H J AMES J OHNSON

HUMAN RIGHTS § CIVIL RIGHTS § CORRUPTION § MEDIA

D EFA M AT I O N § P R O F E S S I O N A L N E G L I G E N C E L AW
1 S T F L O O R 1 4 1 O S B O R N E S T R E E T S O U T H YA R R A V I C T O R I A 3 1 4 1
TELEPHONE: +613 9279 3932 FA C S I M I L E : + 6 1 3 9 2 7 9 3 9 5 5

Saturday 10 October 2009 *** IMPORTANT COMMUNICATION

Ms Helen Szoke
Victorian Equal Opportunity and Human Rights
Commissioner
Level 3, 380 Lonsdale Street
Melbourne Victoria 3000

By Facsimile: 9281 7171

And By Registered Post

Dear Victorian Human Rights Commissioner

UN TOLD 'FAMILY LAW COURTS ABUSING ONE MILLION AUSTRALIAN'S HUMAN RIGHTS
LAWYERS VERSUS LAWYER – BIGGEST HUMAN RIGHTS CASE OF THE CENTURY? -
VICTORIAN SUPREME COURT PROCEEDINGS 9665 OF 2007, 9263 AND 10222 OF 2008
AND 3731 AND 3366 OF 2009

1. Thank you for your letter of 1 October 2009 (copy attached) which I received yesterday (the
delay being due to forces that I have explained previously to your Office).

2. Now that you have provided reasons for your decision we are able to have intelligent
correspondence on the issues raised in my Notice under section 35 of the Charter of Human
Rights and Responsibilties Act.

3. I am pleased (especially against the backdrop of the Federal Attorney-General's and the
Victorian Attorney-General's) very public comments about the woeful state of our legal and
judicial systems, to explain to you very simply why these proceedings that I have intiated
are of earthshattering significance as a matter of domestic and international human rights
laws..

4. I attach a copy of my letter of 25 September 2009 as you should re-read that letter once you
have read this one.

Page 1
5. I refer to the third paragraph of your letter and wish for present purposes to focus your
attentions on just 3 of the 32 significant issues raised at paragraph 3 of my Section 35 Notice.

6. But first, a preliminary (4th / 33rd) reason why you are obliged to intervene in these
proceedings in accordance with section 40 of the Victorian Charter.

First Ground [Raise by your letter of 1 October 2009] - “may” means “must”
7. You write in the third paragraph of your letter that “The Commissioner's power [to intervene in
proceedings in accordance with section 40 of the Charter] is a discretionary power and the
Commissioner is never compelled to intervene in a particular matter.

8. I regret to shatter your delusions on this threshhold point of law that is 'significant and not
peripheral” and has “significant implications for the ongoing interpretation ... of the Charter”
and its “... application, implementation and/or operation” and thus “... significantly affect[s] the
Charter rights of [all Australian human] persons who are not parties to the proceedings. In
other words, this First Ground ticks with large font all four of the criteria you list in the third
paragraph of your letter.

9. It is trite law that “Unfortunately it is impossible to state a universally applicable general rule to
inform the reader of a statute with certainty as to whether a particular provision is mandator
or directory. ... Even in the case of the words “may” and “shall” (“may” prima facie indicating a
directory provision and “shall” indicating a mandatory one) the courts have refused to decide
the matter by the simple mechanical application of a rule.” (Gifford on Statutory
Interpretation, First Ed, 1990, at pages 195 to 197 – see Chapter 39 in particular, and
Chapters 1 - 38, generally).

10. It is necessary to construe the whole of the Act to determined whether “may” is discretionary
or indeed mandatory. It is also necessary to give proper weight to the objects of the
legislation. So far as your Office is concerned (and indeed created) the Charter is an
enabling Act. “An enabling Act is, of course, an Act which enables something to be done by a
specific person or body or by a specific class of persons or bodies. It has been held that such
an Act, designed to provide a remedy for aggrieved citizens, should not be construed
narrowly: Deputy Commissioner of Taxation (Qld) v Clarke & Kann (1984) 52 ALR 603 at 608,
per cur (FCA FC).” (Gifford, op cit at page 168). See also Victoria v Commonwealth

Page 2
 (1975) 134 CLR 81 at 179 and 180 (per Stephen J, (HCA); See also Cole v Esanda Ltd
(1982 Tas R 130 at 133 (Tas SC); See also R v Mesiti [1984] WAR 21 at 22-24 (WA SC).

11. Firstly, the issue of whether your power to intervene is mandatory or compulsory is
fundamental to the operation etc of the Charter.

12. Secondly, there is a 'sub-ground' to this 'First Ground'. Even if my interpretation of your
power to intervene is incorrect as a general proposition, this still leaves the question whether
having regard to the objects of the Charter, [which is no ordinary Act of Parliament], and the
role that your Office plays under it [to provide a mechanism for remedy for aggrieved citizens]
it is a failure by your Office to intervene in these proceedings having regard to the issues in
the proceedings.

Second, Third and Fourth Grounds [extracted from my Section 35 Notice]

13. My Section 35 Notice lists 32 important “factors” [to adopt the terminology of your letter] as to
why you should intervene in these proceedings.

14. For present purposes, I ask that your Office just focus on the three biggest of them. Each of
these 'Big Three' ticks all four of the criteria listed by you in the third paragraph of your letter.
Of course, this is nothing that I haven't tried to explain to your Office several times over the
course of this year.

Second Ground - Resolution of conflict between “Equality under the Law” [Human
Right Number (Section) 8] versus “Australian Wig Supremecy Laws” (Gianarelli v
Wraith and D'Orta Edenke v Victorian Legal Aid)
15. I refer you to paragraphs 2(a)(xxiii) and (xxiv) of my Section 35 Notice, where I pose this
question a little more elegantly:

(“xxiii) In 2005 the Australian legal profession (via the six highest ranking legal
professionals in Australia – in the near unanimous Full High Court decision in
Victoria Legal Aid v D'orta-Edenke [Justice Kirby dissenting on constitutional
and moral and logical grounds, not to mention plain common sense] contrary to
legal and human rights developments in every other Englsh common law country,
voted the Australian legal profession a continuing and expanded common law

Page 3
 licence to commit professional negligence in the Court room with impunity and
extended that licence to 'licence to ccover negligence committed by solicitors and
barristers in preparation for litigation (a blanket immunity for litigation barristers
and solicitors. To what extent, if any, by virtue of the Charter or by virtue of Any
Other Law has the Parliament of Victoria or the Federal Parliament of Australia
cancelled that common law licence for Australian legal professionals to commit
negligence against other Australian's without fear of being held legally accountable
for their wrong doing?
(xxiv) Did the scope of the common law licence given by the Australian legal profession
only to members of its profession in the 'D'orta-Edenke decision ever extend to
include licences to commit contempts of the State and Federal Parliaments and
Courts of this land, licences to commit malicious defamation (even of fellow
Australian legal professionals), and to engage in champetery, fraud, maintenance
and more extreme forms of extortion and blackmail (even against fellow Australian
legal professionals) and, if so, to what extent, if any, by virtue of the Charter or by
virtue of Any Other Laws has the Parliament of Victoria or the Federal Parliament
of Australia cancelled that common law licence for Australian legal professionals to
commit negligence against other Australian's without fear of being held legally
accountable for their wrong doing?”

16. The short answers are that:

 The right to equality under the law is a basic human right recognised by the Courts for
centuries (beginning at least as early as the “King John version” of the bill of rights – aka
Magna Carta).
 The Common law position that barristers and (by extension in 2005) litigation lawyers
cannot be held legally accountable in a Court of law for their professionally negligent
wrongdoing is incompatible with this basic notion of 'equality [of all] under the law' as it
smacks of some [our legal elite] being 'more equal than others'.
 As High Court Justice Kirby (as he then was) pointed out in his dissenting judgement in
2005 in D'Orta-Edenke v Victoria Legal Aid and Anor this position is illogical and
unconstitional and out of step with the developments in the common law [supremecy of
'equality before the law' over the
 The United Kingdom (the historical source of all Australian common law and proginator of
much of our parliamentary laws too – eg Magna Carta and the UK Bill of Rights of 1688

Page 4
 (both of which apply today throughout Australia and our external territories, and even in
the United States of America and its external territories (such as Guatanamo Bay). In
2000 the highest Court in the United Kingdom determined 11 Law Lords to nil that the
common law rule that barristers could not be sued for their professionally negligent acts
was inconsistent with the common law recognised human right of 'equality [of all] before
the law.' I attach a copy of the House of Lords decision in that case. The decision was
also assisted by the recent introduction (via membership of the European Economic
Community) of parliamentary laws (akin to our Victorian Charter of Human Rights and
Responsiblities Act)
 These Johnson v Cressy & Ors proceedings in the Court of Appeal, provide the first
opportunity for the Supreme Court [and indeed if need be the High Court of Australia] to
reconsider this conflict between the new Parliamentary human right to 'equality before the
law' and the old common law human rights to 'equality before the law' and the
irreconcilable common law rule of 'barristers immunity for professional negligence.'
 I have no doubt that as a result of these proceedings, and the public sentiments reflected
in recent public admissions by the Federal Attorney General and the Victorian Attorney-
General regarding 'Sharks with Wigs' and 'Lawyers let you down', that the Victorian
Supreme Court [and if need be the High Court of Australia] will bring abolish the
“barristers immunity for professional negligence” as incompatible with the basic
parliamentary and common law human right of 'equality before the law'.

17. This common law development (even if confined to Victoria and perhaps the Australian
Capital Territory as being the sole 'States' with human rights charters' is significant in terms of
all 4 of the factors listed in the third paragraph of your letter. It is 'significant and not
peripheral” and has “significant implications for the ongoing interpretation ... of the Charter”
and its “... application, implementation and/or operation” and thus “... significantly affect[s] the
Charter rights of [all Australian human] persons who are not parties to the proceedings. In
other words, this First Ground ticks with large font all four of the criteria you list in the third
paragraph of your letter.

18. I attach a copy of my April 2008 Media Statement 'Australian Laws, Courts and
Regulators Protect Rogue Lawyers' which contains more pertinent information about this
ground on which you are statutorily obliged to intervene (for the good) in these proceedings.

Page 5
 Third Ground – Affirmation of “Right to a fair hearing” [Human Right Number (Section)
24]
19. Both the Full High Court and the Chief Justice of Victoria have, in separate decisions in
recent months, confirmed that the “right to a fair hearing” is another fundamental human right
recognised by the common law, even without regard to section 24 of the Victorian Charter:
see per the Full High Court in Aon v ANU (unreported decision of August 2009 – especially
per French CJ) and per the Victorian Supreme Court in Re an application under the Major
Crime (Investigative Powers) Act 2004 (unreported decision 7 September 2009).

20. However, as the facts summarised in paragraph 3 of my Section 35 Notice demonstrate (see
paragraphs 3 (xix) to (xxv) Cressy v Johnson is a frightening example of the anti-thesis of a
“fair hearing”.

21. In Cressy v Johnson the Trial Judge has set a precedent that down-grades a citizen's right to
defend himself from a basic human right to a mere privilege which can be taken away from
him on the motion of a plaintiff. Just imagine if in every legal proceedings from now on begin
with the plaintiff seeking to win their case by gagging the defendant from making a defence,
by making an unlawful application to have the defendant declared mentally unfit.

22. The obscenity of this application is made even more obscene given that, the Trial judge
approved the plaintiff's counsel using a court rule intended to be available to a defendant to
use as a shield in order to facilitate a fair hearing into a weapon the likes of which were a
feature of Nazi and Stalinist show trials. The obscenity factor is magnified by the fact that, in
this instance, the defendant was a prominent member of the Australian legal profession of 19
years good standing at the top tier of the profession.

23. I shall include with the attachments a copy of my letter of even date to the judges and legal
representatives and statutory oligarchs involved in these proceedings that sets out (just) the
ten top reasons that the Trial Judge failed to provide the defendant in Cressy v Johnson
(namely, me) with a “fair hearing”.

24. In this respect, the Trial Judge decision in Cressy v Johnson is a frightening common law
development, incompatible with the common law right to a “fair hearing” (indeed, incompatible

Page 6
 with a “right” to any “hearing” at all) not to mention incompatible with the section 24 human
right to a fair hearing under section 24 of the Victorian Charter.

25. This common law development (even if confined to Victoria and perhaps the Australian
Capital Territory as being the sole 'States' with human rights charters' is significant in terms of
all 4 of the factors listed in the third paragraph of your letter. It is 'significant and not
peripheral” and has “significant implications for the ongoing interpretation ... of the Charter”
and its “... application, implementation and/or operation” and thus “... significantly affect[s] the
Charter rights of [all Australian human] persons who are not parties to the proceedings. In
other words, this First Ground ticks with large font all four of the criteria you list in the third
paragraph of your letter.

Third Ground – To What Extent Are Victoria's Courts and Judges legally (not just
ethically and morally) bound by human rights responsibilities under the Charter

26. This important question of interpretation of the Charter is 'significant and not peripheral” and
has “significant implications for the ongoing interpretation ... of the Charter” and its “...
application, implementation and/or operation” and thus “... significantly affect[s] the Charter
rights of [all Australian human] persons who are not parties to the proceedings. In other
words, this Third Ground ticks with large font all four of the criteria you list in the third
paragraph of your letter.

27. This question arises because the definition of 'public authority' in section 4 of the Charter
does not universally include Victoria's Courts and Judges.

28. It would seem obvious that everything done by a Victorian Judge in the Practice Court and
the Masters Court jurisdictions constitutes an administrative action akin to “a bail court”
[which is expressly counted as a 'public authority'] and thus the presiding Judge is impressed
with human rights responsiblities under the Charter.

29. One would think that on analagous questions of procedure and procedural decisions in the
two higher houses of the Supreme Court (being the Trial Division and the Court of Appeal),
the presiding Judge(s) are within the scope of the 'public authority' definition in section 4 of

Page 7
 the Charter and are thus impressed by the Charter with these statutory human rights
responsiblities.

30. There are also sub-grounds to this Third Ground. For example:

 If/To the extent that Judges in the Trial Division and the Court of Appeal Division of the
Supreme Court are not impressed with statutory human rights responsibilites under the
Charter, to what extent are parliaments human rights laws morally persuasive and to be
observed by those Judges?
 If/To the extent that Judges in the Trial Division and the Court of Appeal Division of the
Supreme Court are not impressed with statutory human rights responsibilites under the
Charter, to what extent does the Court as a matter of its own judge-made common laws,
replicate for itself the Parliamentary made human rights responsibility laws (the Charter)
that apply to the non-judicial arms of Government?

31. This point of law is 'significant and not peripheral” and has “significant implications for the
ongoing interpretation ... of the Charter” and its “... application, implementation and/or
operation” and thus “... significantly affect[s] the Charter rights of [all Australian human]
persons who are not parties to the proceedings. In other words, this First Ground ticks with
large font all four of the criteria you list in the third paragraph of your letter.

Conclusion
32. The Victorian Attorney-General has spoken out with great moral courage about the need for
cultural change within Victoria's judiciary and lawyers. The starting point must be:

 abolition of the “barristers immunity for professional negligence”; and

 insistence on the Courts accepting primary responsibility to lead by example in the
introduction and application of basic human rights laws and protections for citizens.

33. These Johnson v Cressy & Ors proceedings provide a historic and overdue opportunity for
the Courts to cultivate cultural change from within.

34. We cannot have effective human rights laws in Victoria or Australia while our lawyers
(solicitors, barristers and judges) stand accused of being the primary perpetrators of human

Page 8
 rights abuses and exploitation in this Country – human rights game 'keepers' turned poachers
and predators to borrow my Geoffrey Robertson style description of the reality.

35. As the peak agency responsible for the introduction and application of human rights in this
State, you have a pivotal role and an urgent statutory responsibility to positively intervene
and support the cultural change and common law developments described in this letter.

36. If you fail to step up to these challenges, rest assured that the (il-)legality of your anti-human
rights decisions will be fully exposed and examined in the law courts and in the courts of
public opinion.

37. I encourage you to reconsider your organsations responses. I am more than happy that we
simply forget your past mistakes and get on with the historic process of dealing properly with
my human rights situation (that is, identifying, quarantining, and over time managing the
human rights abuses that I have exposed by becoming one of the million innocent victims). I
strongly believe in giving second (and third) chances, in education and understanding rather
than heavy handed responses from the lawyers arsenal of litigation, regulatory complaints,
media, etc etc.

38. I repeat my offer to meet with you and/your staff if that will assist you to understand your
human rights responsibilities under the Charter, and the reasons set out in my Section 35
Notice as well as the 4 highlighted above, as to why you have a human rights responsibility
to intervene as a positive force in these proceedings.

Kind regards

JAMES JOHNSON

Attachments:

(1) Copy Victorian Human Rights Commissioner's letter to me of 1 October 2009.

(2) Copy my letter the the Victorian Human Rights Commissioner dated 25 September 2009

Page 9
(3) Copy of AJ Mitchell & Son decision

(4) Copy April 2009 Media Release 'Australia's Laws, Courts and Regulators Protect Rogue
Lawyers'

(5) Copy my letter of 10 October 2009 to the judges and legal representatives and statutory
oligarchs involved in these proceedings that sets out (just) the ten top reasons that the Trial
Judge failed to provide the defendant in Cressy v Johnson (namely, me) with a “fair hearing”
(covering letter and schedule 2 only).

Page 10