BioRights

Work by a Glocalist [sic] and Futurist for the England and Wales Law Society has resulted in Law In The Emerging Bio Age, which among other things offers a simplistic reference to overseas 'rights for domains' (conflating supposed formal rights with law on the ground). 

The report states 

This deep dive into what we might call the ‘emerging Bio Age’ – to distinguish it from the current digital Information Age – explores the evolving relationship between humans and living systems. That relationship will provoke new opportunities and risks that will demand oversight and new regulations, different contractual obligations, and create new alliances and conflicts as the rights of different human communities and natural systems themselves are challenged. 

Via an extensive scanning and systems mapping process, Jigsaw Foresight with the Law Society have in this project identified implications of emerging changes in this area that we have grouped as follows:

• New understandings of biotechnology and innovation 

• Second chances in addressing planetary limits and compensating for past damage to the global ecosystem 

• The rights of nonhumans and the greater role of nature in decision-making

The legal profession is already being affected by these emerging changes. Our purpose in this report is to explore those impacts and raise the overarching question of how humans can be better ancestors to future generations of all species and what that would mean for legal ethics. We raise many questions, some more uncomfortable than others, which is why we invite you to actively engage with the findings in this report. To help guide you, we offer conversation prompts at the end of the report to kickstart conversations at a formal or informal level. We also offer a deck of ‘postcards’ – concise creative artefacts to spark thoughtful ideas, connections, and conversations ... 

Scanning process and systems map 

As part of understanding a complicated topic, we identified categories of changes emerging that related to humans and living systems and mapped their interconnections. This creates an initial interconnected landscape of the issue, depicted visually as a summary systems map (see page 7). Each of the elements represents a category of trends and emerging changes identified during a four-month horizon scanning effort. ... 

The questions for the Law Society and the legal profession arise from the philosophical and ethical critiques of these shifts in humanity’s relationship to the planet and its living systems, and what that means in terms of ethics and rights. This in turn rebounds into the policy arena and decision- makers’ responsibilities in negotiating all of that by creating new laws and regulations – and working out how to enforce them. Three impact themes emerged from the general scanning data on this issue: New understandings, Second chances, and Rights for nonhumans. 

New understandings 

We begin with an exploration of the profound and surprising capabilities that are the direct result of advances in biotechnology research and innovation. Such discoveries have massive potential power for progress and may equally be weaponised or abused for exploitative ends. The efficacy of biotechnology regulation and risk mitigation for a range of areas must be examined. 

Second chances 

In this section we discuss how law and ethics can support us to mitigate future damage by operating within planetary limits and compensate for past damage to the global ecosystem. 

The practice of policy and law would need to tackle unintended consequences and perverse incentives, as well as a lack of transparency and accountability in financial disclosure and accounting practices. 

Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans. Rights have already been granted (and more are being sought in different jurisdictions globally) for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law may differ radically from a human rights-based approach. For example, if rights were granted to nonhumans or living systems, then questions of liability for damage to the environment, such as climate change or biodiversity loss, arise. 

Roundtable discussions 

The Law Society hosted two roundtable discussions on this topic with lawyers, legal professionals, and topic experts. These discussions reviewed the existing topic system map and suggested additional implications for the legal profession, regulations, contracting, and policy. The roundtables aimed to elicit additional thoughts and insights on the scan results from a wider range of perspectives. The discussions were lively, critical, and creative; participants concluded this issue was urgent, under-discussed, and a topic the legal profession should engage. Highlights included:

• Commodification and the emphasis on economic growth reinforce the notion of humanity’s dominion over nature rather than our embeddedness in nature and living systems – the legal profession must consider how to best support the transition to a circular economy. 

• The legal profession should consider how to use the circular, interlinked frame of the issue system maps to cut through assumed hierarchies and look at interdependencies and connections. 

• Consider what the issue might look like from the nonhuman, or the ecosystem, point of view. • Explore the concepts of rights, identity, and personhood as critical to humans’ relationship to living systems, and our stewardship of environmental quality. 

• Emphasise the moral and ethical framing of this issue, and what it might mean for the legal profession to embrace humanist, artistic, spiritual, and sacred perspectives that reframe our relationships with living systems and create a form of environmental guardianship that stems from the sacred. 

• Risk, regulation, enforcement, and liability regarding all the facets of this complex system of innovations and issues demand uncomfortable conversations that we must face head-on with multiple stakeholders to assess where responsibility and accountability will lie regarding living systems and humanity’s biosciences capabilities. 

• Grappling with this issue demands long-term time frames and multiple timelines; we must avoid the constraints of political and business cycles. 

• The legal profession needs to consider what all these points mean for training the next generation of lawyers and how best to equip them to support long-term solutions with the necessary innovations in legal frameworks. 

A legal profession for the Bio Age 

Whether you are based in a large or small law firm, an in-house legal department, a member of the Law Society staff, a policymaker or part of another expertise community, three patterns that need shifting, collectively, and at multiple levels, emerge from this deep dive:

• Capacity building, leadership, and nurturing well-rounded next generation lawyers who are mission led as well as legally minded – lawyers for a blue planet;

• Developing a professional well-roundedness as well as a sense of shared purpose, collective responsibility and commitment to be agents of change across the legal profession. 

• Reframing, repositioning, and connecting the legal profession to longer as well as shorter term horizons of uncertainty, disruption, and uncertainty, protecting time to explore longer horizons of change; and 

• Reassessing impact and impact evaluation.

If we are to take account of living systems, then legal frameworks need to be fit for the more-than-human future.

In discussing rights for non-human life forms the authors state 

 Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans because rights have already been granted and more are being sought in different jurisdictions globally for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law would likely differ from the human rights-based approach. For example, evolutionary development (including cognitive and emotional development) might be a right for nonhumans. 

When thinking about rights for nonhumans we acknowledge that human-constructed species hierarchies, i.e. cultural framings of nonhumans in binary groupings, determine who gets to live and who dies.  Current binaries include native and invasive, healthy and unhealthy, young and old, rare and common, cute and repulsive, pet and pest, sacred or profane. Such framings are sometimes applied to humans too. Using the example of ‘invasive’ species, we might consider how species become displaced as conditions in one location become inhospitable, e.g. due to heat, drought, pressure of other species. This is increasingly the case with climate change and the Argentinian town of Santa Isabel was overrun with unpleasant beetles when their habitat overheated. Humans also move because of rising sea levels, crop failure, conflict, and poverty. Positive human feelings for ‘charismatic’ nonhumans influence innovation and policy too, e.g. investment in new technology to talk to whales, people sending emails to trees, campaigns to ‘Save our English Oaks’. 

Some argue that in the current system human rights are not properly protected or balanced. If taxonomies like the species hierarchy are important in allocating rights, then we need to think about how bio body hackers who make extreme physical changes, biorobots, human-animal chimerae, and autonomous robots will be treated. We already see that transgender people and people with different characteristics are ‘othered’ and the effect of negative societal responses to body changes clearly links to the ‘cute or repulsive’ binary of the species hierarchy.

Regulation

'Testing the Regulator's Priorities: To Sanction Wrongdoers or Compensate Victims?' by Lachlan Peake in (2020) 39(2) University of Queensland Law Journal comments

As Australian corporate conduct came under intense and highly publicised scrutiny during the banking Royal Commission, so too did the conduct of the conduct regulator: the Australian Securities and Investments Commission (‘ASIC’). Following the Royal Commission, the regulator has adopted what it describes as ‘“Why not litigate?” operational discipline’ — a concept elaborated and recommended by Commissioner Hayne which is now the central tenet of ASIC’s updated enforcement model. This article discusses the hierarchy of strategic priorities evident in that enforcement model and asks: should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? 

Peake states

In the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (‘Final Report’ and ‘Royal Commission’, respectively), Commissioner Kenneth Hayne said:

The Australian community expects, and is entitled to expect, that if an entity breaks the law and causes damage to customers, it will compensate those affected customers. But the community also expects that financial services entities that break the law will be held to account. The community recognises, and the community expects its regulators to recognise, that these are two different steps: having a wrongdoer compensate those harmed is one thing; holding wrongdoers to account is another.

In response to the Royal Commission, and specifically the ‘Why not litigate?’ mantra elaborated and recommended by Commissioner Hayne, the Australian Securities and Investments Commission (‘ASIC’) has significantly reshaped its enforcement model. It is quite clear that this model prioritises the sanctioning of wrongdoers over the delivery of redress to victims. The aim of this article is to test the theoretical and practical justification for such a preference. The central question — should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? — arises because, while it will sometimes be possible to achieve both goals simultaneously, the prudent allocation of finite resources usually dictates that the enforcement strategy be tailored to the regulator’s priority. As Commissioner Hayne put it, the ‘regulator must approach [its] work ... with a clear view of what kinds of outcome’ it wants to achieve; those desired outcomes — especially the most desired outcome — will guide the regulator’s choice of enforcement tools.

Part II of this article demonstrates, as a preliminary factual matter, that ASIC’s current enforcement model does not prioritise the delivery of redress to victims of misconduct. Part III examines whether, if such a priority were adopted, it would be theoretically justified, evaluating insights from regulatory scholarship, social psychology and sociology. The discussion commences with an analysis of the breadth of the regime that ASIC is required to enforce and the considerable discretion it is given to calibrate its enforcement style and determine its priorities when regulatory objectives conflict. The Part concludes that regulatory and interdisciplinary theory does not provide a secure foundation for either a punitive or a compensatory priority where those aims are in tension. As such, the article turns to resolve the question by reference to two key practical issues: whether regulatory mechanisms are more effective than others at achieving compensation, considered in Part IV; and whether, assuming a compensatory priority were adopted, this would unduly hinder the fulfilment of other regulatory objectives, considered in Part V. 

Part IV commences with the recognition that the regulator ought properly to be mindful of both the availability and efficacy of alternative avenues for victims to obtain redress before determining its strategic priorities and resource allocation in response to a particular contravention or class of contravention. Interestingly, however, the analysis finds that regulatory mechanisms are among the most available and effective in delivering compensation when compared with private litigation, alternative dispute resolution (‘ADR’) and external dispute resolution (‘EDR’). Despite this, Part V argues that a compensatory priority would unduly impede both the regulator’s ability to achieve deterrence through enforcement and to improve compliance through its softer activities of persuasion, education and policy advice. The article therefore endorses ASIC’s updated enforcement model to the extent that it conceives the agency’s statutory role as best fulfilled where it prioritises the punishment or censure of regulated entities who contravene the law.

Peake concludes 

As Australian corporate conduct came under intense and highly publicised scrutiny during the Royal Commission, so too did the conduct of the conduct regulator. ASIC has fully embraced the recommendations made by Commissioner Hayne that deal with its own approach to enforcement. In updating its enforcement model, ASIC has been and will continue to be supported by legislative reform, both to its own powers and to the scheme of duties and penalties that apply to regulated entities. The central change to ASIC’s enforcement approach is its adoption of the ‘Why not litigate?’ operational discipline. That mantra effects a renewed strategic prioritisation of the need to ensure appropriate punishment or censure of those who break the law, above and beyond other goals that the regulator may be interested in achieving, such as the delivery of adequate redress to victims of misconduct. The purpose of this article has been to interrogate that prioritisation and consider whether it would be preferable for the regulator to adopt the opposite position, and more readily focus its resources on the delivery of compensation to victims of misconduct. 

The central argument advanced in this article — that a regulator compensatory priority would be an effective way to deliver redress to victims but would unduly impede other desirable regulatory objectives — used the assumptions and logic of responsive regulation as its yardstick. It was beyond the scope of the article to engage in a substantive critique of that theory or its symbolic manifestation in the enforcement pyramid. However, given the extensive adoption of responsible regulation, including by ASIC, it is logical to discuss the merits of a compensatory priority, or indeed any shift in regulator focus, from that perspective. The article began by considering the underlying theoretical question: whom or what does the regulator serve? This discussion was approached broadly, evaluating insights from diverse sources: conventional regulatory scholarship, social psychology, and sociology. The answer was the amorphous ‘public interest’, which leaves little secure theoretical footing for a compensatory priority. As such, the practical implications of such a shift were taken to be the most important considerations. There is sufficient evidence, in my view, for concluding that regulatory mechanisms are among the most effective at delivering compensation. However, a regulator’s choices are complex and its resources must be deployed to ends other than compensation alone, particularly deterrence and compliance. My analysis suggests there is a credible risk that substantial violence would be done to the fulfilment of those goals if the interests of victims were to be preferred in a case of conflicting regulatory objectives. Such a priority should not be adopted.

OPCA

In Schneider v Colhoun, 2022 SKQB 163 the Saskatchewan Court states

[1] The plaintiff has brought an application for judgment against the defendants, his former residential landlords. He claims he is entitled to judgment of $1,024,743.00. He says he is entitled to this because the defendants failed to respond, but not to his statement of claim – they filed a defence and counterclaim, to which the plaintiff has actually replied – but to some arcane quasi‑litigation process of his own apparent devising. 

[2] The grounds for the plaintiff’s application are impossible to decipher. It is as if “ludicrous” and “risible” had a child. In chambers the plaintiff attempted to explain same but the water he was swimming in just became murkier. The plaintiff has fully bought into the bamboozle, and he does not appear able to extricate himself from same notwithstanding that the bamboozle is demonstrably incorrect and devoid of legal foundation and merit. … 

[15] You might think with this classic and linear pleadings history, this matter would be following the classic litigation path. 

[16] You would be wrong. 

[17] The plaintiff has established an alternate litigation path, one unknown to our procedures in this Court be those in statute or the rules or the common law. To explain this alternate path (perhaps alternate reality) will take some time. 

[18] The plaintiff’s current notice of application came before me in Regina chambers on June 7, 2022. It was filed May 20, 2022 – before the defendants’ defence was due and indeed before it was filed. While not easy to discern, the application sought judgment of $1,024,743.00 from the defendants as a result of their “default”. “Default”, of course, is a term of art in The Queen’s Bench Rules. It means the defendants had failed to serve and file a statement of defence in a timely way. That is not the case here, since as at May 20th the defendants still had time to file a defence even if I assume the claim was served on them on May 4th, the date it was issued. Also, in the case at bar, the defendants have not been noted for default of defence pertaining to the statement of claim. 

[19] So. The plaintiff’s present notice of application seeks the following remedies:

1. Remedies related to Default of Defence section 3‑21 Norm and Laura Colhoun in the amount of $1,024,743 dollars as the Defendants did not respond to the attached “Notice of Demand”, “Notary Certificate Notice of NON_RESPONSE”, or the Notarial Certificate of Dishonour. 

2. 3‑24 Claim for debt or liquidated demand and pecuniary damages or detention of goods by Norm and Laura Colhoun in the amount of $1,024,743 dollars.

[20] Thus the plaintiff’s application is a curious blend of a (mis)application of The Queen’s Bench Rules and processes of the plaintiff’s devising or adoption, the provenance of the latter not being entirely clear. Let me explain. 

[21] The plaintiff’s supporting material states that the plaintiff, “a living soul”, sent two registered letters to the defendants containing some documents: - December 17, 2021. The plaintiff sent a “Notice of Demand” to the defendants. He says he received no response to same. - January 20, 2022. The plaintiff sent a “Notice of NON‑RESPONSE” to the defendants, to which he also says he received no response. 

[22] The plaintiff purports to put this information before the Court in his document entitled “VERIFIED DECLARATION IN THE NATURE OF AN AFFIDAVIT”. It is not an affidavit. It is not affirmed or sworn, nor does it comply with The Queen’s Bench Rules pertaining to affidavits. Nevertheless I have considered this document. 

[23] After asserting the two mailings (above) the plaintiff goes on to say this: In light of the dishonors and failure to provide a defence as noted above, I hereby request your services as a notary public for the Province of Saskatchewan, to evidence the dishonor and failure to provide a defence as outlined above by re‑presenting my Notary Notice of Dishonour and Default Further, Affiant sayeth naught. 

[24] The Notice and Demand of December 17, 2021 is attached to this fiat as Appendix “A”. The Notice of Non‑Response of January 20, 2022 is attached to this fiat as Appendix “B”. These documents speak for themselves. I will not attempt to explain them. I am not sure I could. 

[25] There’s more. The plaintiff filed an undated, untitled document which begins “Information in support of the Statement of Claim”. It purports to be just that, but it is not in sworn form and is not actual evidence before this Court on this application. It includes a list of items for which specific sums are claimed, running the gamut from killing his cat to moving expenses to expensive liquor to sexual aids.  ...

[27] Next, as Appendix “D” I have attached the document the plaintiff calls his “Affidavit of Facts, Decree Under Claim of Right and Fee Schedule”. To be fair, this is a comprehensive document. It begins “The Creator created the universe, the earth and life” and ends with the extensive claims the plaintiff makes against these defendants. These documents draw distinctions as to the nature of the plaintiff: his corporeal self, his private self (to which no laws apply), his sole shareholder/beneficiary self in his name, his agency self. The claims advanced by these various personages are themselves varied. For example there are numerous human rights offences alleged, for each the plaintiff says he is entitled to 50 grams of gold. It’s sort of like catching a leprechaun apparently. 

[28] I am not going to go through each of these documents in detail. Suffice it to say that they are complex, convoluted, labyrinthine and – alas – unknown to law. 

[29] The plaintiff has also filed a partially completed Form 3‑22, affidavit for default judgment on a debt or liquidated demand. 

[30] These are the documents that the plaintiff relies upon for the present application. These constitute his alternate claim mechanism which, nevertheless, he attempts to incorporate into the standard system of civil litigation in this Court. I do not pretend to understand why he must use our Rules if these other processes bestow such wide rights upon him. … 

[32] I commence my analysis by noting that at the chambers hearing I recognized that the plaintiff was entitled to represent himself in these proceedings, but strongly urged the plaintiff to obtain legal advice, if not legal representation. It is fair to say he did not embrace my suggestion. 

[33] The obvious starting point in this analysis is to reference Meads v Meads, 2012 ABQB 571, [2013] 3 WWR 419. Mr. Justice Rooke crafted this masterful review of the tactics of “Organized Pseudolegal Commercial Argument (OPCA) Litigants” over a decade ago. It withstands the test of time and has been widely adopted in Canada. He succinctly described the nature of OPCA Litigants at para. 4 of his decision:

[4] OPCA litigants do not express any stereotypic beliefs other than a general rejection of court and state authority; nor do they fall into any common social or professional association. Arguments and claims of this nature emerge in all kinds of legal proceedings and all levels of Courts and tribunals. This group is unified by: 1. a characteristic set of strategies (somewhat different by group) that they employ, 2. specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and 3. the commercial sources from which their ideas and materials originate. This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t.

[34] Having regard to the rest of the judgment in Meads and the material and arguments presented to me on this application, I have absolutely no hesitation in finding that Mr. Schneider falls within the OPCA category. His arguments fall within several of the categories set out by Justice Rooke in Part VI of Meads. I will point out five of the most salient of these. 

[35] First, the plaintiff asserts that he is not subject to the authority of statute, rules, this Court or the rule of law generally. In Meads this is dealt with beginning at para. 267. The case at bar is an interesting hybrid. While the plaintiff discounts this Court’s ability to set and govern its own process as a court of inherent jurisdiction, and while he sets forth and relies upon his own set of “laws” and “rules”, he nonetheless adheres roughly to this Court’s process by bringing a statement of claim and a notice of application for judgment. One wonders why, if his Notice of Dishonour system has legitimacy and efficacy, he needs to engage at all with this Court’s process. 

[36] In chambers the plaintiff asserted that this “system” of rights enforcement was widely known and recognized. I asked him where I could find the basis for this system. His reply was “It’s the notary process”, expressed in a tone of frustration that I would not know that process and embrace same. His view is that notaries are the real judges. 

[37] In particular the plaintiff repeatedly asserted that the “Uniform Commercial Code” applied, that it had been adopted in Canada, and that he was entitled to use it and I was bound to enforce it. Again, this is markedly similar to Meads. At paras. 26 and 27 Justice Rooke noted as follows:

[26] Mr. Meads stated that his birth certificate has an associated bond with large amounts of money that could easily discharge in full the claims advanced by Ms. Meads. He said this Court could order that payment. He then attempted to provide me with an envelope, presumably containing documents. Mr. Meads said the contents of the envelope had been “filed internationally”: a UCC filing, a Canadian filing, a commercial security agreement, an identity bond, “actual and constructive notices”, hold harmless and identity agreements, non‑negotiable security agreements, an affidavit of his status, a copyright and trade‑mark of his name contract, and definitions of the words used in those documents. “UCC” means the “Uniform Commercial Code”, which is U.S. commercial legislation. 

[27] I refused the envelope, and noted that if the envelope was abandoned then I would put those materials in the garbage. I reassured Mr. Meads that I will apply the laws of Alberta and Canada, and that while he is in Court, he will follow the Court’s rules. Mr. Meads’ reply was that was “unacceptable”, and he claimed that the “UCC” is “universal law”.

[38] The troubling nature of this Uniform Commercial Code argument was further dealt with at para. 150 of Meads:

[150] Similarly, Mr. Meads in his documents and arguments references the Uniform Commercial Code [the “UCC”], which is American legislation to harmonize commercial transactions within the United States. That too is not relevant to this proceeding, and will not be applied by this court. That said, as the caselaw survey that follows illustrates, the UCC is also a common motif in material from Canadian OPCA gurus, and forms a significant element in much OPCA mythology. However, why anyone would believe that American commercial legislation would apply in Canada is baffling. Still, OPCA litigants indicate that this legislation has a broad, even extraordinary scope. My office has recently received a document where an OPCA litigant said the UCC applies to governments, “... whether interstellar, intergalactic, international, national, state, provincial, or local ...” [emphasis added].

[39] This finding in Meads has been adopted in other cases. See, for example, Perreal v Knibb, 2014 ABQB 15 at para 8, 581 AR 275. 

[40] This Code has no application in Canada or Saskatchewan, despite the plaintiff’s sweeping pronouncements to the contrary. I have not applied it to the application before me. This highlights the first aspect of the plaintiff’s OPCA arguments. 

[41] Second, the plaintiff asserts that without his express agreement the law simply does not apply to him. He regards the laws of this nation and this province more as opt‑in provisions than as laws. 

[42] One example of this in the within case is from the material filed by the plaintiff. In the material sent to the defendants the plaintiff included the following:

The Creator created the universe, the earth and life. Humans, as a creation of The Creator are inherently equal and have inherent rights. These rights, bestowed by The Creator, cannot be compromised or undone by any other, but The Creator. That being said, the state or government was created by humans and is thereby subservient to humans. The creators of Canada acknowledge these inherent rights cannot be violated and have stated the Charter and Constitution only applies to the government, see Appendix A. I, Geofrey J Schneider, am the living man. As such, I am not, at any time performing on behalf of, or contracting with the government. I am always in the Private unless I issue a statement otherwise. Therefore, all government statutes, acts and codes do not apply to me. As a man of The Creator I follow inherent jurisdiction which states that I am free to do whatever I see fit as long as I DO NO HARM. [Emphasis added]

[43] Through his materials and arguments the plaintiff plainly asserts the legitimate laws of Canada and Saskatchewan simply do not apply to him unless he wishes them to apply. This is another OPCA characteristic. 

[44] Third, the plaintiff asserts that this alternate legal process has the force of law and is legitimate. It is not. By way of example and as previously noted, in chambers he asserted quite vociferously that the Uniform Commercial Code is the law of Canada. It is not. He is incorrect. The Uniform Commercial Code is not the law of Canada or Saskatchewan. 

[45] Fourth, the plaintiff asserts his person is split into several components. I have already referenced that he is in this legal action as a “private person”. For example his “Notice and Demand” of December 17, 2021 is signed by him at page 4 as “Principal in Fact, and the Only Authorized Representative for GEOFREY J SCHNEIDER including any and all alphabetical or numerical derivations thereof”. 

[46] As well, in his “Affidavit of Fact” supporting his alternate process claim he states (page 1), “Let it be understood: the legal entity/person mentioned prior to and following this statement shall not be mistaken for the legal entity on the Birth Certificate created by the Government for the Government.” Later in that same document he states as follows:

If as the sole shareholder/beneficiary I appoint myself, Geofrey J Schneider the sole Executor/Director and Principal Administrator of my Legal Person/Entity, GEOFREY J SCHNEIDER, with full liability, then your role is as follows …

[47] This intrapersonal schism of the plaintiff is a recurring theme flowing through his material and arguments. This is a hallmark of the OPCA litigant. 

[48] Fifth, the plaintiff asserts that he can unilaterally make the defendants agree with him, have a contract with him, and be subject to his belief system. 

[49] I will refer to a few of the plaintiff’s submissions to illustrate this point. His “Notice and Demand” (Appendix “A” hereto) contains his assertions to this effect. His notice purports to command the defendants’ response within ten days, failing which he is entitled to his claimed remedies. This notice reads in part:

Your failure to respond, within ten (10) days as stipulated, and rebut with particularity everything in this letter with which you disagree, is your lawful, legal and binding agreement with, and admission to the fact, that everything in this letter is true, correct, legal, lawful and binding upon you in any court anywhere in Canada, without your protest or objection or that of those who represent you. As your silence is your acquiescence, notification of legal responsibility is the first essential of due process of law. Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. … 

I: Geofrey J Schneider accepts your open and binding offer of contract to form a firm and binding, private, bilateral contract between both parties, in which you agree to pay Geofrey J. Schneider by certified cheque in the amount of $1,024,743 one million, twenty four thousand and seven hundred and forty three dollars … 

The foregoing lawful NOTICE AND DEMAND is made in good faith and explicitly without recourse and now constitutes a binding contract and any deviation there from must be and will be treated as a breach of contract, a violation of substantive due process, a breach of public trust and a breach of fiduciary duty.

[50] In the chambers discussion the plaintiff asserted there was nothing untoward about any of this, that this mode of contract formation and enforcement was widely recognized all over the country. Hmmm. Not in my village. 

[51] Meads deals with the unilateral formation of agreements commencing at para. 447. A few excerpts illuminate:

[447] OPCA litigants frequently attempt to unilaterally foist obligations on other litigants, peace officers, state actors, or the court and court personnel. These foisted obligations take many forms. None, of course, creates any binding legal obligation. In that sense, these are yet more ‘magic hats’. … 

[449] Common examples of these foisted agreements purport to appoint someone a fiduciary, establish a contractual relationship or declare an OPCA person no longer has an obligation, such as to pay income tax. Some purport to unilaterally settle lawsuits or legal claims, without court direction. Others provide a system of predetermined fines. 

[450] Sometimes the unilateral agreement says that the recipient has a certain window of time to respond and disagree, otherwise they are held to have agreed to the terms of the unilateral agreement. That may be framed as a requirement that the recipient must rebut or prove themselves exempt from the foisted obligation. However, some foisted unilateral agreements do not even provide that courtesy, and instead allegedly indicate the recipient is bound, whether they like it or not. 

[451] Foisted unilateral agreements are almost always expressed in a documentary form. Many foisted unilateral agreements include dramatic language and warnings.

[52] This aspect of this case is, too, a feature of the OPCA litigant and arguments. 

[53] In this case the plaintiff is something of a poster boy for OPCA litigants and arguments. His arguments make no sense in numerous respects: grammatically, logically, legally. They are, in a word, nonsense. While the plaintiff presented as truly believing that he could somehow do this, at law he cannot. 

[54] There is absolutely not a scintilla of merit in the plaintiff’s present application for judgment. I have not the slightest hesitation in dismissing his application for judgment. …. The plaintiff did not depend entirely on his alternate system, but tried to incorporate same into the legitimate legal system in existence in this province even as he asserted that legitimate process did not apply to him. He should have stuck to the latter. His bifurcation of his claims and arguments have resulted in extra expense to the defendants. … 

[60] This is an unfortunate situation. The plaintiff has bought the bamboozle. He cannot now see its true nature. He cannot discern that it is nonsense, that it has absolutely no place in Canadian law. Like a stubborn terrier, he has bitten into the bamboozle so hard that he will not let go, no matter how foul it begins to taste. The bamboozle has captured him and he cannot admit it. The plaintiff has ceded his independent thinking to the charlatans who created this alternate legal theory; I hope he can recover it.

Obscurity

The recent large-scale Optus data breach has been followed that the telco will provide short-term funding to affected consumers for credit watch services by Equifax. As I've noted in a forthcoming article Equifax itself featured in a very large-scale data breach in 2017. 

'Interoperable Obscurity' by Thomas Kadri in the Journal of Free Speech Law (Forthcoming) comments 

Data brokers are abuse enablers. By sharing people’s information, brokers thwart obscurity, stimulate surveillance, and ultimately facilitate interpersonal abuse. This Essay canvasses four regulatory responses to brokered abuse: prohibiting abusive acts, mandating broker transparency, limiting data collection, and restricting data disclosure. Though some of these measures have merit, none is adequate, and several recent privacy laws can even make matters worse. Put simply, the current legal landscape is neither effective nor empathetic. 

Of particular concern, prevailing approaches can exacerbate victims’ trauma by forcing them to engage repeatedly with their abuse and vulnerability. Due partly to existing laws, people face a whack-a-mole task of pleading to remove their data from every single broker separately. But lawmakers could put an end to this traumatic experience through a regulatory regime of “interoperable obscurity.” In short, brokers could be compelled to design their systems to let a person obscure their information across all brokers with a single request. 

Requiring brokers to support a centralized obscurity process would represent the kind of empathetic regulation needed to tackle abuse. The right to defend oneself is sacred in many cultures, but those responsible for creating both law and technology have been slow to empower people with rights and tools of self-defense fit for the digital age. Interoperable obscurity is no panacea, but it could be a start.

Junk

In Nigel Stock v Rocla Ltd [2022] FWC 2597 Deputy President Clancy states 

 [33] In the period leading up to his termination and throughout the conduct of this proceeding, Mr Stock has enlisted the assistance of Mr Alex Smith, a “non-paid representative.” It is also apparent Mr Stock utilised template correspondence prepared by “De Cline”, which I am satisfied is a moniker used by Mr Smith. This is because subsequent to determining Mr Stock’s unfair dismissal application, I heard and determined another unfair dismissal matter in which Mr Smith was involved, Jemimah Scale v Coles Supermarkets Australia Pty Ltd (Scale). In Scale, it was apparent that Mr Smith was similarly using the moniker “De Cline” and the same or very similar template correspondence described as having been prepared by “De Cline.” 

[34] Mr Smith advocated on Mr Stock’s behalf at the hearing and it is evident he has maintained involvement, having filed Stock’s submissions in response to Rocla’s costs application. Despite the arguments he advanced in this matter (and Scale) being unsuccessful, Mr Smith has nonetheless persisted with them in resisting, on behalf of Mr Stock, this application for costs. In particular, the costs submissions Mr Stock filed on behalf of Mr Stock state, inter alia:

“...2. The living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD (COST APPLICANT), were put on Legal Notice on several occasions with regard to the COST APPLICANT’S COVID-19 policy/directions that were in fact unlawful/ illegal and, as such, were: 2.1. given several opportunities to provide the law relied upon for the COVID-19 policy/directions, more specifically in terms of the legislative, statute, federal Act; 2.2. made aware by failing to do so the living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD, AQUIESCED that no such law nor authority existed; 2.3. made aware that the claimed COVID-19 vaccines were not approved. There are vast amounts of information available on various Government sites, such as reaffirming this fact that the current claimed COVID -19 vaccines are all only provisionally approved and are a part of a CLINICAL-TRIAL, thus making the coercion direction policy void ab initio. 

3. The company employees of the ROCLA PTY LTD (COSTS APPLICANT) claim they had no choice but to comply with a mandate, however, the prima facie evidence is that the COSTS APPLICANT had the same choice as everyone else - namely, with regard to participating in the mandate - the COSTS APPLICANT had the choice to accept or DECLINE. ROCLA PTY LTD (COSTS APPLICANT) chose to accept, however that acceptance does not apply to any employees who choose not to do so. 

4. It is the absolute fact that no law exists permitting coercion/pressure with threat and menace to participate in a clinical trial, in this instance, the CLAIMED COVID-19 clinical trial vaccine. 

5. Regardless of the outcome of the Commission, there are no grounds for any form of costs order against the Nigel STOCK (COSTS RESPONDENT). ROCLA PTY LTD (COSTS APPLICANT) made it clear in the unfair dismissal case that there were no vexatious or malicious actions in play with regard to Nigel STOCK’s actions, and as such, as for any claims that the application was doomed from the beginning shows a lack of probity on behalf of ROCLA PTY LTD (COSTS APPLICANT). 

6. The application for Costs is DECLINED, DECLINED, DECLINED. 

7. Any further actions will be seen as deliberate vexatious and malicious conduct towards Nigel STOCK (COSTS RESPONDENT) Regards Alex SMITH on behalf of Nigel STOCK 19 JULY 2022” 

[35] In addition to this matter and Scale, I have noted that Mr Smith has been involved in at least these additional unfair dismissal applications decided by the Commission during 2022:

1) Elizabeth Cogger v New Horizons Enterprises Limited, determined on 24 May 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar, if not identical, submissions were advanced by Mr Smith; 

2) Shantay Moriah May v Wesley Mission Queensland,  determined on 28 June 2022 and in which it would appear some correspondence substantially similar, if not identical, to “De Cline” template correspondence was used and similar submissions were advanced by Mr Smith; 

3) Fiona Howard v Uniting Care Health, determined on 15 July 2022 and in which submissions advanced by Mr Smith were described as being neither helpful nor persuasive and simply a re-ventilation from earlier unsuccessful efforts by him; 

4) Emma Frances Sommerville v University of Tasmania, determined on 15 July 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced; and 

5) Mills & Ors v Village Roadshow Theme Parkes Pty Ltd, determined on 31 August 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced in four related applications. 

[36] My experience of Mr Smith was that despite evincing an attitude to the Commission that was belligerent, verging on dismissive, he has nonetheless been intent on persisting with certain submissions despite grudgingly acknowledging during the conduct of Scale that it was for a court to determine the legality or otherwise of public health orders and directives. In the two matters in which he appeared before me, Mr Smith attempted to advance propositions that were plainly incorrect, such as contending that any line managers who had sought to ensure their employer’s compliance with public health orders would be held personally liable for any adverse consequences that flowed. While representing Jemimah Scale, Mr Smith himself sent correspondence to a line manager accusing him of criminal activity and threatening his arrest.[29] 

[37] Mr Smith appears to have persisted with the same or similar strategies and submissions in ten different unfair dismissal applications before five different Commission Members presiding in four states. Even though Mr Smith has continued to be unsuccessful, he does not yet appear to have modified his approach. In his most recent attempt at representation, Mr Smith stooped to advancing the submission that there is “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole.” 

[38] My conclusion is that despite Mr Stock appearing to have invested significant trust in Mr Smith, the role Mr Smith has played while purporting to represent Mr Stock has been reckless to the point of deleterious. While employed, Mr Stock relied on the ‘notices’ prepared by “De Cline” that in my view comprised “a disparate collection of concepts and assertions that lacked a coherent thread.”  These notices did not assist, and I maintain my previously stated view. I also note that even though Mr Stock was on notice that Rocla would pursue costs against him from 7 April 2022 if successful, Mr Smith insisted on advancing such arguments at the hearing as the proposition that Mr Stock was not capable of being a manufacturing worker covered by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) because the concrete stormwater and drainage pipes and range of precast products produced and distributed by Rocla were not goods. These are just two examples of the poor quality of Mr Smith’s “representation.” 

[39] No doubt Mr Stock was aggrieved by the circumstances that befell him and anxious about the implications of being dismissed from his employment, but this would not ordinarily absolve him of all responsibility for filing an unfair dismissal application without reasonable cause and when it should have been reasonably apparent to him that it had no reasonable prospects of success, or for causing Rocla to incur costs by failing to discontinue the matter. Ultimately, however, I am persuaded that the particular circumstances of this case save Mr Stock because having had the misfortune to fall under the influence of the stubborn, misguided and almost wholly incompetent Mr Smith, I do not consider that Mr Stock should have a Costs order visited upon him. 

[40] Nonetheless, the involvement of Mr Smith cannot be left uncommented upon. As I have outlined, the “representation” provided by Mr Smith has been a feature of at least ten unfair dismissal applications before the Commission during 2022. None have succeeded but, in each case, the respondent to the application has been required to comply with directions of the Commission and commit the necessary resources to defend its position at both conciliation and during the arbitral process. Additionally, a not insignificant amount of the Commission’s time and resources has been absorbed dealing with the applications spearheaded by Mr Smith and this has been at the expense of other parties with matters before the Commission. Had Mr Smith been a lawyer or paid agent, he would have fallen within the meaning of a “representative” in s.401 of the Act and at risk of being the subject of an application for costs in some or even all of those matters. However, as things currently stand, there is a regulatory gap in the Act when it comes to individuals such as Mr Smith who impose themselves on the Commission’s processes with all care, no responsibility and no “skin in the game.”

In Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438 the Court states

[16] In a notice of appearance dated 4 July 2022, Amber and Wenico entered an appearance for the named defendants as ‘Attorney of Records ... appearing under duress for the beneficiaries as the Defendants are the injured party in this matter’. In statutory declarations dated 7 July 2022 and filed in the proceeding, Amber and Wenico say they each ‘deposited the natural person into a private trust’ (which I understand to be called ‘the Mane Trust’), in respect of which Amber has been appointed power of attorney. In their written submissions dated 25 July 2022, the defendants assert that ‘Amber, the woman, and Wenico, the man, are the Creditor’s [sic] and acting as agent for the Defendants, whom in the legal realm, the Defendants are seen as the Creditor’s [sic]’. 

[17] The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence.

Commercial Mugshots

'The new Bedlam: a legal and ethical analysis of commercial mug shot websites' by Jennifer L. Lanterman and Catherine A. Houk in (2022) 32(2) Ethics and Behaviour 178-193 comments 

Legal and ethical concerns have been raised since the inception of the commercial mug shot website industry in the United States. These issues include the violation of the presumption of innocence, privacy interests, humiliation, extortion, and sensationalizing crime. These websites lend comparison to Bedlam asylum, which allowed visitors to mock and humiliate the patients. The popularity of these websites renders it essential that the legality and ethics of these websites be reevaluated. The deontological and utilitarian perspectives offer converging assessments regarding the need to regulate the industry and to modify the practices of law enforcement agencies and news organizations.

The authors state 

The popularity of commercial mug shot websites in the United States presents legal and ethical issues. Internet search tools are continually advancing and allowing users to easily access an exceptionally large amount of personal information about people without their consent and to use it to generate profit. Mug shots of individuals who have been arrested are easy to find using Internet search engines, which obtain information from a host of government and commercial websites dedicated to posting the facial images of people who have been arrested. Commercial websites acquire these mug shots from law enforcement agencies that post their mug shots in online databases. These commercial websites generate a profit through click-related advertisements and by charging arrestees to have their mug shots removed from the sites in some jurisdictions (Batchelder, 2014). 

Commercial mug shot websites present major concerns related to public information laws and individual rights and protections. The main ethical issue presented by commercial mug shot websites is whether the republication of mug shots serves a legitimate public interest or if the consequences are more harmful than beneficial to everyone involved. To answer this question, the purpose commercial mug shot websites serve in practice must be evaluated, and the public interest must be weighed against the interest of individual rights and protections. The arguments in favor of the continued operation of commercial mug shot websites, include public interest and safety, the Freedom of Information Act (FOIA) and state-level public records laws, and First Amendment protections. The arguments against commercial mug shot websites include infringement on the presumption of innocence, privacy interests, humiliation, extortion, and sensationalizing crime.

Facial Biometrics

The Facial recognition technology: Towards a model law report from UTS states

 There is growing community concern about the rise of facial recognition technology (FRT). As with other jurisdictions around the world, Australian law does not provide the legal guardrails necessary to ensure that FRT is developed and deployed in ways that uphold basic human rights. 

The Model Law is intended to be applied to any individual or organisation that develops, distributes, or deploys FRT in Australia. It covers use of FRT by both government and private sector organisations. 

The precise human rights impact of FRT turns on how the technology is developed, deployed and regulated. Therefore, the Model Law proposed in this report focuses on how FRT is used in practice, adopting a risk-based approach grounded in international human rights law. While the report has been written primarily by reference to Australian law, the reform principles set out in this report are applicable to other, comparable jurisdictions. 

This report proposes reform. It provides an outline of a model law for FRT (the Model Law). The Model Law aims to foster innovation and enable the responsible use of FRT, while protecting against the risks posed to human rights. 

This report recognises that FRT can be used consistently with international human rights law, and indeed in ways that achieve public and other benefits. However, FRT necessarily also engages, and often limits or restricts, a range of human rights. As a result, the use of FRT can – and has been proven to – cause harm. 

Australian law does not provide the legal guardrails necessary to ensure that FRT is developed and deployed in ways that uphold basic human rights. 

Why is reform needed? 

There is rapid, almost exponential, growth in the development and deployment of FRT and other remote biometric technologies. These technologies can identify and extract a wealth of sensitive personal information about an individual, often without the individual’s knowledge, let alone consent. Australian law, like the laws of most jurisdictions around the world, was not developed with the prospect of widespread use of FRT in mind. In particular, our law was not drafted to address the challenges posed by FRT to human rights such as the right to privacy, freedom of assembly and association, freedom of expression and of movement. In Australia and other similar jurisdictions, several existing laws apply to the development and use of FRT. For example, Australian privacy law includes several provisions dealing with the handling of biometric information. Yet, on the whole, these existing laws are inadequate in addressing many of the risks associated with FRT. 

Some jurisdictions have responded to the rise of FRT by prohibiting certain uses of FRT. Most famously, in 2019, the city of San Francisco issued a legal moratorium that prohibits many uses of FRT by the San Francisco Police Department. While this sort of moratorium may be useful in addressing a very specific risk, it is a limited and blunt instrument, which can leave many uses of FRT unregulated. In addition, if a moratorium were introduced to prohibit all development and use of FRT (something that no major jurisdiction has done), it would preclude uses of the technology that have a demonstrable public benefit. 

Against this backdrop, a small but growing number of jurisdictions have begun to explore a more nuanced approach to regulating FRT. Especially in the United States and Europe, risk-based laws have been proposed to enable beneficial forms or applications of FRT, while restricting or prohibiting harmful uses of FRT. This report has been drafted to apply the lessons from those reform processes to create a nuanced, risk-based, FRT-focused Model Law. 

Many civil society organisations, government and inter-governmental bodies and independent experts have sounded the alarm about dangers associated with current and predicted uses of FRT – including the inadequacy of existing law to protect communities and individuals from having their human rights restricted. Several leading trans-national technology companies have expressed concern that existing laws do not protect against harmful use of FRT. This has prompted a number of companies to voluntarily limit their own use of FRT, including in the products and services they sell. However, many other companies have not tempered their use of FRT. 

What is facial recognition technology? 

Facial recognition technology is defined in this report as any computer system or device with embedded functionality that uses data drawn from human faces to verify an individual’s identity, identify an individual and/or analyse characteristics about an individual. 

This report focuses on FRT, which is a specific form of biometric technology that has some unusual, if not unique, characteristics. In considering broader reform in this area, the authors urge that the reform principles set out in this report be adapted to apply also to other forms of remote biometric technology, including those based on an individual’s voice, gait, ear, iris, body odour and other biometric data. 

How does the Model Law work? 

The Model Law sets out a risk-based approach to FRT, grounded in human rights. Under the Model Law, anyone who develops or deploys an FRT Application must first assess the level of human rights risk that would apply to their particular FRT Application. In assessing this risk, it will be necessary to consider a range of factors including:

• how the FRT application functions 

• where and how it is deployed (for example, the spatial context)  

• hether affected individuals can provide free and informed consent.

• the performance or accuracy of the application, and

• the effect of any decisions made in reliance on the FRT application’s outputs.

Drawing on these factors, the Model Law provides for a structured way of assessing the human rights risk of each specific FRT Application through a ‘Facial Recognition Impact Assessment’ (FRIA). FRT Developers and Deployers must complete this FRIA process, and assign a risk rating to the relevant FRT Application: base-level, elevated or high risk. That assessment can be challenged by members of the public and the regulator. 

To address this human rights risk, the Model Law contains a cumulative set of legal requirements, limitations and prohibitions that apply based on this risk assessment. The Model Law imposes stricter legal constraints, and prohibitions, as the level of risk for any particular FRT Application increases. 

Some of the Model Law’s requirements are procedural – for example, FRIAs must be registered with the regulator and made publicly available to ensure transparency of operation and use. Other requirements are substantive – for example, the Model Law applies and extends existing privacy law obligations to FRT Applications. In addition, the Model Law provides for the creation of a new FRT technical standard that would have the force of law. 

The Model Law prohibits the development and use of high-risk FRT Applications, subject to three exceptions: where the regulator provides specific authorisation; in genuine research; and in the context of law enforcement and national security agencies, where the Model Law provides for specific legal rules, including a ‘face warrant’ scheme. 

Finally, the report recommends that a suitable regulator be legally empowered and resourced to oversee the development and use of FRT in Australia. The Office of the Australian Information Commissioner (OAIC) would be the most obvious candidate to regulate the development and use of FRT in the federal jurisdiction, with a harmonised approach in respect of the state and territory jurisdictions. 

Next steps for urgent reform 

There is an emerging consensus across diverse stakeholder groups that reform in this area is both urgent and important. This report calls on Australia’s Federal Attorney-General to lead the reform process by taking four key steps:

1. The Attorney-General should introduce a bill into the Australian Parliament, based on the FRT Model Law set out in this report. This bill would apply to FRT within the regulatory purview of the Australian Government. 

2. The Attorney-General should assign regulatory responsibility to the Office of the Australian Information Commissioner, or another suitable regulator, empowering that body to take a central role in the creation of an FRT technical standard, and in providing advice for FRT Developers, Deployers and affected individuals. The Australian Government should provide appropriate resourcing to the FRT regulator to fulfil these new functions. 

3. The Attorney-General should initiate a process with his state and territory counterparts to ensure that the law on FRT is harmonised across all Australian jurisdictions. This process should ensure the law is consistent and easy to understand for FRT Developers, Deployers and affected individuals regardless of where one is located in Australia. 

4. The Attorney-General should work with other relevant federal ministers to establish an Australian Government taskforce on FRT. The taskforce would have two functions. First, it would work with all relevant Federal Government departments and agencies, such as the Australian Federal Police, to ensure their development and use of FRT accords with legal and ethical standards. Second, it would lead Australia’s international engagement on FRT, so that Australia can have a positive influence on the development of international standards and other assurance mechanisms for FRT, and to ensure that Australia’s legal approach to FRT is consistent with international law and international best practice.