Gibberish

The headnote for Palmer v No Respondent [2023] VSCA 322 persuasively characterises the appeal as 'Pseudo-legal gibberish' and 'Mumbo jumbo'.

In earlier proceeding Palmer had responded to attempts by the Deputy Commissioner of Taxation to recover $1.5 million in tax by sending a document entitled ‘Notice to Show Cause’ requiring the judge 

‘to show Just Cause with respect to’ (amongst other things): The County Court of Victoria being a court that complies with Chapter III of the Commonwealth Constitution, under the Crown of the United Kingdom. The presiding Judge proving that he/she has sworn an oath to the Queen of the United Kingdom. The County Court Civil Procedure Rules 2008 complying with a Parliamentary Order as per section 87 of the Judiciary Act 1903 (Cth).

and then seeking summary dismissal or striking out of the Deputy Commissioner’s claim, ‘with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and ... is, in its entirety a legal nonsense’, while claiming ‘costs and damages’. 

Beach JA states of the preceding trial

The flavour of this hearing can be gleaned from the applicant’s announcement of his appearance to the judge. In response to the judge’s seemingly innocuous statement, ‘And Mr Palmer, you represent yourself’, the applicant said: I’m Michael, and we are that person’s personal representative in private capacity in being. We appear under duress as the beneficiary of that constructive estate to ensure that that estate is not unlawfully damaged. We act as the mind, body, spirit in being and we are here as an inquirer, first and foremost, in respect of jurisdiction. 

Palmer was unhappy with the decision, seeking judicial review alongside a declaration that the judge’s orders were 'null and void or, alternatively, quashed' with a 'judicial writ of mandamus’  being used to provide that the 'alleged' debt be 'extinguished/declared null and void and un-enforceable. Palmer identified a mere 36 alleged errors of law by the Judge, including

•  ‘failing to establish jurisdiction over a subject of the Crown, separate from the Holy See of Rome, as dictated by the 1688 Bill of Rights’; 
• ‘failing to establish jurisdiction over a living, breathing man, a de jure solemn et naturale’; 
• ‘failing to establish the source and fountain of justice that flowed through the court that was operating within Australia’s Constitutional Monarchy’; 
• ‘stating that the Court was operating under the title of the “King of Australia”, but then ignore[ing] the fact that there was no instrument at law that established that title to be used in relation to Australia and its territories, which extends to the State of Victoria’; 
• ‘ignoring the fact that the subject of the Crown clearly stated that he did not agree, or consent, to act as surety for the Defendant entity’; and 
• ‘ignoring evidence — by way of the County Court of Victoria Annual Report — that the County Court was a trading corporation operating under a trading name with an ABN, and could not make lawful orders’.

The head note reads

Income tax – Judgment against applicant for in excess of $2m for unpaid income tax – Attempt by applicant to file judicial review proceeding – Proposed judicial review proceeding constituting an abuse of process – Application for leave to appeal from primary judge’s refusal to direct Prothonotary to accept and seal proposed originating motion – Application for leave to appeal having no prospects of success – Pseudo-legal gibberish – Mumbo jumbo – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Games, copyright and metaverses

The 2023 CREATE working paper 'Gaming without Frontiers: Copyright and Competition in the Changing Video Game Sector' by Aysel Gizem Yaşar, Amy Thomas, Kenny Barr and Magali Eben states

This working paper examines aspects of the contemporary video games sector at a time when incumbent and new-entrant market participants vie for primacy in the games industry. In this setting, ownership configurations and business models of key actors are in a state of flux. As consumers increasingly access culture ‘on-demand’ by way of cloud technologies, myriad opportunities and challenges emerge, not only for the video games sector, but for the wider cultural industries and society as a whole. It is in this very dynamic industrial landscape that the working paper is located. 

The paper marks a starting point for collaborative research on the games industry, drawing on the range of expertise within CREATe to provide a more holistic view of innovation, creativity, and power dynamics in games. The authors draw on different research specialisms and interests including: digitalisation of the cultural industries; copyright and notions of user creativity; digital services and product market definition; and competition law, innovation and the role of technology. The paper draws on each of these specialisms in turn. It starts by providing the industrial context of the discussion and analysis. This feeds into three analytical sections examining: user creativity and intellectual property in video games; the implications of industry concentration for different articulations of creativity; and finally, an exploration of the potential ramifications of developments in the games sector for innovation at the dawn of the metaverse era. 

In doing so, this work sets the scene for future research, which brings together competition law, IP law, and cultural policy perspectives. With questions formulated throughout the paper, the authors embark on a project to review the changing landscape of gaming and its implications for creativity, innovation, access and integration. ... Transformations do not occur merely within the more traditional confines of ‘games’. As the gaming industry goes through a cloud transformation, it is also providing the basis for the development of something bigger: the metaverse. While virtual environments known as metaverse are still in their infancy, their connection to the gaming sector is clear. Popular games and gaming platforms like Minecraft, Fortnite and Roblox have been labelled ‘proto metaverses’. The immersive experience of metaverse lends itself well to gaming. At least some of the M&A trend in the gaming sector seems motivated by metaverse development. Established players in the gaming industry, like Microsoft and Epic Games, are taking shots at different aspects of metaverse. As such, metaverse development is an integral part of this project. 

Despite this close connection however, the metaverse goes beyond gaming, and metaverse projects encompass many aspects of human lives, from socialising to work, fitness, and even psychotherapy. Metaverse players are emerging outside of the gaming sector. It also has the potential to foster user creativity far beyond what video games have allowed so far and open up different business models. The authors of this paper are interested in the historical and contemporary connections between gaming and the metaverse. Some of the concentration trends and user creativity in the metaverse run parallel to the research focus in the gaming sector, setting the scene for an investigation into corresponding regulatory regimes. 

This paper is not intended to provide clear answers on what the changes in the games industry mean for IP or competition law. Rather, it aims to bring together a range of perspectives, identifying central research questions which can best be answered through a multi-perspective lens. The authors of this paper draw on different research specialisms and interests including: digitalisation of the cultural industries, copyright and notions of user creativity, digital services and product market definition, and competition law, innovation and the role of technology. The paper draws on each of these specialisms in turn. It starts by providing the industrial context of the discussion and analysis. This feeds into the three analytical sections examining: user creativity and intellectual property in video games; the implications of industry concentration for different articulations of creativity; and finally, an exploration of the implications of developments in the games sector for innovation at the dawn of the vaunted metaverse era. The concluding section synthesises each of these component parts in the closing discussion. It identifies the questions which will underpin the future research of the CREATe games project.

Concision

In The University of Exeter v Allianz Insurance PLC [2023] EWCA Civ 1484 Coulson LJ states 

[1] The issue in this appeal is whether the loss and damage caused in 2021 by the controlled detonation of a hitherto undiscovered World War II bomb was “occasioned by war” and therefore excluded by the applicable insurance policy. “Unguided gut feeling” (as it is called in one of the authorities) may suggest that the damage caused by a controlled detonation 79 years after the bomb was dropped, and 76 years after the war ended, was not “occasioned by war”. But those same authorities make clear that the approach to legal causation is more nuanced than that, and subject to specific rules and principles. At first instance, HHJ Bird (sitting as a High Court judge in the TCC) (“the judge”) applied those principles and concluded that the, or at least a, proximate cause of the damage was the dropping of the bomb during World War II, such that the exclusion applied. The central issue on this appeal is whether he was right to do so. 

[2] I should note that, although the issue in this case is primarily one of law, leading counsel on both sides referred to the authorities in a measured and controlled way, and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them.

Cancel

'The Forgotten Dreams of History-from-Below' by Priya Satia (2023) Journal of Social History comments 

In his 2003 essay, “On Agency,” Walter Johnson faulted the way scholars’ focus on agency presumed a “unidirectional trade between past and present,” treating “history writing as a mode of redress.” It marginalized “human-ness lived outside the conventions” of a “liberal notion of selfhood.” Restoring agency to the enslaved made the scholar feel better about themselves without making the world any better: “therapy rather than politics.” Looking back on this pivotal assessment of social history from the vantage of twenty years, its criticisms seem relevant to the use of agency in its time (and ours) more than to the concept’s original invention in the era of decolonization after World War II. In that time, drawing on anticolonial thought, history-from-below emerged precisely to contest liberal notions of selfhood and reform the existing, whiggish two-way trade between past and present. Revisiting that turn reminds us that questions raised by the category of “agency” were present at its making and that it is unlikely that academic scholarship can fulfill more than a therapeutic function without affiliated struggles to remake the academy and popular politics. Reminding us of history-from-below's foundational commitment to building up “the present-life of the past” and challenging the individuated ideal of selfhood, this essay notes the continued urgency of recovering alternative subjectivities as we face the planetary crisis created by dominance of Enlightenment notions of history and selfhood. Though scholarship in the academy may not be capable of the political impact Johnson imagined, it nevertheless furthers history’s actual end of internal transformation. ... 

In his now classic 2003 essay, “On Agency,” Walter Johnson faulted the way scholars’ focus on agency presumed a “unidirectional trade between past and present,” treating “history writing as a mode of redress.” It also marginalized “human-ness lived outside the conventions” of a “liberal notion of selfhood.” As a scholarly goal for those working on histories of enslaved people, restoring agency to the enslaved ultimately made the scholar feel better about themselves without making the world any better: “therapy rather than politics.” Looking back on this pivotal assessment of social history from the vantage of twenty years, its criticisms seem relevant to the use of agency in its time (and still perhaps ours) more than to the concept’s original invention in the more dimly lit era before 2003. As it turns out, the original turn to agency in the 1950s and 1960s contested liberal notions of selfhood and explicitly sought to forge a two-way trade between past and present. Revisiting the motivations behind that turn reminds us that questions raised by the category of “agency” were present at its making, illuminating what we can expect from academic scholarship on the dispossessed. 

In the 1950s, scholars like E. P. Thompson strove to rescue the dispossessed “from the enormous condescension of posterity” in the very particular context of (seeming) imperial twilight. In questioning the judgment of history, Thompson challenged the longstanding whiggish presumption that failure represented history’s verdict on a struggle. He redeemed “lost causes” to illuminate the historical agency of those that liberal narratives took as history’s objects rather than subjects, and to open up new possibilities for exercising political agency in his own time. He rummaged in the past for democratic forms of revolutionary agency that might empower twentieth-century people caught between the chilling conformism of the Communist Party and the oppressions of the Cold War British state. History writing was a mode of redress for the past and source of resistance in the present: therapy and politics. 

... The 1990s also saw renewed faith in liberalism in both the academy and the world. With Project Minerva, the new millennium’s “war on terror” once again coopted the Western academy into colonial projects. Even as awareness of the academy’s historic complicity in the oppressive projects of the modern era intensified and universities investigated their historic ties to slavery and colonialism, (partly as backlash against such “wokery”) they became more corporatized, slashing budgets for humanistic learning. 

This setting helps explain how by the time of Johnson’s critique in 2003, scholarship that diligently invoked “agency” wound up reinforcing “the universality of a liberal notion of selfhood” even in conversations about slavery. The “we” in Johnson’s worry that “we are practicing therapy rather than politics” gestured to a majority-white academic establishment; but history-from-below had been part of a challenge to this academy devoted to cultivating liberal selfhood and liberal empire. Those writing history-from-below from within the halls of a neoliberal academy are trying to make something of the bathwater without the baby. Hence the inability to go beyond reestablishing, ad nauseum, that members of every demographic are as “human” as the male white subject that was liberalism’s initial default human being. In the establishment academy, history-from-below was shorn of its original purpose of reimagining how humans act through culture and illuminating alternative selfhoods for our present. Historians obscured how enslaved people “theorized their own actions and the practical process through which those actions provided the predicate for new ways of thinking about slavery and resistance.”

Nannas and Implied Freedom of Political Communication

In Kvelde v State of New South Wales [2023] NSWSC 1560 Walton J has found that the Roads and Crimes Legislation Amendment Act 2022 (NSW) impermissibly burdens the implied freedom of political communication, in this instance regarding protest activity by the 'Knitting Nannas'. 

The Court states 

(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

It notes

 On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows: 

214A Damage or disruption to major facility 

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected. 

Maximum penalty—200 penalty units or imprisonment for 2 years, or both. 

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. 

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought. 

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions. 

The principal issues for the Court were: 

1. Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and 

2. Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”). 

The Court held: As to s 214A of the Crimes Act 

1. Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication. 

2. Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6). 

3. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice. 

4. The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms. 

5. Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified. 

6. The purpose of the impugned provisions is legitimate in its purpose. 

7. The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law. 

8. The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect. 

9. The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance. 

As to cl 48A(1) of the Roads Regulation 

1. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness. 

2. The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

UNDRIP

Senator Thorpe's underwhelming United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth) - lacking support from the Government or leading Opposition parties - has died in the Senate. 

The Explanatory Memo for the Bill states

 1. This Bill provides for measures to enact the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australian law. 

2. The Bill is in recognition of Australia's endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP. 

3. The intention of the Bill is to address Australia's lack of UNDRIP's implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP. 

4. The purpose of the Bill is to recognise and ensure that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. 

5. The Bill is further in recognition of the rights of Indigenous peoples enhancing harmonious and cooperative relations between the State and Indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith. 

6. All doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust. 

7. Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. 

8. The Bill reaffirms that Indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind. 

9. The Bill recognises the urgent need to respect and promote the inherent rights of Indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources. 

10. The Bill recognises the urgent need to respect and promote the rights of Indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States. 

11. The Bill is based in the conviction that control by Indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs. 

12. It recognises that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment. 

13. The Bill is in recognition of the contribution of the demilitarisation of the lands and territories of Indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world. 

14. The Bill recognises in particular the right of Indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child. 

15. The Bill is based on the idea that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and States. 

16. It affirms the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. 

Further 

25. This clause summarises the Act as establishing a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples by the Commonwealth Government. 

26. The clause outlines that the actions through which the Commonwealth Government is to achieve the implementation of the United Nations Declaration on the Rights of Indigenous Peoples are through ensuring that Commonwealth laws are consistent with the Declaration and through preparing and implementing an action plan to achieve the objectives of the Declaration in Commonwealth law, policies and practice. 

27. The clause further summarises the provision for the Prime Minister to present a report, each financial year, on the progress of actioning the implementation of the action plan and ensuring Commonwealth law consistency with the Declaration.

And 

The Bill provides a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the Commonwealth Government. The Bill is in recognition of Australia's endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP. The Bill intends to address Australia's lack of UNDRIP's implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP. The Bill requires the Commonwealth Government to: (a) take measures to ensure consistency between Commonwealth laws and the Declaration; and (b) prepare and implement an action plan to achieve the objectives of the Declaration (c) each financial year, prepare an annual review on the progress of (a) and (b). Human rights implications The Bill in its entirety positively engages human rights as it tries to address, to the extent possible provided by its content, that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, through recognising and ensuring that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. The Bill provides for the implementation of the UNDRIP to ensure Australia, in its law, policy and practice, complies with the UNDRIP, which the Commonwealth Government endorsed in 2009 but has not taken explicit action to advance. The Bill thereby positively advances the human rights of Indigenous peoples as outlined in the UNDRIP.