21 December 2018

Fake Indigenous Cultural Expression

The Commonwealth House of Reps Standing Committee on Indigenous Affairs has released its report on The impact of inauthentic art and craft in the style of First Nations peoples

The title is an innovation; The Committee states
The words ‘First Nations’, ‘Indigenous’ and ‘Aboriginal and Torres Strait Islander’ are used interchangeably in this report to refer to the Aboriginal and Torres Strait Islander peoples of Australia and their art and cultures. 
While the committee understands that some Aboriginal and Torres Strait Islander peoples may not feel comfortable with some of these words, we only mean to convey respect through the use of these words. 
The Committee was to
Inquire into and report on the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, including:
  • the definition of authentic art and craft products and merchandise; 
  • current laws and licensing arrangements for the production, distribution, selling and reselling of authentic Aboriginal and Torres Strait Islander art and craft products and merchandise; 
  • an examination of the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market;  
  • options to promote the authentic products for the benefit of artists and consumers; and 
  • options to restrict the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market.
The Chair's Forward states
Our First Nations peoples have been the guardians of their country and culture for thousands of years. It is an ethical and moral demand that we assist this process into the future.
First Nations art and craft is not simply a collection of design elements in some artistic media presentation. They are in fact a representation of cultural songlines. Art is therefore integral to the cultural identity, stories and history of First Nations peoples. It is about a continuous celebration and preservation of that history and cultures, which underpins all of the issues raised.
An extraordinary statistic that emerged from the evidence received is that 80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact imitation products. These inauthentic items have no connection to First Nations peoples and are often cheaply made imports.
The committee’s own observations during several visits to gift shops in popular tourist areas of Sydney were consistent with this overwhelming statistic. What also became clear during this inquiry is that most buyers of these souvenirtype products are likely unaware that they are predominantly inauthentic. Indeed most non-Indigenous Australians and visiting tourists cannot readily distinguish authentic First Nations art and craft from imitation products.
There are two key elements that contribute to this situation. The first is that there is no accepted industry standard for authenticity, which is largely reflected by the confusing and sometime deliberately misleading presentation and labelling of these products. The second is that there is a clear lack of effective education about authenticity throughout the supply chain for First Nations art and craft, from the manufacturer to the point of sale.
First Nations artists and their communities feel completely disrespected and cheated by what is going on at the moment, particularly in the souvenir trade. They feel that their cultures are being stolen through the supply of these imitation products. In addition, they are being denied the opportunity to make a living from the obvious interest and market demand for First Nations art and craft.
This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money. They demean the rich and ancient history of Australia’s Indigenous peoples. These items have a profound and harmful effect on First Nations peoples. They do not teach or inform the buyer about Indigenous heritage as they have no connection to it. Beyond the immediate consequences mentioned above, this situation has a negative impact on Australia’s image abroad.
Four fundamental points must be stressed:
  • First Nations art, craft and cultural expressions belong to First Nations peoples. Non-Indigenous artists and artisans should not appropriate or copy this expression in any way, even with good intentions. 
  • Whilst producing and selling imitation First Nations art and craft is not unlawful, it has a negative impact on the integrity of the ancient cultural heritage of First Nations peoples.  
  • Any inauthentic piece of Indigenous art, craft or artefact such as a boomerang or didjeridu not made by a First Nations artist is by its very nature and existence purporting to be culturally authentic when it is not. 
  • First Nations cultures are an intrinsic part of Australian culture and allowing it to be compromised damages the identity of our nation as a whole.
First Nations fine art does not appear to be affected by authenticity issues to the same extent as the souvenir trade. This is due in part to the buyers being more discerning and the need for galleries to protect their reputation by ensuring the provenance of more expensive artworks. There are still troubling issues in this part of the market however such as alleged carpetbagging by unscrupulous dealers and unethical practices by some galleries.
There are of course other examples of individuals and businesses making outstanding contributions to safeguarding Indigenous cultural expressions. Among these are the First Nations art centres which provide opportunities for Indigenous artists, fostering and preserving their heritage. The Indigenous Art Code does an impressive job of trying to get businesses to adopt its voluntary code of practice, and thus behave ethically and responsibly in the sale of Indigenous art and craft.
They need more help however. Many art centres struggle to retain qualified staff due to lack of infrastructure and housing. This has a hugely negative impact on them as a business. They also need greater access to business development expertise. As many of these centres operate in very remote areas, there are obvious social and economic benefits to growing these businesses.
The Indigenous Art Code has only one staff member and cannot fulfil its mandate with such little resourcing, although it has done a remarkable job to date in spite of this.
There is huge potential for great outcomes in First Nations communities with the right assistance to these key entities and the right policies in place. Another policy area of particular interest was the effectiveness of existing copyright and consumer laws to provide protections for First Nations cultural expressions, including art and craft. Current copyright laws are designed to protect the artistic and intellectual output of an individual over a period of several decades, but not ancient and typically communal ownership of cultural expressions.
In terms of consumer law, the ACCC can take action against a company for intentionally misleading its customers about authenticity through the use of information such as labels. It cannot take action however for imitation products that are not explicitly claiming to be authentic.
First Nations cultural expressions will likely need a new and separate framework to be protected under law. The committee understands that this would be a long and complex task but believes that it is achievable and that a consultation process should be started next year.
The issue of labelling was one that came up often during the inquiry. There is currently no consistent labelling used for any type of art or craft product, whether Indigenous or not, and no legal requirement to indicate whether something is authentic. 
This lack of any consistency or coherency in how First Nations art and craft items such as souvenirs are marked at the point of sale contributes greatly to the current lack of awareness about authenticity. 
The committee welcomes the new digital labelling trial for First Nations artworks to be administered by Desart with government funding support, and awaits the results with interest.
Also of great interest to the committee will be the outcomes of the current Australia Council inquiry into the feasibility of a National Indigenous Art and Cultural Authority. The committee would welcome the establishment of this body and believes that it would play an important future role in deliberating and advising on the issues raised in this inquiry.
The committee has made eight recommendations to the Government that it believes will severely curtail the prevalence of imitation Indigenous art and create economic opportunities for First Nations artists and communities. The intention is to chart a path forward to foster and preserve authentic First Nations cultural expressions for the benefit of all Australians.
These recommendations are also intended to start an earnest conversation among Federal, State and Territory policymakers about the harm caused by inauthentic First Nations art and craft.
The committee recommends the following:
  • That the Productivity Commission conducts a comprehensive structural analysis of the entire market for First Nations art and craft. It will be difficult for policymakers to be effective in the future without this information.  
  • That the Indigenous Art Code be properly funded and a review take place after two years to determine whether this voluntary code of conduct is being effective or whether a mandatory system should be considered. 
  • That a separate arm of the existing Indigenous Business Sector Strategy be created for First Nations art centres to build their capacity. 
  • That an Information Standard be developed for authentic First Nations art and crafts. 
  • That an information guide on authentic art and crafts be developed as a short video presentation to all passengers arriving into Australia. 
  • That a Certification Trade Mark scheme for authentic First Nations art and crafts be developed by IP Australia in consultation with all relevant stakeholders. 
  • That funding be made available through the Indigenous Visual Arts Industry Support program to assist artists and art centres affected by carpetbagging. 
  • That a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions

Tech Future

The national Industry Department has released Australia's Tech Future: Delivering A Strong, Safe And Inclusive Digital Economy, a strategy document that was expected at the beginning of the year and arguably hasn't been greatly improved by months in the policy blender.

It is an echo of the past twenty years' of internet-centred strategy documents that enthuse about futures for health, education, business, research, public administration and community inclusion but don't result in sustained action, in part because the minister/department of the day doesnt have heft and longevity.

In articulating 'vision' the document states
Vision: That Australians enjoy an enhanced quality of life and share in the opportunities of a growing, globally competitive modern economy, enabled by technology.
Countries around the world are investing heavily to take advantage of the significant economic and social opportunities that a digital economy can bring. Australia’s ongoing economic success depends on our ability to harness technological advances to improve existing businesses, create new products and markets, and enhance daily life.
A report by Data61 estimates that improvements to existing industries and growth of new ones could be worth $315 billion to the Australian economy over the next decade.
Australia’s Tech Future details how Australia can maximise the opportunities of technological change by focusing on four key areas:
• People: developing Australia’s digital skills and leaving no one behind 
• Services: how government can better deliver digital services 
• Digital assets: building infrastructure and providing secure access to high-quality data 
• The enabling environment: maintaining our cyber security and reviewing our regulatory systems
Under each of these elements, the agenda sets clear outcomes, identifies opportunities and areas that need further focus, and outlines corresponding Government plans of action.
By working together we can ensure Australians can share in the opportunities of a growing, globally competitive modern economy, enabled by technology. Digital technologies will deliver benefits across the economy and society
The opportunities afforded by digital technologies are not constrained to technology-based companies and start-ups – they can add value across all parts of the economy.
For businesses, these technologies have the potential to help develop new products, access new markets, work more efficiently and improve the bottom-line, better target consumer preferences through use of data, and deliver safer working environments.
The document goes on ...
While agriculture is one of the world’s oldest industries, farmers are some of our best leaders in the uptake of new technologies. Self-steering, GPS-guided tractors and other high-tech farming equipment have already become a normal part of farming in Australia, helping our farmers be more efficient and save on chemicals and other high-cost inputs. Into the future, the combination of satellite technologies, drones and better use of data will deliver even more support for farmers making decisions on planting, fertilising and watering crops (see Yield Technology case study). Blockchain also holds the potential to transform supply chain management and biosecurity outcomes (see AgriDigital case study).
Australian manufacturers are using digital technologies to modernise their systems and processes (see Astor Industries case study). From robotics and artificial intelligence to advanced modelling software and 3D printing, technology has become an integral part of doing business. Digital technologies will help Australian manufacturers thrive into the future, as they use 3D printers for rapid prototyping, collaborate with cloud-based tools on component design and production and implement sensors connected using Internet of Things (IoT) technology to monitor production processes. These technologies help to ensure only the highest quality products leave the factory, while better use of data, including from customers about their experience, will be used to anticipate demand and inform new product development.
The resources and mining sector is undergoing an intense period of change as mining companies embrace digital technologies to drive productivity and improve safety. It is already commonplace to see driverless trains and trucks moving large volumes of iron ore around the clock in mines across Western Australia. Looking ahead, emerging technologies will become further embedded in mine operations. Technology such as 3D printing can be used to quickly deliver critical spare parts in remote locations reducing delays in production. Drones and sensors will be used to collect real time data, particularly in dangerous or inaccessible locations, and this will be used to support better planning and management of mining operations which will reduce the cost of extraction and improve the safety of mine workers.
Australia is now a top 10 global destination and digital technologies are increasingly used by both travel operators and consumers at all stages of the travel experience. Tourist operators have invested in cutting edge virtual reality and 360 degree mobile technologies- there is nothing like a life-like experience of snorkelling the Great Barrier Reef to attract tourists to our shores. Consumers are increasingly planning and booking travel online and then rating their experiences. In the near future, greater use of data combined with machine learning will enable travel companies to predict when and where travellers may want to travel allowing them to better target travel experiences and to generate personalised offers for the travelling public.
The services sector makes up a large part of the Australian economy, employing four out of five Australians. Advances in technology such as artificial intelligence, data, analytics, machine learning and robotics are driving competitiveness and productivity. Digital commerce continues to grow in use and popularity, technology is enabling frontline engagement with customers in stores and businesses are realising increased sales through online sales and creating digitally connected stores. In financial services credit card companies are using data to detect fraudulent transactions, and insurance companies are using data to set fairer and more accurate policy premiums. For the Australian community, digital technologies are improving health and education outcomes and, making services, particularly government services more accessible. Advances in technology are also improving how we manage emergency situations and making our cities more liveable including through better transport.
The opportunities to use digital technologies to improve health outcomes are continually expanding (see case studies on Helimods and iOrthotics). Hospitals are using software developed by CSIRO to better manage patient flows and reduce waiting times and some remote communities are gaining increased access to specialised services via digital channels. Healthcare professionals are using robotics to improve surgery outcomes, radiographers are using computers that are trained to recognise patterns in images to identify irregularities in scans. But consumers are also being empowered to better manage their own health. As well as accessing health information online, devices that monitor blood pressure and heart rate are saving lives and those that track activity and diet are also improving health and wellbeing. In the future, our ability to tailor healthcare solutions to individual needs will see further improvements in health outcomes. Increased use of sensors will enable greater use of devices that can monitor the health of older Australians within their homes, notifying medical authorities if required. This will increase independence and quality of life while providing peace of mind.
We all know that a good education provides a great start in life. Digital technologies are not only changing what we need to teach our children (see case studies on Swinburne University and the esmart library Program), they are changing how we teach them. The pace of change in technology also means that we have to keep learning throughout our lives, keeping up-to-date with how technology can help us at home and at work. Students are increasingly using digital tools to access information and educational resources, many are completing qualifications largely online. As well as increasing access, particularly for people in regional and remote locations (see Mobile Black Spot Program case study), digital tools can provide all students with more tailored educational solutions that meet their particular needs.
Everyday services
A whole range of services that people use every day, including banking, shopping and entertainment are available online. Access to goods and services online is particularly important for Australians living in rural and remote areas. Data about the availability, cost and customer experience of services is helping us choose a restaurant for dinner, an energy provider or where to holiday. Government services are also increasingly available online with the aim to deliver seamless, painless and efficient services that protect people’s privacy and security. Services including myGov and myTax are good examples of how the government is transforming the way Australians deal with government.
Emergency services
Better management of emergency response situations through the use of digital technologies including accidents, floods and bushfires is helping save our environment, people’s homes and lives. Emergency services including Police, Fire and Ambulance and are using digital tools to improve data collection and sharing of intelligence in complex situations. Authorities are also using mobile phones to alert people of local emergency situations to keep people informed and safe. In the future, people calling 000 on a mobile phone will automatically relay locational details. This will allow emergency services to be immediately despatched saving time and potentially lives, particularly in places where the caller may find it hard to identify the specific location, for example on a country road. CSIRO’s bushfire prediction tool ‘Spark’ (see Spark Platform case study) is a great example of how digital technologies are being used to predict the behaviour of bushfires thereby making communities safer, stronger and more resilient.
Many Australians travel to and from home, work, the shops or school each day. Not only are digital technologies making our cars, trains and buses safer and more efficient, but improved collection and use of data is helping manage our transport systems and traffic flows in our cities. In the future, increasing automation of vehicles will support people to become or stay independently mobile while potentially reducing the number of cars on the road and sitting in car parks. Widespread implementation of improved safety features such as automatic emergency braking and sensors to detect driver alertness will lead to fewer accidents on our roads. Better management of public transport, based on detailed analysis of data about how and when we move around the city, will reduce commuting time and make our cities more liveable.
To secure these benefits requires a strategy for Australia‘s technology future which embraces emerging technologies, and creates the environment for Australian’s to have their quality of life improved by a modern digital economy.
Understanding emerging technologies
A range of emerging technologies are forecast to change and improve many fundamental tasks and interactions in the coming years, including how we work, travel, and communicate with each other. Technologies such as artificial intelligence, blockchain and quantum computing present significant opportunities for people, businesses and the broader economy.
Artificial Intelligence
Artificial intelligence (AI) is a broad term used to describe a collection of technologies that can solve problems and perform tasks to achieve defined objectives without explicit human guidance.
Central to AI are automation and machine learning that underpin applications such as natural language processing (Apple Siri or Amazon Alexa), computer vision (Tesla Autopilot), and optimisation and decision support (Google Maps).
AI has the potential to automate repetitive or dangerous tasks, increase productivity and allow the development of innovative consumer products. It is forecast to add trillions of dollars to the global economy in the coming decades. Examples include:
• Using advanced data analytics techniques to diagnose diseases at earlier and more treatable stages 
• Using automated machines for hauling and drilling on mine sites, increasing productivity and reducing risks to workers 
• Enabling greater use of smart forms that can tailor legal information to assist individuals to draft a will or settle financial arrangements following a break-up 
• Tailoring content on entertainment platforms to meet user preferences
There is considerable effort, both in Australia and internationally, focused on ensuring that AI is applied ethically and delivers broad societal benefits. 
Blockchain is a digital platform that records, verifies and stores transactions shared across a network of computers according to an agreed set of rules. This removes the need for verification by a central authority, such as a bank.
Cryptography is used to keep transactions secure, and costs are shared among network participants. The fact the transaction history is viewable and verifiable by all network participants allows for much higher levels of transparency and auditability than is otherwise possible. Although blockchain is still an emerging technology, it can be applied across a wide range of industries and to almost any transaction that involves a value, including:
• Financial transactions 
• Faster clearing and settlement times could reduce credit risk and capital requirements, lowering transaction costs across the board. This could have practical benefits for real estate transactions 
• Significantly reduced contracting, compliance and enforcement costs can make low-value transactions economically viable through use of auto-executed ‘smart contracts’. This would allow for faster and easier transfer of royalties from digital platforms to digital content creators, such as musicians, writers and vloggers. 
• Government services 
• Validating the identity of a person without revealing personal information 
• Allowing for government to reduce fraud, corruption, errors and the cost of paper-intensive processes. 
• Tracing the history of a product 
• Tracking the provenance and trade of digital and physical goods. This would help ensure consumers are receiving genuine items that are otherwise susceptible to fraud, such as ethically sourced diamonds and luxury food items.
Internet of Things (IoT)
he Internet of Things (IoT) refers to the increasing use of sensors that record thing such as sounds, touch, movement, temperature and even chemical composition that are being used to automatically collect data about people, the environment and objects and transmit this information over the Internet.
The increasing application of this technology has been made possible by the availability of cheaper and better sensors, the wide availability of internet connectivity and increased computing power.
Examples of how IoT is delivering benefits to the community include:
• Smart health care devices that can monitor patients and alert medical authorities if required 
• Sensors in energy and water infrastructure that enable providers to better track and manage maintenance 
• Sensors in the soil that can measure moisture levels and help farmers better manage water use and improve harvest.
Quantum computing
Quantum computing is an emerging technology that would exponentially increase available computing power to help us solve problems that we cannot tackle with existing computers. Quantum computers, will be able to crack codes easily and they have the potential to disrupt existing security methods that use encrypted data, such as in banking and other industries. Quantum computers also have applications in scientific fields and could help answer questions that have baffled scientists for generations.
Australia is recognised as a world leader in silicon-based quantum computing research, which is one of the most promising pathways to developing a commercially viable quantum computer.
As part of the National Innovation and Science Agenda, the Government invested $25 million in the Silicon Quantum Computing Pty Ltd venture, in partnership with leading academic institutions and businesses.

Medical Devices

In Mount Isa Mines v Pusey Windeyer J famously referred to law as "marching with medicine but at the rear and limping a little". Yesterday's announcement by the TGA, Australia's pharmaceuticals and medical devices, regarding an end-of-the-year consultation about 'cyber security' of medical devices is another instance of the very inward-looking regulator marching a long way behind both technology and medicine while recurrently - as with failures relating to various implants - recurrently tripping over its own feet.

The TGA states
The TGA is seeking comments from interested parties on the applicability and usefulness of the content contained in the draft regulatory guidance and information materials. The guidance is intended to assist industry understand and comply with their responsibilities to ensure that medical devices are cyber secure. 
The guidance will also contain information to assist users (including those in health care settings) with managing cyber security matters related to the use of medical devices. ... The purpose of the consultation is to seek stakeholder feedback on the proposed guidance and information materials which have been prepared to assist industry understand and comply with their responsibilities to ensure that medical devices are cyber secure under the Therapeutic Goods Act 1989 as well as in accordance with the ‘Essential Principles’, as set out in Schedule 1 of the Therapeutic Goods (Medical Devices) Regulations 2002
Feedback from the medical device cyber security public consultation and webinar, and targeted stakeholder interviews has informed the development of this guidance. 
Connectivity and digitisation of medical device technologies may help improve or increase device functionality. However, the connection of devices to networks or the internet exposes devices to increased cyber vulnerabilities that can potentially lead to unacceptable risk of harm to patients. A large number of Class II, Class III and Active Implantable medical devices on the ARTG include electronic components with embedded software, have a software accessory or are a software device. This is a growing area of interest as more health care systems and patients rely on medical devices that are 'connectable'. There is also significant innovation and fast moving technological advancements in software development underpinning more personalised medical devices.
The announcement coincides with the TGA's strange response to problems with breast implants, ie they are apparently fine to use if they are 'in stock' - something that raises concerns about potential harms and the TGA's disregard of public communication.

The ABC yesterday reported
Breast implants deemed unsafe in Europe will continued to be used in Australia, according to local health authorities. "From now on, these medical devices can no longer be marketed in France and in Europe and [we have asked] Allergan to recall products in stock at all health facilities," a statement from the National Security Agency of Medicines and Health Products said. 
In response, the Australian regulator, the Therapeutic Goods Administration (TGA), said no new textured implants made by Allergan would be allowed to be used here, but that would NOT stop existing implants on shelves from being used. 
As a law academic I do wonder why there isn't a comprehensive recall of what's on the 'shelf' if concerns are so serious that imports are prohibited.

The ABC report goes on
The French announcement came in the wake of a probe by the International Consortium of Investigative Journalists (ICIJ), including the ABC, which highlighted significant flaws with the way medical devices were approved for use in patients and monitored once on the market. 
Textured implants are used in about 90 per cent of Australian breast augmentations and the Allergan brand is the most popular among surgeons. An estimated 40,000 breast surgeries take place in Australia each year. 
A spokesman for the TGA said it was working with Allergan and French regulators to determine the "most appropriate course of action in Australia".
We should expect the TGA to proactively 'work with' the community rather than merely the vendor of a health product that - on the face of it - is sufficiently problematical to incur a ban. Regulatory scholars will recall the belated TGA response to substantive problems with pelvic mesh and PIP (Poly Implant Prosthese) implants.

19 December 2018


'The Omega Man or The Isolation of U.S. Antitrust Law' by Spencer Weber Waller comments
There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson’s 1954 classic science fiction novel I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.
While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States antitrust law and policy divergences significantly from the rest of the global antitrust community in important areas of scope, philosophy, doctrine, procedure, remedies, and institutions. Much of this divergence in world view is the product of history and path dependence that is largely unique to the United States experience. At the same time, some of the divergence is the result of ideological choices over the past forty years that improbably have remained in place in the United States, while other politics, economics, values, and policy choices have come into prominence throughout the rest of the world.
Unlike The Omega Man, there is no plague and there are no monsters. But there are major fault lines in competition law and policy where the United States is the outlier and in danger of becoming The Omega Man. While there are also many issues of agreement where the United States has been a thought leader, there are a significant number of the most salient and controversial issues in modern competition law where the United States is choosing to go it alone or nearly so.
There are some important caveats to this tale of antitrust exceptionalism. Some of the United States antitrust exceptionalism means more enforcement than elsewhere in the world. In most of the areas discussed in this article, it means less enforcement that is seen elsewhere, particularly than in the European Union and the numerous jurisdictions whose competition law is modeled on EU principles. Nor does going it alone, or being in the minority, mean that the United States position necessarily is in error, but it does caution against demonizing foreign approaches or relentlessly searching to transplant U.S. approaches into very different societies.
This article surveys several significant areas of antitrust law and policy where United States law, procedure, institutions, and remedies differ significantly from the rest of the world. The basic thesis of the article that the growing isolation of U.S. antitrust law is more than just a transatlantic divide. Rather, much of the global community understands U.S. antitrust law and policy, but has rejected its current narrow form in favor of a broader vision of what competition law means, what legal rules are appropriate, and how they should be enforced. Even in areas such as mergers and cartels, outward convergence often masks critically different practices just beneath the surface.
As a result, the debate over the future of the Chicago School is largely moot. Examining what the rest of the world competition community actually does, rather what it says, shows the debate is largely over. Whether measured by numbers of jurisdiction, percentage of world gross domestic production, population, or most other measures, the Chicago school paradigm is the outlier, the Omega Man.
Part I examines single firm conduct as perhaps the most significant and largest area of substantive divergence between the United States and the rest of the world. Part II shifts to the scope of competition law where U.S. antitrust law simply does not capture a wide variety of conduct and tools that form the core of competition law in much of the world. Part III looks at the widespread use of market studies and market investigations where the United States lacks the legal infrastructure to undertake what is routine in key jurisdictions around the globe. Part IV explores how competition law outside the United States may include public interest standards that fall outside the narrow focus of U.S. antitrust law and enforcement. Part V examines similar key divergences in public enforcement, remedies, and private enforcement. Part VI questions why the United States antitrust agencies largely have shied away from the implications of big data and algorithmic competition which are attracting more significant attention abroad. Part VII changes the focus from descriptive to normative and offers preliminary explanations as to the reasons for the growing isolation of United States antitrust law and how both the United States and the rest of the world can respond to this growing divide. I conclude by returning to the question of whether the United States is indeed the Omega Man of global competition law.

Video Wills

In Radford v White [2018] QSC 306 the Queensland Supreme Court has declared that a video recording forms the will of Jay Matthew Schwer within the meaning of  Succession Act 1981 (Qld) .s 18(2).

Jackson J states
On 24 January 2018, Jay Matthew Schwer died as a result of a self-administered overdose of prescribed pain killers following his discharge from hospital after surgery. It is not suggested that he deliberately took his own life. [3] On the date of his death, Mr Schwer did not have a will executed under Part 2 of the Act. He was then aged 39 and appears to have been a United States citizen, although he had lived in Queensland for approximately 12 or 13 years. It is not suggested that he had a will made in accordance with the laws of any other jurisdiction. 
On 21 November 2016, in the afternoon, Mr Schwer suffered injuries, including a significant head injury, in a motorcycle accident. He had purchased and started riding the motorcycle on that day.  
Relevant to this proceeding, earlier that day Mr Schwer made a video recording of his testamentary intentions at the request of his de facto partner. The recording comprised a file on his personal computer. A transcript of what he said is as follows:
“It’s Monday the 21st November 2016. My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I’ll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me. 
If my daughter decides to go to school, on completion of a four year degree, in something other than the Arts – so any business, psychology, sociology degree, that’s fine – Katrina will have $30,000 put/set aside in a savings account. That will be given to Aleena Schwer as of completion of college, as long as it’s before the age of 25. If she doesn’t graduate by the age of 25 from a university with a four year degree, that money will be absolved (sic) back to Katrina Radford. This money that will be accumulated is to be used for one thing only, and that is to put a deposit on a house in Aleena’s own name. 
Other than that, all money, all super funds, all three – that would be Q Super, Sunsuper and Colonial Super – and any insurance policies attained with those will all go to Katrina Pauline Radford.  
Nothing, I repeat, nothing, will go to my soon to be ex-wife Nicole White/Schwer. 
Other than that, no I don’t really plan on dying, but if I do it’s by accident, and yeah, I’ll fill out the damn forms later. But as sound mind and body, everything goes to Kat. Not one thing will go to Nicole Schwer. The only thing that will be given to Nicole on – I take that back – nothing will be given to Nicole. Katrina should be allowed to maintain contact with Aleena on my behalf so she could find out who I really was as a person. 
On Aleena’s 16th birthday, Kat will give all coinage and American girl doll to Aleena. All the coinage is just, mainly, old coins mainly her birth year, silver coins and stuff like that. But I would like Katrina to have an impact, in, in as a mentor, per se in Aleena’s life, if anything should happen to me and I would like Nicole White to respect that. I’ve never really done one of these so it’s kind of weird. 
Other than that, everything’s good. … I don’t plan on dying today, hopefully” 
 As a result of the head injury suffered in the motorcycle accident later that day, it is not disputed that Mr Schwer suffered amnesia or memory loss in relation to that day and the succeeding days. It is not suggested that he later referred to or otherwise showed that he remembered the video recording. 
From mid-2014, until of the date of Mr Schwer’s death, the applicant became his girlfriend, then his de facto partner, and also the mother of their daughter, Taylor, who was born in December 2017. 
The applicant applies for orders that the video recording is a document that forms a will of Mr Schwer within the meaning of s 18(2) of the Act because it purports to state the testamentary intentions of Mr Schwer and submits that the court should be satisfied that Mr Schwer intended the video recording to form his will. ...
The Court goes on to state
Only a document that has not been executed under Part 2 of the Act can form a will for the purposes of s 18(2). “Document” is defined in s 5 of the Act by reference to the Acts Interpretation Act 1954 (Qld), which includes, as paragraph (c) of the definition of “document” in Schedule 1: “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).” 
Cases have decided that a digital video disc and an audio recording are documents within the meaning of s 18. In accordance with those decisions, the video recording on Mr Schwer’s personal computer or the disc constituting the media on which that recording was made, is a document.
The Court considered capacity, whether the recording purported to state Schwer's testamentary intentions and whether Schwer intended that the recording should without more operate as his will.

Jackson J concluded
The applicant has established that the three factual conditions for the conclusion that the video recording forms a will within the meaning of s 18(2) are satisfied. First, there was a document within the meaning of the section. Second, the document purports to embody the testamentary intentions of Mr Schwer. Third, Mr Schwer demonstrated that it was his then intention that the document without more operation as his last will. These conditions have been satisfied as a matter of fact, not discretion. 
The present proceeding is constituted as an application for orders as to those conclusions but must be, in effect, for declaratory relief. It might have been better had the application included a claim for relief for proof of the video recording as Mr Schwer’s will and for the appointment of an administrator to the estate. However, the appropriate parties are represented. The respondent, as the wife of Mr Schwer and as the mother of their infant daughter was an appropriate party. The applicant, as Mr Schwer’s de facto partner and the mother of their daughter, was an appropriate applying party. And Mr Schwer’s mother swore an affidavit for use in the proceeding and accordingly had notice of the proceeding. 
In the circumstances, in my view, it is appropriate to declare that the video recording in the termstranscribed in paragraph [5] of this judgment forms the will of Mr Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).


Noting Sill v City of Wodonga [2018] VSCA 195, one of those sad disputes - this one involving a dog licence - that features claims that the Constitution and other statutes are invalid, an echo of the 'sovereign citizen' phenomenon noted elsewhere in this blog.

In Sill the Court states
 In the course of his journey to this Court, the applicant has raised issues concerning the constitutionality of various State and Commonwealth Acts, the validity of the appointments of certain state governors (including the present governor), allegations of treason and assertions that various courts are either unlawful, unconstitutional, illegal or star chambers.
The Court went on
During the hearing, the judge very patiently sought to extract from the applicant the points the applicant wished to make in support of his application and the merits of his proposed appeal. Reference was made by the applicant to, amongst other things, the Universal Declaration of Human Rights, the Commonwealth Constitution and the King James Bible. Ultimately, the judge teased out and then identified six points advanced by the applicant as follows:
(1) The Court is an administrative court, and is therefore unlawful. 
(2) The Constitution Act 1975 (Vic) is not a valid Act. The applicant asserted that this Act has never been validly signed or assented to. The Act was also said to be invalid because it was brought into existence without a referendum. 
(3) The Royal Style and Titles Act 1973 (Cth) is invalid. In support of this submission, the applicant contended that the Queen of Australia[3] does not exist. This Act was described as a treasonous Act, having no basis and also one requiring a referendum before it could have any validity. 
(4) Relevant governors of the State of Victoria had not been lawfully appointed. As to the present governor, the applicant submitted: I don’t know if the impact of that means anything to you, but it means a lot to me, that she [the present governor] is acting in a royal position without authority and she’s not taking orders or recommendations from our Sovereign. So if she’s been thrown out of this country by so-called legislation, we have to go looking for the people who institute all this treasonous — because it is treason. It’s no good beating about the bush, if you try to get rid of the monarch, it’s a treason against the people and treason against the monarch. 
(5) Letters patent are unlawful: because they didn’t come from the Queen, they came from Bob Hawke, he rewrote it and he’s got no right to do that. 
(6) The applicant is a human being, not an entity. 
In the course of argument, the judge attempted to unravel some of the applicant’s more opaque submissions. When confronted with legislation which suggested there was no merit in one of his arguments (for example, s 143(1)(a) of the Evidence Act 2008), the applicant’s response was that the legislation had not been validly assented to, was unlawful or was treasonous. 
Similarly, when confronted with authority that was at least arguably inconsistent with the maintenance of one of the applicant’s argument, the applicant sought to contend that the relevant decision was unlawful, or the court was unconstitutional or otherwise lacked validity. So, for example, when the judge raised with the applicant the decision of Hayne J in Rutledge v The State of Victoria as authority for the proposition that the Bill for the Constitution Act 1975 was assented to in accordance with law (and the Act was therefore valid), the applicant said: With Rutledge, it was a single court judge, therefore it was a star chamber. ... A High Court judge, if he says it, doesn’t necessarily have to be correct because we have also got the evidence we have got under the Constitution may not have been put to him because if it was, he couldn’t make that presumption and obviously he rode over the top of that, made the decision, and as I said, in an unlawful court, it doesn’t matter if it’s the High Court or a Magistrates’ Court, if it’s a single court judge, under the Magna Carta, the 1688 Bill of Rights, all says that a single court judge or a star chamber is unlawful. 
During the hearing, the applicant submitted to the judge that the City of Wodonga did not exist and that the enacting of Local Government Act 1989 was unlawful. His argument was that the failed 1988 referendum on constitutional recognition of local government resulted in local government being unlawful. The applicant developed this submission by saying that the failed referendum was binding on the Victorian Parliament, and the enactment of the Local Government Act 1989 was therefore treasonous. 
During the course of his argument before the judge, the applicant occasionally diverted himself to the proposition that the judge (and more generally the judges of the Supreme Court of Victoria) had not taken valid oaths of allegiance. This proposition was advanced by reference to the so-called non-existence of the Queen of Australia. ... 
Contrary to the applicant’s submissions, s 143(1) of the Evidence Act is not unconstitutional. As the judge observed, the section precludes arguments of the kind made by the applicant which have as their foundation a requirement for proof of the existence of the Act or its coming into operation. The section does not preclude the taking of legitimate arguments about the constitutionality of a particular statutory provision. Arguments, however, about whether there exists a copy of an Act ‘bearing a “wet ink signature of the Governor and a wet ink signature with the Royal Seal of Her Royal Majesty Queen Elizabeth the Second” ’ (whatever that might mean) are precluded. The judge was undoubtedly correct when, having considered all of the applicant’s arguments, he said that the applicant had failed to establish the invalidity of any relevant legislation or appointment. 
In addition to the very thorough reasons given by the judge for making the orders he made, one might also observe that the applicant’s arguments premised upon the non-existence of the Queen of Australia are totally without merit, flying as they do in the face of the High Court’s decisions in Pochi v Macphee  and Nolan v Minister for Immigration and Ethnic Affairs. As was observed by Gibbs CJ in Pochi, ‘the allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia’. As was observed by the plurality in Nolan, the words ‘subject of the Queen’ in the Constitution, should be treated as referring, ‘in a modern context, to a subject of the Queen in right of Australia: cf Royal Style and Titles Act 1973 (Cth)’. Put bluntly, Australian citizens owe allegiance to the Queen of Australia, not the Queen of the United Kingdom.
A perspective is offered in
'A Pathogen Astride the Minds of Men: The Epidemiological History of Pseudolaw' by Donald Netolitzky, with the author commenting
 Pseudolaw is a collection of legal-sounding but false rules that purport to be law. Pseudolaw has independently emerged in different countries and communities on multiple occasions. Despite that, modern pseudolaw world-wide is remarkably similar, despite that pseudolaw host populations have extremely different political, cultural, and historical profiles. What is common among groups that endorse pseudolaw is: 1) an anti-government and anti-institutional orientation, and 2) a conspiratorial world perspective. 
Modern pseudolaw has spread, starting from the US Sovereign Citizen population, and then infected a succession of other communities. This progression was facilitated by key individuals and can be tracked, host group to host group. 
Modern pseudolaw was introduced into Canada by one individual, Eldon Warman, who reframed its concepts to better suit a Commonwealth rather than US context. Warman’s pseudolaw variation spread into several Canadian communities with very different social objectives. The leftist anti-government Freemen-on-the-Land then seeded pseudolaw into the UK, the Republic of Ireland, New Zealand, South Africa, and several European countries. Some of the resulting groups were stillborn, but in the UK pseudolaw has thrived, but principally as mechanism to attack debt collection, rather than to challenge government authority. 
US Sovereign Citizen pseudolaw has also directly spread into the culturally distinct urban black Moorish community, and the German and Austrian right-wing Reichsbürger groups. Australia is unique in that its pseudolaw culture incorporates US Sovereign Citizen, Canadian Freeman, and domestic concepts. In other countries, the appearance of modern pseudolaw drove other pre-existing variant law schemes into extinction.
Netolinsky's 'The History of the Organized Pseudolegal Commercial Argument Phenomenon in Canada' in (2016) 53(3) Alberta Law Review comments 
This article discusses the history of the poorly understood Organized Pseudolegal Commercial Arguments (OPCA) phenomena. Drawing from various reported and unreported sources, the author begins his review in the 1950s with two distinct pseudolegal traditions that evolved separately in both the United States and Canada. Focusing on the prominent members of each era of the OPCA movement, the author explains in depth the concepts behind the movement and what it means for the legal system in Canada today. The article culminates with an analysis of the current OPCA groups and how Canadian courts should respond to future OPCA litigants, while also giving reasons as to why it is important for Canadians to take notice of this movement due to potential security risks.
His 'Lawyers and Court Representation of Organized Pseudolegal Commercial Argument [OPCA] Litigants in Canada' (2018) 51(2) University of British Columbia Law Review 419 comments
Litigants who advance unorthodox law-like concepts, “pseudolaw”, have appeared in Canadian courts for several decades. Courts reject pseudolaw as vexatious and an abuse of court. The motivations and characteristics of pseudolaw litigants differ. Some are principally results-oriented, seeking to use pseudolaw for personal advantage. Others ground their use of pseudolaw on conspiratorial, paranoid, and ideological beliefs. 
While most litigants who employ pseudolaw are unrepresented, a significant fraction retained lawyers for some or all of their proceedings. The lawyer’s functions also vary. Some are retained to conduct ‘damage control’ after pseudolaw was used but then abandoned. Other lawyers explored dubious but arguable pseudolaw, or were temporarily retained for a specific objective, such as to obtain bail. A small number of rogue lawyers have entirely rejected legal orthodoxy and fully embraced pseudolaw, arguing these concepts for their clients and even themselves. Some pseudolaw litigants for tactical advantage use a flexible litigation strategy, and alternate between representation by a ‘conventional’ lawyer, a rogue lawyer, and self-representation. This poses a unique challenge to court function and litigation management.

Sovereign Citizens

One of the more entertaining parts of my doctoral dissertation involved discussion of the 'sovereign citizen' or 'Freemen' phenomenon, in essence people who claim that Australian law does not apply to them because there was some sort of fundamental drafting problem after Magna Carta that for example rendered Federation invalid.

Examples are Thammaruknon v Queensland Police Service [2016] QDC 31, R v Stoneman [2013] QCA 209,  Robert Mcjannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRComm 1111, Van den Hoorn v Ellis [2010] QDC 451, Carnes v Essenberg and Ors [1999] QCA 339, Essenberg v The Queen [2000] HCATrans 385, Elliott v Commissioner of Police [2014] QDC 161, ACCC v Rana [2008] FCA 374, Rumble v Liverpool Plains Shire Council [2012] NSWDC 95; Green v Green [2018] FCWA 42; and Ulysses and Child Support Registrar [2007] FamCA 1395

It is often tied to assertions that the national government has no authority because it is a 'Delaware corporation' (for example Hedley v Spivey [2011] WASC 325) or - more unpleasantly - that the Reserve Bank, ATO, APRA and other entities are instruments of the devil du jour such as the Illuminati, Zionists, Roman Catholics, Freemasons or shape-shifting green-skinned extraterrestrial lizards. An insight is offered in ‘The Sovereign Citizen Movement and Fitness to Stand Trial’ by Jennifer Pytyck and Gary Chaimowitz in (2013) 12(2) International Journal of Forensic Mental Health 149 and in George F Parker, 'Competence to Stand Trial Evaluations of Sovereign Citizens: A Case Series and Primer of Odd Political and Legal Beliefs' by George F Parker in (2014) 42(3) Journal of the American Academy of Psychiatry and the Law 338.

On occasion it is bleakly amusing, with the Victorian Supreme Court in Jones (a pseudonym) v DPP [2015] VSCA 272 noting
The orders sought by the applicant on this appeal included, but were not limited to, that the position of Queen of Australia is invalid, that no bill of the Victorian Parliament has been made law since 1919, that the current Victorian Parliament be dismissed, and that the Court appoint the applicant as ‘the autocratic Head of Government of the State of Victoria to establish the rule of law and a constitution with a majority decision of the Sovereignty of the People of Victoria
In Western Australia ex-policeman, inventor and serial litigant Wayne Kenneth Glew has experienced problems with reliance on a claim of sovereign citizenship, having had his property seized and sold for after failing to pay Geraldton council $300,000 in rates on the basis that local governments local governments are not written in Australia's constitution. He reportedly claimed "It is not getting sold because I have it held under clause 61 of Magna Carta". The court was unpersuaded and, as with the quixotic Beerepoot family in Tasmania (who chose not to pay rates on the basis that all land belongs to God), sale has duly taken place.

The Court in Glew v The Governor of Western Australia [2009] WASCA 123 stated
On the hearing of the appeal, the appellant chose not to advance any substantive oral argument, being content merely to assert that the primary judge could not lawfully hear the respondent's application and the members of this court could not hear the appeal, because they were 'a judge in their own cause'. The appellant did not explain the utility of his appeal in the light of that submission. 
The appellant's written outline of submissions did not advance the matter. It consisted, without any explanation as to their relevance, of the reproduction of a number of provisions of the Crimes Act 1914 (Cth), Criminal Code Act 1995 (Cth), Crimes Act 1958, Judiciary Act 1903 (Cth), Commonwealth of Australia Constitution Act (Cth), and miscellaneous other legislation, extracts from Black's Law Dictionary and, from The Bible, extracts from the books of Exodus and Zechariah , the second epistle of Paul to the Corinthians, the epistle of James and the gospel according to St Matthew. 
In any event, it is clear that the appeal is entirely without merit. The primary judge was, with respect, plainly correctly, for the reasons he gave, in finding that the statement of claim disclosed no reasonable cause of action and was scandalous, frivolous and vexatious. No other finding was open. 
I should also point out that the appellant's challenge to the validity of the AARCLP Act follows similar, unsuccessful, challenges to it in Glew v Shire of Greenough [2006] WASCA 260 and Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289. An application to the High Court for special leave to appeal against the former decision was dismissed: Glew v Shire of Grennough [2007] HCATrans 520 (6 September 2007). 
The appellant needs to understand that he cannot simply revisit in other guises issues that have been decided against him. The persistent reagitation of these issues is a waste of the time and resources of the court and puts the other party to significant expense and inconvenience. It cannot continue.
In discussing Glew's status as a vexatious litigant the WA Supreme Court in Glew v Attorney General (WA) [2014] WASCA 93 unsurprisingly commented that his arguments
In substance, ... simply repeat the same contentions, or variations of the same contentions, which the appellant has advanced over and over again, and which this court, among others, has rejected over and over again. They do not improve by repetition; they remain as devoid of legal merit as they were at the outset. None has the remotest prospect of success. 
The point has long since been passed where the appellant's persistence in advancing these contentions could be put down to a lack of understanding of their absence of legal merit. It can now be attributed only to an obduracy which is impervious to reason and which is unlikely to diminish. The fact that in an appeal against the finding that he was a vexatious litigant the appellant has advanced the same sort of fallacious contentions which caused that finding to be made in the first place bears that out
In Frank Jasper v Glew [No 3] [2012] WASC 24 the Court stated
Mr Glew filed written submissions which dealt only with the question of my authority to determine the proceedings, and which did not deal at all with any of the substantive issues in the case. When the matter came on for hearing, Mr Glew challenged my authority to determine the claims against him by reference to those written submissions. I advised Mr Glew that I found those submissions to be incomprehensible, referring, as they did, to a schedule to the Australian Constitution which does not exist, and failing to identify any coherent basis upon which it was asserted that my appointment as a judge of the court was invalid. I advised Mr Glew that at the time of my appointment I had taken the oaths applicable to the various judicial offices which I hold in accordance with the requirements of the Supreme Court Act 1935 (WA). I invited Mr Glew to refer me to any provision of the Australian Constitution which could support the proposition that my appointment was invalid. He was unable to identify any such provision. I therefore indicated to Mr Glew that I considered my appointment to be valid, and that I had authority to determine the case against him, and would proceed to exercise that authority.
In Glew v White [2012] WASCA 138 the Court stated
This appeal is an abuse of process. The appellant is well aware that his idiosyncratic contentions have been repeatedly rejected in other cases. The appellant has invoked the court's process and procedures for an illegitimate or collateral purpose, namely, as a platform for advancing his nonsensical theories. He appeared at the hearing with the support of a large retinue who appeared to share or sympathise with his views. The appellant is not interested in securing justice according to law (either in relation to the convictions in question or otherwise) in accordance with the system to justice administered by the courts of this State. At the hearing on 5 July 2012 he advanced arguments in language which was often disparaging and derisory of this court and the functions it performs.
The grounds of appeal consist of a pronouncement of the appellant's eccentric theories about the judicial power of the Commonwealth, the Constitution, the right to trial by jury and the status of courts in this State. None of the grounds had any reasonable prospect of succeeding ... 
This appellant is wasting the time of the courts by repeatedly advancing his theories or variations of them, even though they have been dealt with and disposed of in other cases: see, for example, Glew v Shire of Greenough [2006] WASCA 260; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v The Governor of Western Australia [2009] WASCA 123; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24; and Glew v City of Greater Geraldton [2012] WASCA 94.
In Attorney General (WA) v Glew [2014] WASC 100 the Court stated
The defendant is one of those individuals who believes the courts of this State do not have jurisdiction to administer the law because they are at odds with the Constitution of the State of Western Australia or the Commonwealth Constitution. It is not really possible to define the defendant's position any more clearly than that. It is simply nonsensical and incoherent. The argument has been rejected countless times not only in Australia but in other common law jurisdictions. But individuals such as the defendant are undaunted - they plough on regardless. The argument does not vary much and has never been successful in any way, shape or form. 
It is unnecessary to go through all of the actions commenced by the defendant in which this 'constitutional invalidity' argument has been raised. It is enough if I give one example. On 19 January 2005 Magistrate King heard an application by the Shire of Greenough to recover $934.27 being rates due by the defendant and his wife Mrs Kylie June Glew to the Shire of Greenough for the 2003 2004 rate period. During the course of the hearing the defendant submitted there was no case to answer because the Local Government Act 1995 (WA) was unconstitutional and therefore unlawful. The learned magistrate rejected the argument. On 16 February 2005 he entered judgment against Mr and Mrs Glew.
By notice of appeal dated 4 March 2005 Mr and Mrs Glew appealed Magistrate King's orders. In the notice of appeal the order sought was: Pursuant to the State and Federal Constitutions the Local Government Act is unlawful and therefore the case be dismissed and costs awarded [sic].
On 15 December 2005 Judge Wager of the District Court handed down her decision: Glew v Shire of Greenough [2005] WADC 245. Judge Wager actually gave careful consideration to the defendant's argument. She rejected it in the clearest possible terms. There is no doubt her reasoning was correct and any reasonable person would have accepted that to be the case. But the defendant pressed on. 
By notice of appeal dated 10 January 2006 the defendant sought leave to appeal the decision of Judge Wager. The defendant then widened his attack. He lodged a document with this court entitled 'Legal Notice Supreme Court of Western Australia'. That document alleges 'serious indictable offences' committed by the solicitors for the Shire of Greenough and Members of the Shire of Greenough. A further document gives notice that 'serious indictable offences' had been committed by the Director of Public Prosecutions (WA).
When the matter came on for hearing it was summarily dismissed by Justices Pullin and Buss: see Glew v Shire of Greenough [2006] WASCA 260. 
The defendant then sought leave to appeal to the High Court. The application was dealt with by Justices Gummow and Heydon. A copy of the transcript of their Honours' decision appears as annexure MG 23 to Ms Georgiou's affidavit. It is worth quoting what Justice Gummow had to say:
The local court of Western Australia at Geraldton gave judgment for the respondent and against the applicants for a trivial sum, being arrears of rates. That court rejected the applicants' argument that the Local Government Act 1995 (WA) is unconstitutional, as is s 52 of the Constitution Act 1889 (WA). The District Court of Western Australia dismissed the applicants' appeal. In turn the Court of Appeal of the Supreme Court of Western Australia dismissed a further appeal as 'entirely lacking in legal merit'. We agree, and the same expression applies to the prolix, offensive and vexatious documents filed in support of this special leave application. 
All avenues of appeal were then exhausted. The Shire of Greenough lodged a bill of costs for taxation. This bill had to do with the costs of the appeal to the Supreme Court. The matter came on before Registrar Powell. The defendant repeated the same arguments he had made before and which had been comprehensively rejected. The bill was taxed and the defendant sought a review. The matter came on before Justice Beech who dismissed the defendant's application. He rejected the defendant's regurgitated argument. 
Since that time there have been six other sets of proceedings involving the defendant. Without going into details they can be summarised as follows:
  • Department of Planning and Infrastructure proceedings. This involved a Magistrates Court prosecution against the defendant. It led to an appeal to a single judge of the Court of Appeal, an appeal to the Full Court of the Court of Appeal and a taxation of costs. 
  • Frank Jasper proceedings. These proceedings were brought by Frank Jasper Pty Ltd against Mr Glew and Glew Technologies Pty Ltd for alleged breach of intellectual property licence agreement and damages for misleading and deceptive conduct. The defendant applied for leave to represent Glew Technologies. That was refused. There was an appeal from an interlocutory decision. There were then two trials - one in relation to liability, the other in relation to quantum. There were then two appeals against the decisions in each of the trials. The defendant was unsuccessful at first instance and on appeal. 
  • The Governor of Western Australia proceedings. This application appeared to be directed at preventing the 2008 State election. White proceedings. This was an action against the defendant for assaulting and obstructing a public officer. A conviction was recorded in the Geraldton Magistrates Court. This was followed by an appeal to a single judge of this court and then to the Court of Appeal. Both appeals were dismissed. The same argument was used by the defendant in each case. 
  • City of Geraldton-Greenough/City of Greater Geraldton proceedings. This was an attempt by a local government to recover unpaid rates. The same arguments were once again run right up to the Court of Appeal.

18 December 2018

Political Communication

With the current Banerji litigation in the High Court it is interesting to see 'Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power" by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann in (2018) 43(2) University of Western Australia Law Review 188, commenting
In this article, we explore the implied freedom of political communication’s (‘implied freedom’s’) application to executive power at the Commonwealth, State and Territory levels. We propose that the proportionality test used by the plurality in McCloy v News South Wales be adapted to executive actions affecting the implied freedom. We then illustrate our proposed approach by applying it to the case of Chief of the Defence Force v Gaynor
The authors argue
Over the past 25 years, the implied freedom of political communication (‘implied freedom’) has become an established part of Australia’s constitutional landscape. It is well accepted that the implied freedom limits Commonwealth, State and Territory legislation. However, its effect on Commonwealth, State and Territory executive powers is somewhat less clear. In this article, we examine the current approach to the implied freedom and executive power. We also propose an approach that, in our view, is more firmly grounded in the text and structure of the Commonwealth Constitution. We then apply our proposed approach to the topical case of Chief of the Defence Force v Gaynor
This article is split into the following parts. In Part II, we cover the current state of the law concerning the implied freedom, specifically the test provided by the plurality in McCloy v New South Wales.  In Part III, we note important points about the implied freedom. The implied freedom is not a right but a restriction on Commonwealth, State and Territory legislative and executive power. However, it is also a strong and wide-ranging freedom. Further, common law freedom of expression is itself of constitutional importance, and is relevant to assessing proportionality in the McCloy test. In Part IV, we note the current approach to the implied freedom and executive power, specifically noting the approach in Wotton v Queensland. In Part V, we propose another approach to the implied freedom and executive power. We model this approach on that of the plurality in McCloy. We note here that the sources of executive power differ between the Commonwealth on the one hand, and the States and Territories on the other. In Part VI, we consider some issues concerning our proposed approach. These issues include whether our proposed approach applies to State and Territory executive power, and to non-statutory executive power. That said, our focus in this article is on the implied freedom’s effect on the execution of laws and not its effect on nonstatutory executive power. In Part VII, we argue that the High Court’s approach in Wotton does not bar adopting our proposed approach. In Part VIII, we apply our proposed approach to Gaynor. We also explore issues arising from Gaynor, including accommodating the implied freedom in the Australian Defence Force (‘ADF’) and other government agencies.


The Illawarra Mercury reports another instance of extortion via Grindr.

Jayson Hastie, 25, has been ordered in Wollongong Local Court Magistrate to serve 20 months' in corrections , with a non-parole period of nine months. He had reportedly attracted the attention of an older man using a Grindr profile under the name of 'Alex', with an initial two weeks of messages and phone calls. He failed to attend a planned meet-up in March, a frequent occurrence with relationship SNS. At a subsequent meeting the man was greeted by one of Hastie’s friends. Hastie arrived a short time later, climbed into the backseat of the man's vehicle and introduced himself as 'Alex', claiming that he was an undercover police officer and told the man, "you have been pinged".

It is unclear what being "pinged" means but we might infer that Hastie had initially purported to be a minor. The Mercury reports that Hastie said a disc he was holding was a tracker that would bring other officers to their location, before stating "you don’t have to say anything, but whatever you do say can be used as evidence in court". Impersonation of a police officer is a specific offence under statute law in all jurisdictions.

The "terrified" victim told NSW police representatives that he agreed to Hastie’s demand for $2,000 (promptly withdrawing cash) and also agreed to provide continued financial "help" on a weekly basis. Hastie reportedly stated "If you don’t, all the transcripts [and] photos will be going to police,". Along with the friend Hastie searched the victim’s car before saying "if you ever do this again, I’ll find you and break your legs" and leaving.

 Hastie has pleaded guilty to charges of demanding money with menace and impersonating a police officer, in exchange for prosecutors dropping a more serious charge of kidnapping. In impersonating a police officer, Hastie had contributed to an "undermining of the confidence the community might have in police officers".

There have been several instances of extortion involving gay social media, at least one involving the death of a victim of extortion.

In DKN v the State of Western Australia [2018] WASCA 87 the appellant and Mr N used Grindr to arrange a meeting with the victim, purportedly for consensual intimate activity.
With the appellant's consent, Mr N sent the victim a photograph of the appellant. 
The appellant, Mr N and two other male alleged co-offenders, agreed that they would meet the victim with the common plan to beat him up. This assault was the subject of count 8. The victim arrived at the meeting location and the appellant stood waiting for him in front of some bushes in which the other three men hid. The victim approached and, recognising the appellant from the photograph, greeted the appellant. The three other men emerged from the bushes, approaching the victim. Mr N said something to the victim. 
One of the alleged co-offenders then walked away. 
The other walked behind the victim and struck him to the back of the head.The victim attempted to run away. Mr N tripped the victim, causing him to fall to the ground. 
Mr N and one of the alleged co-offenders began to punch, kick and stomp on the victim's head, body and face. The appellant then punched the victim once in the face. The victim tried to protect himself by curling into the foetal position on the ground. 
The appellant took the victim's wallet, removed his licence and gave it to Mr N. While recording the assault on his mobile phone, Mr N read the victim's name from his licence, demanding that the victim never do this again. The appellant then took $40 from the wallet. This act was the subject of count 10. One of the alleged co-offenders took the victim's house and car keys. The offenders then ran off. 
The appellant and Mr N returned to the victim with the intention of taking his mobile phone. The victim handed it over after Mr N told him that if he did not he would kill him. The appellant and Mr N then ran away, stopping 100 metres from the victim. The appellant removed the phone's SIM card and handed the phone to Mr N. Mr N then stomped on the phone, smashing it, before placing it down a drain in the road. The destruction of the phone was the subject of count 12. 
The victim suffered bleeding to the brain and was hospitalised. He sustained bruising to his face, back and arms and abrasions to his face, legs and arms. The victim's injuries were medically reported to be of such a nature as to endanger or be likely to endanger his life.
In R v KB [2017] ACTSC 344 the Court notes
 In early January 2017, the offender's younger brother (then 16 years old) created a profile on “ Grindr ”, a social networking app used by gay men to arrange romantic and/or sexual liaisons. The offender's brother stated that he was 18 years old or older, as the app required users to be adults. 
On 7 January 2017, the offender's brother “met” the victim through the profile. They “befriended” each other on Facebook. The offender's brother said that he wanted to meet the victim in person and they arranged to meet at the playing fields at Mawson. 
The offender drove his brother to the agreed meeting place. The offender exited the car, approached the front driver's side of the victim's car and said “Hi, I'm the paedophile hunter... you have come here to see my little brother, he is only 15.” The offender threatened to publicly release details of the Grindr exchanges between the victim and the offender's brother, which included images.
As this conversation was occurring, the offender's brother left the offender’s car and approached the offender and the victim, holding a mobile telephone. He recorded the conversation between the offender and the victim. 
The offender said to the victim, “we can sort this out; you don't have to ruin your life.” He continued to threaten to publish on social media the conversations and images that had been exchanged. He said that he would have the victim arrested and would ruin his life. 
After protesting that he had done nothing wrong, the victim attempted to enter his vehicle to leave. The offender leaned against the front driver side door and prevented the victim from doing so. However, the victim managed to force open the front driver door and enter the vehicle. As the victim drove off, the offender and his brother called out “we are going to ruin your life”. 
When he was exiting the car park, the victim stopped his vehicle. The offender and his brother approached. The victim used his mobile telephone to photograph them. The offenders repeated that, “we can sort it out; you don't have to ruin your life.” When the victim asked what they wanted, the offenders indicated that they wanted money. The victim drove away. 
The victim continued to receive messages from the Grindr account in the name of the offender's brother. One of the messages said, “[w]ould you ruin your life just for $150, is it worth it?” .... In February 2017, police executed search warrants at the residence of the offender and his brother. Police searched the offender’s vehicle, where they located a printed piece of paper containing explicit Facebook message exchanges between the Facebook account operated in the name of the offender's brother an unidentified male.
The Canberra Times in reporting on other instances of blackmail by KB's associates commented
A teenager used as "bait" to lure a man who died by suicide hours after he was blackmailed by a group of males who targeted men on a gay hook-up app and threatened to out them as paedophiles will spend four months in detention.
The boy, now 17, was the fifth person to plead guilty after police this year cracked a syndicate for vowing to publicly "out" men, who they trapped through apps including Grindr, as child molesters if they didn't hand over mobile phones or cash.
He had been driven by greed when he asked the scam's teen "ringleader" to get involved, the ACT Childrens' Court was told on Monday. ...
The boy was among offenders who ensnared the man through social media and arranged a meeting at Mawson shops the night of January 20.
When the man arrived, the boys showed him a dossier compiled on him and said they would publish messages and expose him as a paedophile before they fled with his mobile phone and $400.
Not satisfied with that haul, he was among several boys who later showed up at the man's house to put further pressure on him before they were scared away by his brother.
The victim was found dead the next afternoon.
Police arrested the offender after they found the victim's phone in the boy's bedroom in April this year. He admitted to blackmail and unlawful possession of stolen property.
In August SBS reported Timothy Ruge, 34, pleaded guilty in Melbourne Magistrates Court to making an unwarranted demand for money with menace, having demanded $1300 from a Grindr user in return for not telling the victim's girlfriend.

Ruge - who presumably knew the victim - allegedly responded to contact by sending an image of the victim's fiancee, commenting: "She's pretty, you cheating bastard". The victim apologised; Ruge demanded "Cardless cash me $500 now, then $500 in 30 mins Are We Clear", followed by "And I vanish". The victim said he didn't have the money, explaining "she handles all my money", with Ruge apparently responding "tick tock I'll ask her for it then shall I. Tick tock".

The men then arranged to meet at Southern Cross Station, with the victim handing over $200 - apparently captured on CCTV - and Ruge deleting the messages, only to ask for a further $300 in a message six minutes later, with the victim then reporting to the police.

Ruge is elsewhere reported to have characterised the matter as an “unfortunate circumstance”.

In Landon v R [2018] NZCA 264 the NZ Court of Appeal notes
The complainant had been deceived into believing he would be meeting a young man he had been exchanging text messages with. When the complainant went to open the gate, however, he was ambushed by M1 (who was armed with a shotgun), M2 (who was carrying a baton) and Ms Landon. The complainant was then taken back to his apartment and subjected to degrading and homophobic abuse over an extended period, and threatened with serious violence. As the offenders departed, they stole multiple items of property, including the complainant’s car.


'Does the Crown Court Discriminate Against Muslim-Named Offenders? A Novel Investigation Based on Text Mining Techniques' by Jose Pina-Sánchez Julian V Roberts and Dimitrios Sferopoulos in (2018) The British Journal of Criminology comments
Most research in sentencing discrimination in the United Kingdom has relied on aggregate analyses comparing disparities by ethnic group. These studies fail to consider differences in the individual characteristics of the cases processed. To circumvent the lack of official data, we scraped sentence records stored in a commercial website, from which a sample of 8,437 offenders sentenced to custody in the Crown Court from 2007 to 2017 was generated. Using the names of the offenders, we have been able to classify 8.6 per cent of our sample as having a traditional Muslim name. We find that Muslim-named offenders received sentences 9.8 per cent longer than the rest of the sample. However, this difference disappeared once we accounted for the type of offence and other key case characteristics. 
 The authors argue
Is there evidence of discrimination at sentencing in England and Wales? The 2017 Lammy Review has provided a timely reminder of the need for more—and better—research into the criminal justice treatment of racial, ethnic and immigrant minorities in England and Wales. A significant body of research addresses the differential impact on these groups at all stages of the criminal process (e.g. Chigwada-Bailey 2003; Hood et al. 2003; Cole and Wardak 2006; Earle 2011; Phillips 2012; Phillips and Bowling 2017; Irwin-Rogers 2018). Sentencing—the most visible and symbolic stage of that process (Ashworth 2010)—has been subject to far less academic scrutiny. The most significant study of race and sentencing is now over a generation old (Hood 1992). Since then, empirical research has been intermittent,1 with the Ministry of Justice undertaking much of the work on this topic. As part of its section 95 duties, the Ministry of Justice publishes annual statistics relating to race and criminal justice, including sentencing (e.g. Ministry of Justice 2017). These reports provide bivariate statistics, highlighting relationships between race and sentencing outcomes, but are unable to control for relevant case characteristics that might explain those relationships. 
The Lammy Review demonstrated racial disparities in sentencing outcomes for certain offence categories. More specifically, the review reported that within drug offences the odds of a prison sentence were 240 per cent higher for defendants who self-identify as Black, Asian or Minority Ethnic (BAME) compared with White defendants. The review’s analysis took some relevant case characteristics into account. For example, previous convictions and plea were considered, but not other mitigating or aggravating circumstances or indeed the possibility that BAME drug offenders had been convicted of more serious drug crimes (see Hopkins et al. 2016; Lammy 2017: 33). Regrettably, the Lammy Review failed to conduct or commission original empirical research, which might have accounted for other relevant case characteristics. Nor did the review draw upon existing databases that could have helped answering the key question of whether and to what extent racial minorities are treated differently. 
The Ministry of Justice biennial report ‘Statistics on Race and the Criminal Justice System’ has consistently documented sentencing differentials between BAME defendants and White defendants accused of the same offence. The most recent Ministry report (2017) found that BAME defendants had a higher custody rate than White defendants. In addition, since 2012, the average sentence length has been consistently longer for all non-White ethnic groups. In 2016, of all offenders sentenced to immediate custody, Black and Asian offenders received an average sentence length of 24 and 25 months, respectively, compared with 18 months for White offenders (Ministry of Justice 2017: 53). These disparities are cause for concern (see The Secret Barrister 2018: 285). However, they do not constitute incontrovertible evidence of discrimination at the sentencing stage since we do not know whether the differential outcomes can be explained by legally relevant factors2 (Green 1961; Hall and Simkus 1975; Raynor and Lewis 2011; Pina-Sánchez and Linacre 2016) such as those determining the harm of the offence or the culpability of the offender. If for example, BAME defendants were less likely to plead guilty—as suggested by Thomas (2010) and Hood (1992)—we would expect to see differences in sentencing outcomes, all other characteristics being equal. 
This methodological challenge is not new. In 1987, Zatz described the comparison of group means as an obsolete approach to investigate sentence disparities. Multivariate approaches are superior when it comes to detecting the presence of discrimination in sentencing. These methods can be used to control simultaneously for the relevant aggravating and mitigating factors present in different cases, which is key to be able to distinguish legitimate disparities in sentencing from truly discriminatory practices. Hundreds of such studies have been conducted in the United States, with regression modelling being the predominant method of choice (Baumer 2013). In the United Kingdom, however, official sentencing data have traditionally been presented in an aggregated format, precluding the use of regression modelling techniques. In response to critics,3 the Ministry of Justice released a large data set of 1.2 million cases sentenced from 2007 to 2011 at the magistrates and Crown Courts.4 These individual cases included some important demographic characteristics of the defendant, such as age, gender and ethnic group; however, they did not contain any relevant case characteristics other than the broad offence type, thus preventing researchers from differentiating between warranted and unwarranted disparities.