attorneys General of the State and Commonwealth pursuant to the relevant provisions of the Judiciary Act."

I am a little puzzled by this response. From my understanding a Magistrate Judge is not qualified to discuss matters of the Constitution. Recall it was the CDPP who alerted me to the fact that a S.78(B) Notice as per the Judiciary Act 1903 was required to be sent to the office of the Attorneys General Department. So is that therefore saying that the Judge would not have made the same recommendation to the Defendant solely because he was not satisfied with matters of conscience?

With so many other cases on their hands, one has to wonder how much time Magistrate's actually give to the literal interpretation of statements where in I mentioned in my first Pre-Trial hearing notes that S.116 annuls any ABS documentation that has "the power" to categorize my conscience according to predefined ABS religious classifications, thus making my conscience of no value. Yet I do have value.

This memorandum, however implies that this S.116 issue was brought up at the second pre-trial conference, when it was actually the first one two weeks prior. Why wasn't it commented on then in the first Memorandum from the Court dated 14 June 2007? Has the government been in contact with each other and agreed not to pursue this as a matter of Constitutional interpretation already? Who are the same bed fellows and who are not? I wonder if government protects their own, even if they are wrong in this matter which the ABS chose to make an example of.

Also note that the Magistrate omitted saying anything about the dismissal of the ABS Refusal Team's Report which was also asked to be dismissed by the CDPP on  27 June 2007 before the serving of affidavit evidence only. This was 1 of the 2 things the Prosecution put forward, highly relevant wouldn't you think to include in a summary via Memorandum? You have to wonder why it doesn't figure into one's conscience for reasons that it is a powerful tool for the Defendant. Does this point to the Magistrate as being influenced by other powers which would seek to rob him of his role as an impartial arbitrator?

10 July 2007 - Letter to the CDPP querying status of the redraft of the Schedule of Admitted Facts and whether it was accepted by both parties. Awaiting their response.

12 July 2007. More fuel for thought.
1. An email sent to the Constitutional Litigations Unit for their consideration.

13 July 2007 - Letter received from the Australian Government Solicitor office.

• The Commonwealth Attorney-General will not be intervening in this proceeding in the Magistrates Court, nor will be applying to remove the cause from that court to the High Court.

• If the proceeding is taken further on appeal, or is removed to the High Court, the Attorney-General might decide to intervene at that stage. This would be considered upon receipt of the appropriate notice under s 78B of the Judiciary Act 1903.

23 July 2007 - Letter received from the CDPP in response to my letter dated 2 July 2007 and email 9 July 2007.

I refer to your email dated 9 July 2007 with attachment entitled "Notice of Discovery" in which you request "full disclosure of information and ability to communicate with both the ABS and the CDPP in these matters". It is unclear from your letter exactly what documentation you are requesting. Whilst I am prepared to consider any reasonable request for information from you, I cannot assist where it is unclear what is being sought.

24 July 2007 - Letter received from the CDPP in response to my letter dated 10 July 2007.

• Should the Schedule of Admitted Facts be agreed by both parties the document will have the effect as set out in s34 of the Evident Act 1929 (SA).

• The Prosecution agrees with paragraphs numbered 1-2,4-8 and 10 of your revised Schedule.

Facts Agreed To:

1.      That the Defendant is the person charged on complaint dated 6^th March 2007.
2.      That the Defendant did not make aware to the collector of the first refused Census form his reasons for     refusal on 20^th August 2006.
4.      That the Defendant was sent a Notice of Direction by ordinary mail on 14 September 2006.
5.      That the Defendant received the Notice of Direction on 18 September 2006.
6.      That the Defendant wrote to Mr Paul Williams, Assistant Statistician on 26 September 2006 confirming that he had received the Notice of Direction.
7.      That a blank Census Household form was attached to a Second Letter of Objection on 26 September 2006. The second letter expressed privacy concerns and outlined his reasons for refusing to comply with the Notice of Direction.
8.      That the Second Letter of Objection invited the Complainant to contact him personally and discuss the issues prior to completing the Census form.
10. To date, that a Census Household form has yet to be completed and received from the Defendant.

Facts Not Agreed To:

3.      That the Defendant did not receive a follow up call or a visit from an Area Supervisor in regards to his first refusal on 22 August 2006. (see 30 July 2007)
9.      To date, the Complainant has not made suitable contact with the Defendant  to discuss the issues which justifies handing over his personal information.

30 July 2007 - Letter and accompanying documents received from the CDPP.

Dear Sir,

Please find enclosed a copy of the affidavit of Renee Brown upon which the prosecution intends to rely for the purposes of the hearing.

As a result of further discussion with the Area Supervisor, Ms. Venetia Langlands, prosecution advise:

1. That Ms Langlands believes she PROBABLY did not attend your dwelling for a follow up visit nor did she make contact with you on 22 August 2006;

2. That there are some discrepancies in section C of the refusal report;

3. That Ms Langlands is unable to explain the discrepancies in the refusal report

Prosecution does not intend to call Ms Langlands to give evidence. Should you wish to cross-examine Ms Langlands she will be made available at the hearing.

I also enclose a copy of Rule 35.00 of the Magistrates Court Rules (Criminal)

1 August 2007.

1. Email from the ABS - Mr James Tuhan.

Dear Mr Young,
Further to your email of the 22 August 2007, I wish to advise that our decision to correspond with you through the State DPP was an internal decision base on the fact that your matter was already in their hands. Based on the advise we now have, if you wish to put your enquiries in writing we will respond directly to you via email.

Regards
James Tuhan

2. Email to Mr James Tuhan in response to the ABS invitation dated 1 August.

Dear Mr Tuhan,

Could you please start by answering the questions as per our phone conversation dated 25th July 2007 to which you originally promised to send via email due to my difficulty of hearing on the telephone. I presume you have kept a copy of my emails.

Your response comes as a surprise to me as over a week ago I received a letter from the CDPP in response to my Notice of Discovery requesting communication with you. The CDPP said they were unable to understand my request. Does that mean your department understood it and did the Notice of Discovery prompt you to investigate the legal ramifications for and against communicating with the Defendant during trial proceedings?

Thank you for becoming more human in your approach. It is unfortunate that someone in your department bypassed several steps and has labeled me "anti-government" without direct and personal contact to the householder. I would have understood your position if I had of acted in the following manner:-

1. Burned my forms in the fire
2. Set my dogs on the collector or Area Supervisor 3. Shouted obscenities at the collector or Area Supervisor 4. Filled in my form dishonestly, with incorrect information and/or defaced the form 5. Any other manner which you are aware which people do not co-operate.

Those points aside and due to the fact of your non-cooperation thus far, I would have and would still oblige a friendly chat over a coffee or tea. This should have taken place sometime before the NOD was sent when I should have been sent a refusal letter or two.

I would be willing to compromise if you can show to me the correct ABS procedures and extend to me the courtesy that I deserve as a person who is not "anti-government", but rather pro-people government. Government exists for the people Mr Tuhan and both are adjunct to each other - or should be.

So why not forget the trial, drop the proceedings or at least place it on hold until the kettle is warm, a beverage of choice poured and an amicable discussion held. You might be pleasantly surprised. This constitutes the meaning of the last sentence in my Letter of Objection as sent to you dated 26 September 2006.

Kind Regards
Alex Young
 

2 August 2007.

1.  Letter  received from the CDPP in response to my email sent 30 July 2007.

In relation to your request for information or policies about ABS communicating with you, I am advised by ABS that no such legislation or policies exist. The decision to communicate with you is made by relevant ABS officers. I am advised that you were sent an email from ABS on 1 August 2007 inviting you to correspond with them via email. Any further concerns regarding this issue ought to be taken up with ABS.

2. Email from Mr James Tuhan in response to my email dated 1 August 2007.

Mr Young,
Attached is my email response to the questions you raised during our phone conversation.

Regards

James Tuhan

Attachment:

To
Jillian Green/Staff/ABS@ABS
cc

Subject
Alex Young

Hi Jill,
As discussed attached is the NIRS enquiry from Alex Young, he has asked a series of questions over the phone which NIRS have forwarded to me. I have contacted him and answered his questions, which were;

What is a reasonable time of day for a Collector to visit a dwelling?
Collectors are advised a reasonable time to call, there is not a direction to call between certain times. These reasonable times are between 8.00am and 8.30pm on weekdays and 9.00am and 8.30pm on weekends and public holidays

Is 10.15 a reasonable time to visit a householder?
It depends on the circumstances, if the Collector has established that they are likely to make contact at this time and can not make contact at any other time then this time would be reasonable.

How many times is a Collector required to visit a household once the householder has refused?
If a householder refuses then the Collector is to ask the householder to look through the form and the guide before they decide, if the householder still refuses then the Collector is to offer the householder a copy of the obligation statement. If the householder still refuses then the collector is to fill out a refusal report and hand it to the Area Supervisor within
24 hours. The Collector is told not to go back to the house unless requested to by the Area Supervisor.

How many times is an Area Supervisor required to visit a householder once they have been given a refusal report?
This Area Supervisor is required to visit the householder once after they have been given a refusal report.

Does an Area Supervisor always visit a householder if they have refused?
No, the Area Supervisor generally will visit the householder if they have refused. The exceptions to this are if the;

Area Supervisor is concerned for their safety, the householder has

• threatened violence;

• householder has been verbally abusive;

• householder has provided advice in writing that they refuse to complete a Census form e.g. Con-Census letter; and

• householder has requested a Notice of Direction.

These are only exceptions and on a number of occasions the Area Supervisors did visit these households to offer assistance.

Regards
James Tuhan

Census Field
Procedures & Documentation

3. Email to Mr James Tuhan in response to his email dated 2 August 2007.

Mr Tuhan,

These questions were not the three that I specifically sent to ABS Client Services via email dated 25 June 2007. During our phone conversation dated 25 June 2007, did you record our telephone conversation using an audio recording device?

For your records again:-

1. During a Census period, what are the operating hours that contact is allowed to be made with a residence or individual, either by phone or a personal visit by a:-

a) Census Collector?
b) Area Supervisor?

2. If a person/household refuses, what is the minimum and/or maximum number of visits or contact attempts that an Area Supervisor undertakes to try and convert the person/household into submitting a Census form?

3. Also I am wanting to know if a Census form is submitted in a sealed envelope and handed to a Collector, who has the power to open that sealed envelope? The Collector and/or the Area Supervisor?

Your email today also did not address several other points which I raised in my previous email sent yesterday. Please reread the document.

Regards
Alex Young

4. Email from Mr James Tuhan in response to my email dated 2 August 2007.

Mr Young,
I have listed the answers to your questions below them. [at this stage, no he hadn't. Ed]

Regards
James Tuhan

5.  Email to Mr James Tuhan in response to his email dated 2 August 2007.

6. Email to Mr James Tuhan as a reminder of my email sent to him dated 2 August 2007.

3 August 2007.

1. Email from Mr James Tuhan in response to my email dated 2 August 2007.

Mr Young,
No, the conversation was not recorded on an audio device. The only recording of the conversation was done by me when I typed out my email response to our discussion, which you have a copy of.

Regards
James Tuhan

2. Email to Mr James Tuhan in response to his email dated 3 August 2007 (reminder).

Mr Tuhan,

Thank you for your reply. I look forward to your responses to the 9 questions sent previously.

Regards
Alex Young

3. Email from Mr James Tuhan in response to my email dated 3 August 2007.

Mr Young,
As far as I can see I have answered all your questions.

Regards
James Tuhan

[??? Ed. He got Qu. 10 right this time, but where are the answers to 1 to 9?]

6 August 2007 - Email to Mr James Tuhan in response to his email dated 3 August 2007 (reminder).

Dear Mr Tuhan,

Knowing that you are a man with a busy schedule, what time frame may I receive a reply to the 9 questions sent to you dated 2 August 2007?

Regards
Alex Young

7 August 2007

1. Email from Mr James Tuhan in response to my email dated 2 August 2007.

Mr Young,
The answers to your questions are listed below.

Regards
James Tuhan

ABS Response in RED

Question 1. Do you still have a copy of the first Letter of Objection? I note Renee Brown in her affidavit stated that it was unable to be found.

No we do not. Would you please send me a copy of this letter

Question 2. Are you implying that the health and safety of the Area Supervisor was at risk because I wrote a letter?

No, this was not implied at any stage.

Question 3. What validation do you have that led to a character assessment being made of the Defendant that he was "anti-government"?

I was not present when the Collector called on you, however I do note that a letter of objection was attached to the form. This may have influenced the Collectors thought process.

Question 4. If a collector was handed a census form in a sealed yellow envelope and the only exchange that took place on 20 August 2006 was:-

Collector: Did you have any problems with it?
Alex Young: No (thinking she was referring to my ability to
understand the questions)

If the Collector was not allowed to open the envelope, how was she able to make a note in Section B of the report that I was "anti-government"?

The fact that you attached a letter of objection to the form and our Field Staff did communicate with each other on a regular basis, may have provided her with the information that enabled her to complete section B.

Question 5. Assuming some correlation took place between the collector and the Area Supervisor after collection, why was "anti-government" not selected as a matter of consistency in Section C of the Refusals report?

The Area Supervisor may have formed a different opinion, after reviewing the information at hand.

Question 6. The Refusals Report states that "other" was selected with no description given to explain this. How do you explain the discrepancies of the whole of Section C given that the Area Supervisor "probably" did not pay a visit to the household in concern?

The Area Supervisor may have formed a different opinion, after reviewing the information at hand.

Question 7. What prompt the decision to forego several intermediate steps prior to a NOD being sent out? I would have welcomed a visit by an Area Supervisor to discuss the issues as per my invitation in the Second Letter of Objection. Why was I not offered an obligation letter or a refusal letter?

The fact that you advised the Field Staff that you would not submit a completed form, provided a leter to back this up and handed your blank Census form to the Collector in a sealed envelope.

Question 8. For the whole of 2006 Census Australia wide, what was the total number of Australian households that refused to comply initially and what percentage were sent a Notice of Direction?

There were approximately 23,000 refusals received of which we have resolved approximately 22,850 and there were 4,955 Notice of Directions sent out, which is approximately 22%.

Question 9. For those Australian households that further refused to comply with the Notice of Direction, what percentage of those households were summoned to prosecution?

Approximately 6% were summoned to prosecution.

INTERMISSION - DOING THE SUMS.

• Approximately 23,000 Australians initially refused the 2006 Census

• 4,955 Notice of Directions were sent out (4955/23000 = approx 22%)

• 6% of 4,955 Australians individuals or households were summoned to prosecution (4,955 * 0.06 = 297, lets say 300)

• 150 have so far not been resolved (23,000 - 22,850)

• Conclusion: Approximately 150 Australians converted on their previous post NOD refusal by pleading guilty in the Courts and 150 are still taking a stand by pleading NOT guilty.

2. Email to Mr James Tuhan in response to his email dated 7 August 2007. First Letter of Objection resubmitted.

8 August 2007

1. Email from Mr James Tuhan in response to my email dated 7 August 2007.

Mr Young,
Thank you for providing the copy of the first Letter of Objection. With regard to your assertion that a direct association was made between the Health and Safety of the Area Supervisor and the receipt of your Letter of Objection, this is not accurate and it would have be helpful if you had included the complete response to your question. Refer below:

"This Area Supervisor is required to visit the householder once after they have been given a refusal report. The exceptions to this are if the;

Area Supervisor is concerned for their safety, the householder has

• threatened violence;

• householder has been verbally abusive;

• householder has provided advice in writing that they refuse to complete a Census form e.g. Con-Census letter; and

• householder has requested a Notice of Direction.

These are only exceptions and on a number of occasions the Area Supervisors did visit these households to offer assistance.”

At this stage there is no reason to re-evaluate the situation and it will be up to the court system to decide this case based on the facts as they are.

Regards
James Tuhan

2. Email to Mr James Tuhan in response to his email dated 8 August 2007.

7 September 2007 - 21 days prior to trial. Deadline by which the CDPP must submit their testimony by affidavit for the consideration of the Defendant.

18 September  2007 - 10 days prior to trial. Submit Letter to the Court and CDPP, telling them of my decision whether I will object to the Prosecution wanting just an affidavit testimony rather than a person.

21 September 2007 - 1 week prior to trial. No Status Conference.

26 September 2007 - Star affidavit obtained. Cannot disclose to public.

28 September 2007: 9.30 am - Trial Day. I rocked up at 9.15 am and greeted the Prosecution in person. The ABS had flown 3 persons from Canberra. We engaged in pleasantries, which I felt was genuine, but that would soon change when in Court. Once in Court, Magistrate Morris informed us that the trial would not go ahead to day due to other child abuse cases still in session. Understood. He was surprised that 3 ABS reps traveled from Canberra.

Trial adjourned till late November 2007. Local court will be supplemented with Magistrate from Adelaide. 15 cases to be heard back to back in late November that week. the CDPP and the ABS asked for priority at the time, presumably due to the reps needing to get back home rather than waiting on call.

5 October 2007 - Primary witness receives summons, 12 months after writing to the ABS asking to be prosecuted! They finally got off their act together. Overall defense reduced, but definitely not zeroed!! Anyone who takes a case like this is bound to open a can of worms which doesn't want to be opened.

5 November 2007 - Letter of Request to ask the Court to adjourn at a later time, after week of 26 November 2007 due to moving house and discovery of defense.

21 November 2007 - Served subpoena on Area Supervisor.

26 November 2007 - 10 AM - In Court for Trial. Prosecution starts, lays charges first. Calls up Renee Brown to act as prosecution witness. Lengthy. I was asked to cross examine. I wasn't prepared for this change, so it boiled down to lack of experience in court proceedings.

PRESENT DAY

Insert event

FUTURE TIME

RESOURCES FOR EMPOWERMENT:

1. ABS Media Release, 22 August 2006: Census on track and to finish soon. At the time of release, gives the numbers by State who have refused for whatever reason. See here

2. From our cousins in New Zealand - Census Prosecution Morally Wrong. NZ Libertarianz member and former candidate Nikolas Haden makes a stand. See here. Nik's follow up case reported here. Nik applies for discharge without conviction - here.

3. ABS falters in their communication to the Community. To understand something about the type of training that the ABS promotes and the subsequent brain washing that people receive and the earning of money for obvious needs of one person's survival means that the brain has to be disassociated with other human beings.

This training which "qualifies" them as highly trained experts able to deal with all manner of events and the lengths they will go through to uphold the company that employs them - this is appalling behavior from a professional government department! Though the person concerned had the wrong approach, its no wonder they resigned. Why? Could they not correlate their conscience with their actions past performed? Did the training they received effect the ability to relate? I wonder if a personal apology was made by the person to the concerned family. What does the family get instead? A department who passes the buck! Read the article here.

Play It Forward would like to remind departmentally programmed people who forget how to treat their fellow human beings that the buck STOPS here. If you did something wrong, admit it and offer a genuine apology. Then your conscience can be cleared and ready to deal with other things.

3. The Dynamic Duo. Two Queensland gentlemen refused the Census, i.e. answering 70 questions on the basis that the current Howard government has not legally obliged to answering the one question they have been asking them for 5 years! I am wanting to make contact with the two gentlemen in this article. Read the article here.

4. To Refuse is to be Prosecuted? Exactly how many "refusers" does the ABS actually prosecute? I have had many people tell me that they either weren't home, ripped it up and threw it in the bin etc yet they are not being prosecuted. This raises the question on why the ABS decides to prosecute some and not others.

Here is an interesting story of an aboriginal who was prosecuted in the Courts for failing to comply with the 1991 Census. At that time, S.14(1) had the "reasonable excuse" clause in it. Play It Forward Australia would like to see the ABS carry out their legislation in a consistent manner to the effect of prosecuting all or none at all. Considering that the ABS does not prosecute all and the ones they do prosecute - imagine the savings to taxpayers if they avoid the court system and instead sit down and reach a compromise with the householder. Read the article here.

5. And from New Zealand again. My these guys are an active lot! [webmaster considers moving Ed.] During the 2005 Census saw 92,000 New Zealanders not complete a form and 3,000 directly refused the Census. Only 72 were prosecuted. Read the article here.

"The government has no right to demand information from people under the threat of prosecution. Other countries are increasingly using alternatives to censuses to obtain what little information they really need without violating individuals' rights, and at considerably lower cost."

6. The Jedi Phenomenon. During 2005 an email which is believed to have originated in New Zealand circulated through many inboxes around the world stating that Jedi should be recognized as a religion.

"What we have is a classification, religious affiliation, which we do review," Nolan said. "What we generally do is have a look and see at various new religions and make a determination along with experts in religious studies as to whether these are religions or not."

..."but whether Jedi becomes a new category in the classification will depend more on other criteria, such as the existence of a formal organization structure rather than on number of responses."

Play It Forward Australia  has never condoned the Jedi (mind trick or otherwise) slant, but respects the right of individuals to say and do so. In the 2001 Census, in ignorance of the questions now brought to light, Play It Forward Australia complied honestly and truthfully to all questions asked then.

Play It Forward Australia sees the conscience of each individual the same as their religion. It is our conscience as manifested in 3D reality which indicates and reflects our religious beliefs. A religion is an outward expression of the conscious person inside. A theology or an external physical structure of the various religions out there in 3D reality, if it is willed by the individual, can also modify the conscience and thus the actions of the individual. The two are inseparable.

S.116 of the Australian Constitution also pays rightful credit to this simple fact. For a Census department or any other persons to even begin to classify the variances of conscious states of individuals based on nomenclature and with advice from so called "experts" in religious studies is appalling.  Experts deal with theological interpretation and should not exercise judgment upon or comment about other individuals conscience or outward religion, especially if they do not fall into predefined categories.

Consciousness and therefore conscience are not able to be categorized. Our actions towards others can yes. Moods which predicate action can yes. Emotions such as happiness, sadness, anger, selfishness, peaceful thoughts, contentment within ourselves and in our environment etc and all other ranges of emotions and feelings define us who we are. We are living religiously our conscience everyday.

Granted if a person says they are "Catholic", "Baptist", Buddhist" etc, then that is their choice (manifestation of notifying the rest of creation what creed/tenets/dogma they believe in) and no one has the right to challenge that choice (assuming adherence to good principles all round) lest they be judged accordingly. Remember though best rule of thumb - "I shall do as I say" and not "do as I say and not as I do" applies here.

The essence of the best values of any good religion is not to judge and therefore not to put people into groups by the act of classification. Therefore no legislation should condemn the person who doesn't feel the need to conform to classification by stating a particular religion as their religion and this includes actions based on conscience.  For the latter - their "religion" is their own conscience upon which they rely and they should have the liberty to say as such. A good person who does good things from beginning to end is a valuable member in any community. People are not attracted by theology, but by example. Positive actions towards others in all respects, which back up spoken words, would you not agree is indicative of a good conscience?

Save the prosecution, the Courts valuable time and the taxpayers money by prosecuting people whose conscience does not comply with the Pay It Forward principles, which is no doubt the foundation of all religions. And the basic principle is? "Feed my sheep" or "be good to my sheep". Another words - people around you. This is the protection that our christian-based Constitution affords us against legislation which effects our good conscience.

This is especially true when legislation like S.10(4) of the Census Act is enforced without the benefit of personal interaction and the amicable discussion of issues between Area Supervisors and the householder. This should be a great concern to all Australians when proper ABS policy is not followed and the good principle is negated.