<http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2017/290.html>

I didn't realise until just now that this appeal existed, and had
overturned the previous District Court judgment. This related to the
police detaining for a time a young man over his (lawful) use of a
pensioner Opal card.

It nicely illustrates, I think, the tendency of courts to support the
Government's position if they can find a way to do so. The District
court tried to do the right thing, but got reversed.

It relates to the construction of the Passenger Transport Regulation
2007 (now repealed).

http://classic.austlii.edu.au/au/legis/nsw/repealed_reg/ptr2007339/s77c.html

"(2) The driver of a public passenger vehicle or an authorised officer
may direct a person.....to produce to the driver or authorised officer
evidence (for example, the person's pensioner or student concession
card) that the person is entitled to the concession ticket."

From the appeal judgement:

----

"14. Two issues arose as to the operation of subcl 77C(2). The first was
whether the officers were entitled to direct that the respondent produce
a driver licence, or some other form of photo identification, as
“evidence” that he was entitled to the concession ticket. One limb of
the argument appeared to be that the words in parentheses, although
commencing with the phrase “for example”, denoted the outer limits of
the power, so that production of either of the two concession cards
exhausted the scope of the power. Accordingly, the production of a
pensioner concession card was sufficient to satisfy the requirement
under subcl (2) and therefore provided the limit of the officer’s authority.

15. That reading of the subclause is not reasonably open. First, it
appears to substitute the word “either” for the phrase “for example” by
requiring that either one or other card was sufficient. Secondly, it
gives no work to the word “evidence”. That terminology is not readily
equated with a simple requirement to produce an appropriate concession
card."

----

The purported substitution does not occur. There is no reason to
construe the two examples given in the clause as being a complete list
of the kinds of evidence that might be produced, such that the
substitution of "either" is applicable. They are what they purport to be
- examples. It is not immediately clear what other evidence might be
involved, but that is not the point.

Once one gets rid of the substitution argument, the position that there
is no work for the word "evidence" falls away too.

Again from the judgement

----

"On the basis that that proposed limitation was unavailable, it was
submitted that the Court should consider whether the demand for further
identification was “reasonable”, according to some objective standard.
There are two answers to that submission. First, the purpose of the
subclause is to allow the officer to verify that the person who has
produced a concession ticket is entitled to it. No doubt the request for
further information must be made in good faith by an officer who did not
know who the ticket holder was.[11] However, where the production of the
concession card did not allow that link to be made, it was not
unreasonable of the officer to seek further evidence, which was provided
in the form of a date of birth."

----

The production of a concession card is never going to provide conclusive
proof that the person using a concession Opal card is the rightful
holder. Nevertheless that was an example given in (2). If it was the
intent of (2) that additional evidence in addition to the concession
card would be required, then it could have said that.

I used to have faith in the higher courts. Rather less so now.

Sylvia.

On 23/11/2021 8:06 pm, Sylvia Else wrote:
> <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2017/290.html>
>
>
> I didn't realise until just now that this appeal existed, and had
> overturned the previous District Court judgment. This related to the
> police detaining for a time a young man over his (lawful) use of a
> pensioner Opal card.
>
> It nicely illustrates, I think, the tendency of courts to support the
> Government's position if they can find a way to do so. The District
> court tried to do the right thing, but got reversed.
>
> It relates to the construction of the Passenger Transport Regulation
> 2007 (now repealed).
>
> http://classic.austlii.edu.au/au/legis/nsw/repealed_reg/ptr2007339/s77c.html
>
>
> "(2) The driver of a public passenger vehicle or an authorised officer
> may direct a person.....to produce to the driver or authorised officer
> evidence (for example, the person's pensioner or student concession
> card) that the person is entitled to the concession ticket."
>
> From the appeal judgement:
>
> ----
>
> "14. Two issues arose as to the operation of subcl 77C(2). The first was
> whether the officers were entitled to direct that the respondent produce
> a driver licence, or some other form of photo identification, as
> “evidence” that he was entitled to the concession ticket. One limb of
> the argument appeared to be that the words in parentheses, although
> commencing with the phrase “for example”, denoted the outer limits of
> the power, so that production of either of the two concession cards
> exhausted the scope of the power. Accordingly, the production of a
> pensioner concession card was sufficient to satisfy the requirement
> under subcl (2) and therefore provided the limit of the officer’s
> authority.
>
> 15. That reading of the subclause is not reasonably open. First, it
> appears to substitute the word “either” for the phrase “for example” by
> requiring that either one or other card was sufficient. Secondly, it
> gives no work to the word “evidence”. That terminology is not readily
> equated with a simple requirement to produce an appropriate concession
> card."
>
> ----
>
> The purported substitution does not occur. There is no reason to
> construe the two examples given in the clause as being a complete list
> of the kinds of evidence that might be produced, such that the
> substitution of "either" is applicable. They are what they purport to be
> - examples. It is not immediately clear what other evidence might be
> involved, but that is not the point.
>
> Once one gets rid of the substitution argument, the position that there
> is no work for the word "evidence" falls away too.
>
> Again from the judgement
>
> ----
>
> "On the basis that that proposed limitation was unavailable, it was
> submitted that the Court should consider whether the demand for further
> identification was “reasonable”, according to some objective standard.
> There are two answers to that submission. First, the purpose of the
> subclause is to allow the officer to verify that the person who has
> produced a concession ticket is entitled to it. No doubt the request for
> further information must be made in good faith by an officer who did not
> know who the ticket holder was.[11] However, where the production of the
> concession card did not allow that link to be made, it was not
> unreasonable of the officer to seek further evidence, which was provided
> in the form of a date of birth."
>
> ----
>
> The production of a concession card is never going to provide conclusive
> proof that the person using a concession Opal card is the rightful
> holder. Nevertheless that was an example given in (2). If it was the
> intent of (2) that additional evidence in addition to the concession
> card would be required, then it could have said that.
>
> I used to have faith in the higher courts. Rather less so now.
>

It comes down to an interpretation of the what the words mean. Do the
examples given mean they are examples of *sufficient* evidence, or are
they just examples of evidence?

I read it so that they are just examples of evidence.

Any author of good books will tell you that meaning is not conveyed by
dissecting sentences word by word. Language is not like that.

Fuck OFF Max the Fucking IDIOT wrote:
===========================

** FFS piss off -- you bullshitting TROLL

Sylvia is a raving nut case with the excuse of being autistic

- while YOU are worse !

==============================================

On 23-Nov-21 11:02 pm, Max wrote:
> On 23/11/2021 8:06 pm, Sylvia Else wrote:
>> <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2017/290.html>
>>
>>
>> I didn't realise until just now that this appeal existed, and had
>> overturned the previous District Court judgment. This related to the
>> police detaining for a time a young man over his (lawful) use of a
>> pensioner Opal card.
>>
>> It nicely illustrates, I think, the tendency of courts to support the
>> Government's position if they can find a way to do so. The District
>> court tried to do the right thing, but got reversed.
>>
>> It relates to the construction of the Passenger Transport Regulation
>> 2007 (now repealed).
>>
>> http://classic.austlii.edu.au/au/legis/nsw/repealed_reg/ptr2007339/s77c.html
>>
>>
>> "(2) The driver of a public passenger vehicle or an authorised officer
>> may direct a person.....to produce to the driver or authorised officer
>> evidence (for example, the person's pensioner or student concession
>> card) that the person is entitled to the concession ticket."
>>
>>  From the appeal judgement:
>>
>> ----
>>
>> "14. Two issues arose as to the operation of subcl 77C(2). The first
>> was whether the officers were entitled to direct that the respondent
>> produce a driver licence, or some other form of photo identification,
>> as “evidence” that he was entitled to the concession ticket. One limb
>> of the argument appeared to be that the words in parentheses, although
>> commencing with the phrase “for example”, denoted the outer limits of
>> the power, so that production of either of the two concession cards
>> exhausted the scope of the power. Accordingly, the production of a
>> pensioner concession card was sufficient to satisfy the requirement
>> under subcl (2) and therefore provided the limit of the officer’s
>> authority.
>>
>> 15. That reading of the subclause is not reasonably open. First, it
>> appears to substitute the word “either” for the phrase “for example”
>> by requiring that either one or other card was sufficient. Secondly,
>> it gives no work to the word “evidence”. That terminology is not
>> readily equated with a simple requirement to produce an appropriate
>> concession card."
>>
>> ----
>>
>> The purported substitution does not occur. There is no reason to
>> construe the two examples given in the clause as being a complete list
>> of the kinds of evidence that might be produced, such that the
>> substitution of "either" is applicable. They are what they purport to
>> be - examples. It is not immediately clear what other evidence might
>> be involved, but that is not the point.
>>
>> Once one gets rid of the substitution argument, the position that
>> there is no work for the word "evidence" falls away too.
>>
>> Again from the judgement
>>
>> ----
>>
>> "On the basis that that proposed limitation was unavailable, it was
>> submitted that the Court should consider whether the demand for
>> further identification was “reasonable”, according to some objective
>> standard. There are two answers to that submission. First, the purpose
>> of the subclause is to allow the officer to verify that the person who
>> has produced a concession ticket is entitled to it. No doubt the
>> request for further information must be made in good faith by an
>> officer who did not know who the ticket holder was.[11] However, where
>> the production of the concession card did not allow that link to be
>> made, it was not unreasonable of the officer to seek further evidence,
>> which was provided in the form of a date of birth."
>>
>> ----
>>
>> The production of a concession card is never going to provide
>> conclusive proof that the person using a concession Opal card is the
>> rightful holder. Nevertheless that was an example given in (2). If it
>> was the intent of (2) that additional evidence in addition to the
>> concession card would be required, then it could have said that.
>>
>> I used to have faith in the higher courts. Rather less so now.
>>
>
> It comes down to an interpretation of the what the words mean.  Do the
> examples given mean they are examples of *sufficient* evidence, or are
> they just examples of evidence?
>
> I read it so that they are just examples of evidence.
>
> Any author of good books will tell you that meaning is not conveyed by
> dissecting sentences word by word. Language is not like that.

That is true, and there is case law on that. Still, I think courts
ignore it unless it advances the conclusion they want to reach.

However, the regulation doesn't say "sufficient evidence" it just says
evidence. It may not be possible for the passenger to produce sufficient
evidence.

Clause (3) makes it an offence not to produce the evidence. If the
police were able to dictate what evidence is to be produced, or keep
demanding further evidence, then they could always trigger clause (3).

Eventually the passenger in this case was asked his date birth, which he
provided, and the police used this to do some checking. Yet clause (2)
doesn't talk about evidence that the police can use to check, it talks
about evidence that the passenger is entitled to the concession ticket.

It is also worth nothing that we're not talking about the crime of the
century here. In my view the clause envisaged the passenger producing
something that immediately indicates that they're entitled to the
concession, such that there is minimal delay. It did not envisage
empowering the police to start a inquiry into a possible criminal offence.

It's a shame this didn't go to the High Court. This raises another
point. The court of appeal knows very well that if they find against the
government, there's quite probably going to be an appeal to the High
Court, and a possible reversal. On the other hand, if they find for the
government, the matter will probably end there.

Sylvia.

On 24/11/2021 10:45 am, Sylvia Else wrote:
> On 23-Nov-21 11:02 pm, Max wrote:
>> On 23/11/2021 8:06 pm, Sylvia Else wrote:
>>> <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2017/290.html>
>>>
>>>
>>> I didn't realise until just now that this appeal existed, and had
>>> overturned the previous District Court judgment. This related to the
>>> police detaining for a time a young man over his (lawful) use of a
>>> pensioner Opal card.
>>>
>>> It nicely illustrates, I think, the tendency of courts to support the
>>> Government's position if they can find a way to do so. The District
>>> court tried to do the right thing, but got reversed.
>>>
>>> It relates to the construction of the Passenger Transport Regulation
>>> 2007 (now repealed).
>>>
>>> http://classic.austlii.edu.au/au/legis/nsw/repealed_reg/ptr2007339/s77c.html
>>>
>>>
>>> "(2) The driver of a public passenger vehicle or an authorised
>>> officer may direct a person.....to produce to the driver or
>>> authorised officer evidence (for example, the person's pensioner or
>>> student concession card) that the person is entitled to the
>>> concession ticket."
>>>
>>>  From the appeal judgement:
>>>
>>> ----
>>>
>>> "14. Two issues arose as to the operation of subcl 77C(2). The first
>>> was whether the officers were entitled to direct that the respondent
>>> produce a driver licence, or some other form of photo identification,
>>> as “evidence” that he was entitled to the concession ticket. One limb
>>> of the argument appeared to be that the words in parentheses,
>>> although commencing with the phrase “for example”, denoted the outer
>>> limits of the power, so that production of either of the two
>>> concession cards exhausted the scope of the power. Accordingly, the
>>> production of a pensioner concession card was sufficient to satisfy
>>> the requirement under subcl (2) and therefore provided the limit of
>>> the officer’s authority.
>>>
>>> 15. That reading of the subclause is not reasonably open. First, it
>>> appears to substitute the word “either” for the phrase “for example”
>>> by requiring that either one or other card was sufficient. Secondly,
>>> it gives no work to the word “evidence”. That terminology is not
>>> readily equated with a simple requirement to produce an appropriate
>>> concession card."
>>>
>>> ----
>>>
>>> The purported substitution does not occur. There is no reason to
>>> construe the two examples given in the clause as being a complete
>>> list of the kinds of evidence that might be produced, such that the
>>> substitution of "either" is applicable. They are what they purport to
>>> be - examples. It is not immediately clear what other evidence might
>>> be involved, but that is not the point.
>>>
>>> Once one gets rid of the substitution argument, the position that
>>> there is no work for the word "evidence" falls away too.
>>>
>>> Again from the judgement
>>>
>>> ----
>>>
>>> "On the basis that that proposed limitation was unavailable, it was
>>> submitted that the Court should consider whether the demand for
>>> further identification was “reasonable”, according to some objective
>>> standard. There are two answers to that submission. First, the
>>> purpose of the subclause is to allow the officer to verify that the
>>> person who has produced a concession ticket is entitled to it. No
>>> doubt the request for further information must be made in good faith
>>> by an officer who did not know who the ticket holder was.[11]
>>> However, where the production of the concession card did not allow
>>> that link to be made, it was not unreasonable of the officer to seek
>>> further evidence, which was provided in the form of a date of birth."
>>>
>>> ----
>>>
>>> The production of a concession card is never going to provide
>>> conclusive proof that the person using a concession Opal card is the
>>> rightful holder. Nevertheless that was an example given in (2). If it
>>> was the intent of (2) that additional evidence in addition to the
>>> concession card would be required, then it could have said that.
>>>
>>> I used to have faith in the higher courts. Rather less so now.
>>>
>>
>> It comes down to an interpretation of the what the words mean.  Do the
>> examples given mean they are examples of *sufficient* evidence, or are
>> they just examples of evidence?
>>
>> I read it so that they are just examples of evidence.
>>
>> Any author of good books will tell you that meaning is not conveyed by
>> dissecting sentences word by word. Language is not like that.
>
> That is true, and there is case law on that. Still, I think courts
> ignore it unless it advances the conclusion they want to reach.
>
> However, the regulation doesn't say "sufficient evidence" it just says
> evidence. It may not be possible for the passenger to produce sufficient
> evidence.
>

I read it that the officer may direct the passenger to supply evidence
sufficient to prove the passenger is entitled to the concession ticket.
'Sufficient' is implied in my view, but I accept that another reading
is possible.

There's only a certain amount of time and money that can go into
drafting legislation, so it's not always going to be perfect and
umabiguous.

A case like this might feed back into the drafting process, and you
mentioned that the legislation is now repealed. How does the replacement
legislation treat this issue?

> Clause (3) makes it an offence not to produce the evidence. If the
> police were able to dictate what evidence is to be produced, or keep
> demanding further evidence, then they could always trigger clause (3).
>
> Eventually the passenger in this case was asked his date birth, which he
> provided, and the police used this to do some checking. Yet clause (2)
> doesn't talk about evidence that the police can use to check, it talks
> about evidence that the passenger is entitled to the concession ticket.
>
> It is also worth nothing that we're not talking about the crime of the
> century here. In my view the clause envisaged the passenger producing
> something that immediately indicates that they're entitled to the
> concession, such that there is minimal delay. It did not envisage
> empowering the police to start a inquiry into a possible criminal offence.
>
> It's a shame this didn't go to the High Court. This raises another
> point. The court of appeal knows very well that if they find against the
> government, there's quite probably going to be an appeal to the High
> Court, and a possible reversal. On the other hand, if they find for the
> government, the matter will probably end there.
>
> Sylvia.