Amateur Radio Licensing - Some Musings.

[Yorkie]

Pedantry is something else that's subjective but it's damned interesting whatever.

Any chance of Chapter and Verse on that bit of "International Law?"

- Joe

Strewth Joe, I didn't think anyone would actually read it!

Well you did ask, so here it is. I only quoted that bit of case law that I felt was relevant, but here it is in full:

Quote:

Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [20] et seq per Gleeson CJ
In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437., Mason CJ, Brennan, Gaudron and McHugh JJ said:

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."

The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson [1997] UKHL 37; [1998] AC 539 at 587, 589., Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

Unquote.

Ofcom, or rather its predecessor the now defunct Radiocommunications Agency, thought that the terms, conditions and limitations of the amateur radio licence could override the 'principle of proportionality', the UDHR, the ICCPR, the UN (of which the Inernational Telecommunication Union (ITU) is a subsidiary body) the Human Rights Act and case law. I had unfortunate dealings with the RA back in 2003, and couldn't believe their ineptitude, which stemmed from the fact that they were RF engineers with little knowledge of the law and were clueless when it came to interpreting the amateur radio licence terms correctly.

Hence, the licence as written was unnforceable, because if the Head of Enforcement couldn't understand it until he consulted a lawyer and learnt that his interpretation was incorrect, then how on earth could radio amateurs? Hence, the licence did not meet the requirement outlined in case law to be written in 'clear, unmistakeable and unambiguous terms'.

Freedom of Expression – ICCPR, (International Covenant of Civil and Poltical Rights), Article 19 states:

1) Everyone shall have the right to hold opinions without interference.

2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.

3) The exercise of the rights provided in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

• For respects to the rights and reputations of others
• For the protection of national security or public order, or of public health and morals

Note:

a) “Freedom to seek, receive, impart information and ideas of ALL kinds”. It does NOT state “except religion and politics”.

b) Either orally, in writing or in print.

“Orally” - on-air on amateur radio; or “in writing or print” - as with the amateur radio packet messaging system.

c) “Through any media of his choice” - there are no stated exceptions.

It does NOT say “any media except amateur radio”

d) “Regardless of frontiers”. (Anywhere in the free world).

You'll be sorry you asked!

All of the above of course refers to public bodies not being permitted to interfere with these fundamental rights. It has nothing to do with the running of an internet forum for example, in which the person who provides that facility can make as many rules and place as many restrictions upon users as they wish. It is then up to users whether they wish to operate within those rules or to go elsewhere. We're all free spirits, which is why I'm here - not somewhere else. The rules are sensble and proportionate, and sensibly applied. It's why we all rub along well together.

I have one very simple rule as to internet in all its forms - I'm choosy about the company I keep, so don't invite anyone onto my computer screen who I wouldn't invite into my home.

Whatever it is they want to sound off about, if I haven't read it, they haven't said it.