Losalini Rainima has just completed a nine-month stint in a NSW prison for driving without a valid licence. This surprising punishment is the result of her of her refusal to accept conditional bail or, following her lengthy remand in custody, a good behaviour bond, or, following her sentence, the conditions of parole. Her refusal in each case was, I assume, for the same reason as her refusal to accept NSW’s driving licence regime. As she told her magistrate:
God has given me a right that is given to me, it’s within me. … I have a right of passage. I have a right of movement. All living things are given graces; the birds fly, the fish swim, the kangaroo hops, and I’ve been given the graces to drive.
She speaks, of course, of a right that Victorians have under the Charter, albeit given to them not by God but by the Victorian parliament:
12 Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
Appeals to divine law typically fall on deaf ears in courts, but her appeal was accompanied by s78B notices. There, she had the assistance of members of UPMART.
What is UPMART? Curiously, those members told Hidden J that UPMART wasn’t an acronym – perhaps it’s a discount chain? – and declined to say what the name meant. However, the arguments put in their s78B notice were curiously similar to those on the website of a Victorian organisation also called UPMART. Its site offers over twenty phrases spelt out with the letters U, P, M, A, R, T including ‘Unity Pulse of Marriage Assented by Rite of the Trinity’, ‘Universal People Measuring Abundance in Real Time’ (a variation of Time and Relative Dimensions in Space?) and, at the top of the list, ‘United People Movement Against Road Tolls’. They also offer quite a bargain: a driver’s licence that is immune to both fines and tolls and lasts for life. The catch: it’s not offered by VicRoads, but rather the common law. Indeed, the site contains this disclaimer:
PLEASE NOTE the initiatives of UPMART are based on the opinions of some of the members of UPMART, who are not legally qualified, but whose opinions are based on their knowledge of common law, constitutional law, natural law and bible codified common law. The initiative of common law vehicle registration is the most controversial of the initiatives and is presently not recognised by the laws of the states and Territories, and persons participating in this initiative may be exposed to prosecution under the laws of the state or Territory. It is alleged that this initiative is in conflict with State Statutes. Likewise other initiatives also challenge State and Territory laws.
UPMART’s lawyers may well find some surprising comfort, in relation to their views on the inalienability of the common law from state legislation, in the view of Victoria’s Solicitor-General, Pamela Tate, which has protected the common law from being affected by one state statute, the Charter.
Alas, UPMART’s support did not win the day for Ms Rainima. In Rainima v Magistrate Freund  NSWSC 944, Hidden J held:
As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.
But that’s nasty NSW. Why doesn’t UPMART bring a similar action in Victoria, where there is a distinction between parliamentary sovereignty and human rights?:
36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
There are a couple of catches though:
First, to make a challenge, UPMART will have to find someone who’s been driving while disqualified and faces (or has faced) criminal prosecution:
36(1) This section applies if- (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33; or (c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).
Second, if they find such a person, then they’ll have to convince the magistrate hearing the charge to apply this provision:
33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.
Third, they’ll have to convince the Supreme Court that the offence of driving without a licence limits Charter s. 12. Actually, that won’t be that hard. Just about every bit of the Road Safety Act limits Charter s. 12, one of the few Charter rights that is both broadly applicable and not hedged by internal limits. (Rainima might be inclined to try out Charter s. 14 too, but I don’t think that one’s likely to be a winner.)
Fourth, alas, they’ll also have to convince the Supreme Court that the offence of driving while disqualified fails this test:
7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including- (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Moreover, even if they manage that, the law will remain valid, meaning that they’ll still get convicted of the offence and will have to face the penalty. The Charter’s rights, including any right to drive without a licence, is a long way short of inalienable. Still, the court case will go quite a bit further than Rainima’s appeal in NSW.