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.

Policing

The report of the Joint inquiry by the NZ Independent Police Conduct Authority and the NZ Privacy Commissioner into Police conduct when photographing members of the public states 

This joint inquiry was prompted after whānau reported Police photographing their rangatahi in circumstances they considered unfair or unjustified. Subsequent media coverage led more people to report similar experiences. As a result, IPCA and OPC undertook a joint investigation beginning in March 2021, to examine Police photography of persons who have not been detained for the suspected commission of an offence. 

In the course of the joint investigation, we considered five individual complaints in which whānau claimed Police had either uplifted rangatahi for care and protection reasons but had then photographed them in relation to a criminal investigation or had stopped their rangatahi in public places and photographed them without their consent. Two of these complaints were historic in nature and, given the time that had passed and the lack of records or other available information, we were unable to establish the facts or make any findings. 

In relation to the three remaining complaints, we found that Police were not justified in photographing the rangatahi, as the photographs were not necessary for a lawful policing purpose. We also found that, in these incidents, Police had not properly sought consent from the rangatahi or their parents or caregivers before taking the photographs, and had not adequately explained why the photographs were being taken and what they would be used for. In one incident, we found Police had wrongly threatened to arrest a rangatahi if they did not consent to being photographed. 

Our interviews with officers in relation to these complaints suggested that there were broader questions about the appropriateness of current Police practice in this area. We therefore extended the inquiry to an examination of the way in which photographs or video recordings of members of the public (referred to in the remainder of this report as “photography”) are being taken, used and retained in a variety of policing contexts. We interviewed a range of front-line officers and managers in four Police districts about their own practice, whether this was representative of general practice and their understanding of the law and Police policy.  During this broader investigation, we also found that Police were regularly taking duplicate sets of “voluntary” fingerprints from youths who ended up in Police custody for suspected offending and retaining them for a longer period than permitted by the regime for compulsory prints under the Policing Act. We have included consideration of that practice within the scope of this report. 

General findings 

Police use of photography depends on the relevant powers that are available in each policing situation and the respective constraints that apply. Where Police are taking a photograph of a person or persons under any statutory power (which relate primarily to a search scene or a person in custody), they need to comply with the relevant specific legislative threshold and applicable constraints. The Privacy Act should not be used as a basis for taking photographs which circumvent those constraints. Where Police take photographs of people in contexts outside those specific statutory situations, officers must comply with the Privacy Act and the information privacy principles (IPPs) within it, taking into account the status of digital photographs as sensitive biometric information. 

The way that the privacy principles operate as a constraint depends on the policing purpose and the particular circumstances that Police encounter. IPPs 1- 4 are the source of the privacy safeguards that apply when Police are taking photographs. These dictate the need for a lawful purpose and set out the expectation that the person will be informed at the time of the purpose for the photograph and their consent sought. 

The privacy safeguards are flexible and Police can depart from these where necessary. For example, the Police can use covert photography where this is justified and proportionate to their policing purpose. 

Overall, we have found aspects of both Police policy and practice are inconsistent with this framework and breach individual rights. 

Officers are routinely taking photographs when it is not lawful for them to do so. Many are under the misapprehension that if they obtain the consent of the person photographed, this gives them the necessary authority, even though they do not have a lawful purpose in terms of the Privacy Act. 

When they do take photographs in circumstances that comply with the information privacy principles, many officers appear to have very little understanding of the law relating to the retention of these photographs under the Policing Act or the Privacy Act. As a result, thousands of photographs of members of the public are kept on the mobile devices (mobile phones, tablets etc) of individual officers or, if transferred to the Police computer system, not destroyed after there is no longer a legitimate need for them. 

Fundamentally, these problems have arisen because Police as an organisation have not developed appropriate training, guidance or policies to enable officers to use their powers and collect personal information effectively and lawfully. In particular, their roll-out of technology and mobile devices has not been accompanied by sufficient training and support, which has resulted in inconsistent and improper practices. 

We have therefore concluded that Police policy, procedures and training need to be significantly revised and enhanced to reflect that photographs are sensitive biometric information and to ensure that, when Police are photographing people, they are doing so only when either there is a specific statutory authorisation or there is full compliance with the information privacy principles.

The recommendations are 

Taking photographs for intelligence purposes 

R 1 Police should develop a consolidated and comprehensive policy covering the use of photography to collect personal information under the Privacy Act for general intelligence gathering purposes. This policy should develop clear, practical guidelines for complying with the Privacy Act when stopping individuals in public and taking photographs for intelligence gathering purposes including: (a) setting an appropriate threshold under the Privacy Act (IPP1) for the collection of personal information: when turning their minds to their reasons for collection officers must be able to articulate a reasonable possibility, based on more than mere conjecture, that the individual being photographed could be relevant to a particular or likely investigation (the lawful purpose). (b) unless an exception applies, informing the individual of the purpose for taking the photograph, the consequences for the individual if the photograph is not provided and other information required under the Privacy Act (IPP 3); (c) setting out the applicable thresholds for exceptions to the requirement to inform the individual. In relation to the maintenance of the law exception, that requires a reasonably held belief that not complying with IPP 3 is necessary to avoid prejudice to the maintenance of the law; (d) the circumstances that require the consent of the individual to ensure that photographing the individual is fair and does not intrude to an unreasonable extent on their personal affairs. For example: (i) if an officer is engaging with an individual and informing them of the reason and purpose for the photograph, it will generally be fair to also obtain their consent, particularly if the individual is a youth; or (ii) if seeking the individual’s consent would be disproportionately prejudicial to the reason for taking the photograph or to the maintenance of the law, that risk of prejudice can justify proceeding without consent; and (iii) that, if a photograph is taken after the refusal of consent, the individual must be informed that the photograph is mandatory. 

R 2 Police policy should provide clear guidelines for complying with the Privacy Act when stopping a youth in public and taking photographs for general intelligence-gathering purposes including: (a) reflecting the youth specific protections in the Oranga Tamariki Act and UNCROC; (b) tailoring the explanation under IPP 3 to youth in an age-appropriate way; and (c) reflecting the requirements of IPP 4 when officers are deciding to proceed with a photograph of a youth and require officers to engage with the youth’s family, whanau or caregiver and, in the case of a child or tamariki under the age of 14, to obtain their consent (or if they are unavailable another appropriate and independent adult), before taking a photograph of the youth. 

R 3 Police policy should require officers to record the circumstances and considerations that they rely on to justify the collection of personal information for purposes of intelligence gathering. 

R 4 Police policy should include guidance on the limits of an officer’s power to take photographs or video recordings when that officer is lawfully on private premises. 

Taking photographs for investigation purposes 

R 5 Police should develop a consolidated and comprehensive policy covering the use of photography to collect personal information under the Privacy Act for non-crime scene identification. This policy should develop clear, practical guidelines for complying with the Privacy Act when stopping individuals in public and taking photographs for purposes of investigations including: (a) setting an appropriate threshold under the Privacy Act (IPP1) for the collection of personal information: when turning their minds to their reasons for collection officers must be able to articulate a reasonable possibility, based on more than mere conjecture, that the individual being photographed could be relevant to a specific investigation that is currently underway (the lawful purpose); (b) unless an exception applies, informing the individual of the purpose for taking the photograph, the consequences for the individual if the photograph is not provided and other information required under the Privacy Act (IPP 3); (c) setting out the applicable thresholds for exceptions to the requirement to inform the individual. In relation to the maintenance of the law exception, that requires a reasonably held belief that not complying with IPP 3 is necessary to avoid prejudice to the maintenance of the law; (d) the circumstances that require the consent of the individual, to ensure that photographing the individual is fair and does not intrude to an unreasonable extent on the personal affairs of the individual concerned. For example: (i) if an officer is engaging with an individual and informing them of the reason and purpose of the photograph, it will generally be fair to also obtain their consent, particularly if the individual is a youth; or (ii) if seeking the individual’s consent would be disproportionately prejudicial to the reason for taking the photograph or to the maintenance of the law, that risk of prejudice can justify proceeding without consent; and (iii) that, if a photograph is taken after the refusal of consent, the individual must be informed that the photograph is mandatory. 

R 6 Police policy should provide clear guidelines for complying with the Privacy Act when taking photographs of youth for investigation purposes including: (a) reflecting the youth specific protections in the Oranga Tamariki Act and UNCROC; (b) tailoring the explanation under IPP 3 to the youth in an age-appropriate way; and (c) reflecting the requirements of IPP 4 when officers are deciding whether to proceed with a photograph of a youth and require officers to engage with the youth’s family, whanau or caregiver and, in the case of a child or tamariki under the age of 14, to obtain consent from them (or if they are unavailable another appropriate and independent adult), before taking a photograph of the youth. 

R 7 Police policy should require officers to record the circumstances and considerations that they rely upon to justify the collection of personal information for investigation purposes. 

R 8 Police policy should confirm that Police may take photographs at a crime scene provided that the privacy of those unrelated to the incident is taken into account. This could be addressed by the redaction of images that include individuals who are not relevant to the investigation. 

Traffic checkpoints and other traffic stops 

R 9 Police should prioritise review of training and policy on LTA checkpoints and stops to ensure that: (a) policies reflect the current legal constraints, including the application of the privacy principles when taking photographs for non-LTA purposes; (b) checkpoints and other traffic stops are not established for the primary purpose of collecting photographs and personal information for a collateral purpose; (c) information gathered in the course of an LTA checkpoint or stop is not used for other purposes (e.g. general intelligence) unless lawfully collected for that other purpose, or it comes under a valid use exception under the Privacy Act; (d) photographs are taken for identification purposes at traffic checkpoints and other traffic stops when an infringement notice is being issued only when the driver’s identity is not able to be ascertained in other way (eg by examination of the driving licence and accompanying photograph); and (e) officers receive regular training on the limits of taking photographs at LTA checkpoints and traffic stops. 

Protests and other large gatherings 

R 10 Police should review the Demonstrations policy to reflect that: (a) an appropriate threshold for photography is where the officer believes, based on some articulable facts, that there is a reasonable possibility of disorder occurring; and (b) recording demonstrators for no reason other than their presence in an otherwise lawful and peaceful demonstration, with the aim of identifying them for potential future demonstrations, is not necessary for a lawful Police purpose. Issuing notices and proof of service 

R 11 As part of a general review of policy and guidance relating to photographs of members of the public, Police should review and update policies and process relating to proof of service. This should make it clear that officers may photograph individuals holding a summons or infringement notice, as long as officers properly explain the purpose and use of the photograph, take it by fair and reasonable means, and limit the use of the photographs to demonstrating proof of service. 

Responding to monitoring by members of the public 

R 12 As part of a general review of policy and guidance relating to photographs of members of the public, Police should ensure there is guidance about the lawful basis for photographing or video recording members of the public monitoring Police. This should make clear that officers should do so only if the officer has reasonable concerns that the person’s behaviour poses a threat or is obstructing them in the performance of their duty. 

Interaction with youth in Police stations 

R 13 Police policy should reflect that “voluntary consent” - whether or not it is informed - does not make the otherwise unlawful or unnecessary collection of personal information lawful or compliant with the Privacy Act 

R 14 Police should cease the practice of taking photographs of youth on a ‘voluntary’ basis where a youth has been uplifted or detained, except where a photograph is necessary for Police’s care and protection role to ensure the safety of the youth. 

R 15 Police should cease the practice of taking biometric prints from youth on a ‘voluntary’ basis. 

R 16 Police policy should identify: (a) the limits on taking ‘voluntary’ photographs of youth (and adults) present in Police stations on a voluntary basis under IPP 1; and (b) where a youth is concerned, the requirement for a parent, caregiver or other appropriate adult to be present to give informed consent for a ‘voluntary’ photograph. 

R 17 Police should prioritise training for officers to improve understanding of: (a) Police’s functions under the Oranga Tamariki Act in the youth justice and care and protection contexts; and (b) the youth-specific protections due to vulnerability. 

Use 

R 18 Police policy should provide clear guidelines on the purposes for which lawfully collected personal information in the form of photographs and videos may be used under the Privacy Act (IPP 10). 

Retention 

R 19 Police policy and guidelines (including any relevant disposal schedule) should be reviewed and amended to ensure the technology policy is fit for purpose to support compliance with Police’s obligations under the Privacy Act (and other relevant legislation) and provide guidance for officers routinely using mobile devices for mixed personal and policing purposes including, in particular: (a) the consistent storage and uploading of images and associated data to secure locations, and minimising the retention of images on individual devices and the duplication of images across Police systems; (b) limits on using individual devices to capture images where other Police devices or technology is specifically set up for that purpose; (c) protocols on handling sensitive or traumatic images; (d) limits on the use and retention of images (and copies) in individual devices and in Police systems; (e) routine review and deletion of images from mobile and desktop devices; (f) protocols for purging and replacing devices. 

R 20 Police should prioritise regular training for all officers on using mobile devices to ensure legal compliance. 

R 21 Police should review systems and implement the ability to audit compliance with: (a) updated technology policy and the handling of photographs of individuals on mobile devices; and (b) the deletion of identifying particulars in accordance with statutory time limits. 

R 22 Police should develop a strategy to improve its staff’s fundamental understanding of the application of the Privacy Act to the collection and protection of personal information with a particular focus on photographs as sensitive biometric information covering: (a) policies and processes; (b) training; and (c) methods for updating knowledge and practice on an ongoing basis. 

R 23 In implementing the strategy, Police should establish a rolling programme of reviews and updates of key policies, and develop and deliver agency-wide training to its staff and relevant contractors on: (a) the decision-making framework and procedures to be followed to photograph individuals and youth in public; and (b) storage and deletion procedures.

Legal Writing

In Edwards v Nine Network Australia Pty Limited [2022] FCA 509 Wigney J states 

[1] A Current Affair is a television program which, as its name would tend to suggest, occasionally airs stories concerning current affairs. On 24 May 2021 and 1 June 2021, the program aired hard-hitting stories about a complicated triangular custody dispute involving a man, a woman and a dog. The woman, Ms Gina Edwards, is a person who is said to have some notoriety as a lawyer who has worked in the United States. The dog, a cavoodle named Oscar, apparently had some notoriety as one of those cute furry pets that annoyingly pops up uninvited on one’s social media feed – assuming one has one. The man, Mr Mark Gillespie, had no particular notoriety, other than perhaps as a result of his cameo performance in the stories in question. 

[2] The dispute between Ms Edwards and Mr Gillespie was about who was rightfully entitled to Oscar’s canine affections and affiliation. The stories broadcast on A Current Affair included dramatic footage of confrontations between Ms Edwards and Mr Gillespie in a dog park on Sydney’s lower north shore – all while Oscar gambolled nearby, apparently oblivious to the highly charged emotions of his putative masters. 

[3] Anyway, as events transpired, Ms Edwards did not take too kindly to the way she was portrayed in the stories broadcast on A Current Affair, or the related web-based articles which largely reproduced them. She sued the companies responsible for publishing the broadcasts and articles in question, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited (collectively Nine), as well as the reporter who appeared in and contributed to the production of the relevant stories, Steve Marshall. She alleged that the broadcasts and articles defamed her because they implied or imputed that: she was a thief who stole Oscar the cavoodle; she stole Oscar for her own financial benefit; she deliberately delayed a previous court case about Oscar; she exploited Oscar for her own financial benefit; she adopted delay tactics so as to prolong her unlawful possession of Oscar; and she failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. Ms Edwards claimed that the broadcasts and articles, and their “grapevine effect”, had gravely injured her character and reputation and resulted in her suffering substantial hurt and embarrassment. 

[4] The proceeding is at a very early stage. Already, however, it has become mired in procedural squabbles between the parties. The rot first started when Nine and Mr Marshall failed to file their defence within the 28 days allowed in the Federal Court Rules 2011 (Cth): see r 16.32. Following some rather intemperate and fairly unhelpful correspondence between the respective solicitors, Nine and Mr Marshall sought an extension of time in which to file their defence. When that application first came before the Court, Nine and Mr Marshall appeared cap in hand, but sans any draft defence. The explanation given for the delay was also far from satisfactory or persuasive. It was little better than the proverbial dog having eaten their homework. 

[5] Ms Edwards opposed the application. Once bitten, twice shy, she decried. She suspected that Nine and Mr Marshall were sniffing around for some ex post facto justification for their broadcasts. She submitted that Nine and Mr Marshall be required to lay their cards on the table and produce a draft defence before being granted an indulgence by the Court. She also submitted, not without some justification, that Nine and Mr Marshall had failed to provide any, or any satisfactory, explanation for why they had not filed their defence within the permitted time. 

[6] Nine and Mr Marshall were directed in those circumstances to come back when they had completed their homework, at least in draft. ...

Stalking

The final report of the Victorian Law Reform Commission's report on stalking states 

 1 This report recommends ways to improve the justice system’s response to non-family violence stalking. 

2 People who experience stalking can be trapped in a frightening situation that is hard to identify and escape. Many do not report it to police, and they may not even realise that stalking is a crime. 

3 If they do report stalking, they may not get the response they need from the justice system. 

4 Getting help through the justice system in court can be a long, frustrating and traumatic experience. 

5 Too often people who stalk do not change their behaviour. They may stalk with no consequence. 

6 The law and justice system must change so that: • People who experience stalking are protected by adequate safety measures. • The justice system responds to the justice needs of victim survivors. • People who stalk are accountable for their behaviour and are given the opportunity to address it. 

Understanding and responding to stalking 

7 Stalking is not well understood. Information about stalking is hard to find, incomplete or not clear enough. 

8 There should be education about stalking for people in the community and those who work in the justice system. 

9 People need to know more about what stalking is, how best to respond to it and the justice and support options available. 

10 For people who work in the justice system, education should include practical information that will help them respond to stalking effectively. 

Supporting people who experience stalking 

11 It can be isolating, all-consuming and frightening to be stalked. People who experience stalking should be well supported. 

12 People who experience stalking need quick, practical and ongoing support which might be different to other victims of crime. For example, those who experience cyberstalking may need tracking software removed from their phones. 

13 Victoria has the foundations of a strong support system. But it needs to be improved to make it accessible and effective for stalking victim survivors. 

14 The Victorian Government should implement recommendations on victim support from recent inquiries. It should remove any barriers to eligibility that victim survivors of stalking face. 

15 It should fund a stream of quick financial assistance to help victim survivors pay for practical things such as home security. 

16 People who experience stalking should be quickly connected with the services that can support them. 

17 Independent advocates should provide victim survivors with ongoing and ‘joined up’ support and information, to help meet their needs and enable them to feel safe. The ever-present nature of stalking makes it the kind of crime that justifies this intensive support. 

The civil response and stalking 

18 The main civil response to non-family violence stalking, the personal safety intervention order (PSIO) system, is under strain. This makes it challenging for all stalking matters to get the attention they need. 

19 The civil response should be more focused than it is now. We recommend developing evidence-informed guidance for identifying and prioritising stalking matters. 

20 The Magistrates’ Court should apply the guidance to identify stalking matters that need a specialised approach. 

21 A specialised approach—which could include a specialist workforce, court infrastructure and supports—would help make the response to stalking more effective, efficient and less traumatic for victim survivors than it is now. 

22 A potential way to implement a specialised approach for non-family violence stalking matters is through the current system of family violence courts. If that is done, these matters should be separate and clearly identified as non-family violence matters. 

23 Mediation should be used for cases that are assessed as not involving stalking or other serious harm. This would free up the civil response to focus on stalking and other serious harm. 

24 People who experience stalking should be treated fairly, be able to present their best evidence and avoid further distress. This means: • expanding the ban on publishing what happens in court, with some exceptions • preventing respondents from personally cross-examining protected witnesses in court, and funding Victoria Legal Aid to conduct the cross-examination • expanding access to legal advice and representation for PSIO applicants. 

25 Respondents, not just applicants, in PSIO matters should have access to legal advice and representation. 

26 Other changes could be made to help the civil response run efficiently and safely: • The recent implementation of online applications for PSIOs should be monitored and evaluated. • The court should be able to choose to make orders even when no one has applied. • Higher courts should rely on material from the lower courts for PSIO appeals. 

27 The response to children in the PSIO system must take into account evidence about their development and try to prevent long-term contact with the justice system. 

28 PSIOs should not be made against children under the age of 14. 

29 Alternative pathways should be available for children aged 14 and over who engage in stalking behaviour. The law should require that these pathways be explored before making a final PSIO against child respondents. 

30 Access to legal advice and representation should be expanded for child applicants and respondents in PSIO matters. Courts should be able to order that a child is legally represented. 

The criminal response and stalking 

31 The criminal justice system is not dealing effectively with stalking. 

32 People who work in the justice system can find the stalking offence hard to understand and apply. Some of them think the offence is hard to investigate and prove. 

33 The stalking offence should be drafted clearly so that it is more easily understood. 

34 Victoria Police should ensure that guidance and training are given to police to strengthen stalking investigations. 

35 Victim survivors are often told to stop using their devices to prevent cyberstalking. ‘Unplugging’ is not the appropriate solution. Victoria Police should improve its capability to respond to cyberstalking. 

36 There is no need for new criminal offences for breaches of PSIOs. 

37 While the police are increasingly responding to breaches, there are still some victim survivors who feel let down by the justice system. Victoria Police should improve how it responds to breaches. If it decides not to file a charge for a breach, it should provide its reasons to the victim survivors. 

38 People who experience stalking should have extra protections in criminal proceedings: • They should have access to alternative arrangements that make it less difficult and less traumatic to give their evidence than it is now. • Court infrastructure and facilities should be designed to protect them. • The accused should be prevented from personally cross-examining protected victims, and Victoria Legal Aid should receive funding to conduct the cross- examination. 

Responding to people who stalk 

39 For too long the response to stalking has focused on what the victim survivor is expected to do to avoid being stalked. The focus should shift to the people who commit the crime. 

40 There is some evidence that therapeutic treatment may reduce the risk of re- offending. 

41 People who stalk need to get the appropriate intervention early to stop their behaviour. But reforms, including early intervention, will only work if there are services in place. 

42 To protect victim survivors and the community there should be a coordinated, system- wide response to stalking behaviour, focusing on early intervention. 

43 The response should deliver accessible and effective treatment and support programs to people who stalk. 

44 If in the future there are strong indicators that compelling people to have treatment is an effective response to stalking in the PSIO system, the Victorian Government should consider introducing court-ordered treatment. 

45 In Australia, Victoria has the highest maximum penalty for the offence of stalking. Changes to sentencing legislation are not needed, but courts should have guidance on sentencing people who stalk. 

Future improvements 

46 Relevant data and research about stalking is urgently needed. The Victorian Government should address gaps in data and research on stalking and the justice system’s response to it. 

47 As the knowledge base on stalking improves, so should the response to stalking.

The resultant recommendations are 

 1. The Victorian Government should: 

a. identify gaps in data and research on non-family violence stalking and the justice system’s response to it 

b. identify shortcomings in existing data and research on non-family violence stalking and the justice system’s response to it 

c. support additional data collection and research to fill these gaps and address these shortcomings 

d. monitor the emerging data and research on non-family violence stalking and the justice system’s response to it 

e. ensure that any emerging data and research gaps are filled and shortcomings addressed. 

2. In ensure that frontline and specialist police improve their capability to identify, investigate and respond to non-family violence cyberstalking. implementing Recommendations 1-9 of the interim report, Victoria Police should 

3. In implementing Recommendation 8 of the interim report, Victoria Police should ensure that referrals are made efficiently to services that provide technical support for non-family violence cyberstalking for victim survivors, as set out in Recommendation 7 of this report. 

4. a. The Victorian Government should resource and support public education about non-family violence stalking and cyberstalking. This education should be based on relevant research. It should include material on: • identifying stalking and how it is a crime • the harms caused by stalking • the different forms stalking can take • how stalking is different from harassment and similar conduct • common stalking myths • how people engaging in stalking can get help to stop what they are doing • how people who experience stalking can respond, including options available through the eSafety Commissioner • the available support options and what to expect from these • the available justice options and what to expect from these.   

5. Public education should: • be ongoing and adequately resourced • be accessible • include strategies and material tailored to reach diverse communities • equip family and friends to respond constructively to disclosures • include a focus on children and young people and be delivered in schools and higher education settings, as well as to the broader community • equip health providers to respond constructively to disclosures. The Victorian Government should provide funding and support to the Judicial College of Victoria, and other agencies if appropriate, to develop and deliver ongoing training, based on relevant research, for judicial officers, judicial registrars, court staff and prosecutors to improve their response to non-family violence stalking and cyberstalking. Education should address: • barriers to accessing the justice system and responding to diverse experiences of stalking • the nature and dynamics of stalking • the effects of trauma from being stalked and how to respond in a trauma-informed way • support and justice options for stalking victim survivors • assessment and referral pathways for people who stalk. 

b. Education for prosecutors should also include the possible adverse effects of negotiating away stalking charges. 

c. Education for judicial officers, judicial registrars and court staff should also include: • identifying stalking behaviour • the impact of personal safety intervention orders on children • how to frame conditions of personal safety intervention orders for cyberstalking • when to order a pre-sentence assessment report. 

6. The Victorian Government should implement the victim support recommendations in the Centre for Innovative Justice Strengthening Victoria’s Victim Support System: Victim Services Review report and recommendations in the Legislative Council Legal and Social Issues Committee Inquiry into Victoria’s Criminal Justice System, especially recommendations 36, 37, 40, 42, 49 and 50. 

7. a. In implementing reforms to victim support, the Victorian Government should ensure that victim survivors of non-family violence stalking receive support that is practical, timely and ongoing. 

b. For victim survivors of non-family violence cyberstalking the Victorian Government should also ensure that the support provided by private technology companies is regulated and safe. 

c. The Victorian Government should ensure that for victim survivors of non-family violence stalking, including cyberstalking: • pathways to early support are developed • any barriers to eligibility are addressed • access to support is improved for underserved groups • guidelines and training are provided to victim support staff on stalking. 

8. The Victorian Government should fund a stream of timely financial assistance so that victim services can administer flexible support packages or brokerage to assist victim survivors of non-family violence stalking, including cyberstalking. This should include financial assistance to implement safety plans. 

9. a. The Victorian Government should consult on and co-design a model of victim support that uses advocates to provide continuous support for people who have experienced non-family violence stalking. These independent advocates should: • provide information about justice options and progress through the justice system • support victim survivors to understand and exercise their rights • assist with planning for their safety when they are experiencing stalking • support their individual needs • liaise with, and advocate for victim survivors to, services and the justice system. 

b. The model of an independent advocate should: • be available as soon as a disclosure of stalking is made and not depend on a person’s engagement with the criminal justice system • include diverse points of referral and access to such support • enable advocates to provide individualised support, including specialised expertise and understanding of working with people from diverse backgrounds • give priority to people who are currently underserved. 

10. The Victorian Government should provide all necessary assistance to the Magistrates’ Court of Victoria to enable the Court to develop evidence-informed guidance for identifying and prioritising non-family violence stalking in personal safety intervention order matters. 

11. The Magistrates’ Court of Victoria should apply the guidance developed in Recommendation 10 to identify non-family violence stalking personal safety intervention order matters that require a specialised approach. The Magistrates’ Court of Victoria should implement a specialised approach to these matters. 

12. The Magistrates’ Court of Victoria should consider the extent to which the specialist family violence courts should be used for non-family violence stalking personal safety intervention order matters, and how the non-family nature of those cases should be differentiated within the current system. 

13. The Victorian Government should resource the Magistrates’ Court of Victoria to implement Recommendation 11. 

14. The Victorian Government should strengthen pathways from the personal safety intervention order system to mediation, in non-stalking matters only, by: 

a. making the Dispute Settlement Centre of Victoria (DSCV) mediation guidelines more available to police, magistrates, judicial registrars and court staff 

b. funding the DSCV police referral program to re-establish referrals directly from police 

c. funding DSCV to increase Dispute Assessment Officer attendance, and ensuring that as many matters as possible and appropriate have access to the personal safety intervention order mediation program, with a focus on enhancing resources for matters in rural and regional Victoria. 

15. In implementing Recommendations 1 and 3 of the interim report, Victoria Police should ensure that appropriate referrals to mediation are made for people who are not victim survivors of stalking. 

16. The Victorian Government should amend section 123 of the Personal Safety Intervention Orders Act 2010 (Vic) to extend the prohibition on publication to matters involving adults. 

17. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169 of the Family Violence Protection Act 2008 (Vic) to provide for judicial discretion to make an order allowing publication when the court reasonably considers that it is: a. in the public interest b. just in the circumstances. 

18. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169B of the Family Violence Protection Act 2008 (Vic) to enable victims to consent to publication, with appropriate safeguards. 

19. a. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to provide for a category of ‘protected witnesses’ as in the Family Violence Protection Act 2008 (Vic) that bars respondents from personally cross-examining protected witnesses. 

b. In determining whether to declare a person a ‘protected witness’ for the proceeding the court should consider the following circumstances: • the nature or seriousness of the alleged prohibited behaviour • relationship between the affected person and respondent • the level of fear of the affected person • whether cross-examination could perpetuate stalking • any specific needs of the affected person. 

20. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent provision as in section 71 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented respondents for cross-examination of the protected witness. 

21. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent of section 72 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented applicants or protected witnesses for cross-examination of the protected witnesses. 

22. Victoria Legal Aid should be funded to provide the legal representation described in Recommendations 20 and 21. 

23. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for applicants and respondents in relation to non-family violence stalking personal safety intervention order matters. 

24. Eligibility for access to legal advice or representation for applicants and respondents in non-family violence stalking personal safety intervention order matters should be determined based on the guidance developed in Recommendation 10. 

25. The Victorian Government should monitor and evaluate the implementation of online applications for personal safety intervention order matters. Findings should inform the use of online applications to ensure it is safe for use in non-family violence stalking matters and does not reduce the capacity of the court to provide an effective response to these matters. 

26. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to allow for interim orders to be made on the court’s own motion as is the case in the Family Violence Protection Act 2008 (Vic). 

27. The Victorian Government should amend the appeals process that applies to personal safety intervention orders to align with the amendments in the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) to de novo appeals from the summary jurisdiction. 

28. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to prevent personal safety intervention orders being made against respondents under the age of 14 years. 

29. a. The Victorian Government should establish and fund an evidence-informed therapeutic program to respond to children engaging in non-family violence stalking behaviour. 

b. A purpose of the program should be to avoid the need for a personal safety intervention order being made against a child respondent. 

c. The Victorian Government should evaluate the effectiveness of the program and improve the program based on the findings of the evaluation. 

30. The Victorian Government should include a legislative presumption against the making of a final personal safety intervention order against child respondents 14 years and over in the Personal Safety Intervention Orders Act 2010 (Vic). PSIOs should only be available against respondents of this age where: 

a. a therapeutic process (such as the one developed under Recommendation 29) has been undertaken but was unsuccessful, or 

b. in cases where the therapeutic process is inappropriate in all the circumstances of the case. 

31. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to include a provision similar to section 62 of the Family Violence Protection Act 2008 (Vic), empowering the court to order that a child who is neither an applicant nor respondent be legally represented. 

32. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for child applicants and respondents in relation to non- family violence stalking personal safety intervention order matters. 

33. The Victorian Government should amend the stalking offence in section 21A of the Crimes Act 1958 (Vic) to improve its clarity and practical application. The amendments should: 

a. clarify the meaning of the ‘course of conduct’ element based on established case law principles 

b. redraft the offence to create three offences based on intentional, reckless and ‘objective fault’ forms of stalking, with the elements clearly laid out and the different degrees of culpability clearly shown. 

34. In implementing Recommendations 1-4, 6 and 9 of the interim report, Victoria Police should ensure that sufficient guidance and training is given to frontline and specialist police to facilitate strong and effective investigative and evidentiary practices when considering and authorising stalking charges under section 21A of the Crimes Act 1958 (Vic). 

35. The Crime Statistics Agency should conduct a qualitative review to identify reasons for the attrition of the stalking offence in the criminal justice system. The review should examine: 

a. police and prosecution stalking files 

b. judicial reasons for not finding charges are proved in contested hearings in the Magistrates’ Court of Victoria. 

36. a. Victoria Police should review its operational policy and practice material to develop clear guidance for police members to follow when responding to alleged breaches of personal safety intervention orders in relation to victim survivors of non-family violence stalking. 

37. a. Where an alleged breach of a personal safety intervention order has occurred, but upon investigation Victoria Police decides not to file a charge, Victoria Police should provide an explanation for its decision not to charge to the person protected by the order. 

b. Victoria Police should ensure that responses to alleged breaches are timely and capable of meeting the safety needs of victim survivors. 

b. If requested by the protected person, this decision should be provided in writing. 

38. The Victorian Government should implement Recommendations 37, 40 and 41 from the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process report to amend the Criminal Procedure Act 2009 (Vic) to include a ‘protected victim’ category and provide protections in the form of alternative arrangements for giving evidence. 

39. The Victorian Government should introduce measures under the Criminal Procedure Act 2009 (Vic) to allow ‘protected victims’ to give their evidence in the form of a pre- recording. 

40. The Victorian Government should implement Recommendation 43 of the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process and Recommendation 85 of the Improving the Justice System Response to Sexual Offences reports to strengthen measures to protect victim survivors of stalking attending court. 

41. The Victorian Government should amend Part 8.2, Division 3 of the Criminal Procedure Act 2009 (Vic) so that the Division on cross-examination of protected witnesses applies to a criminal proceeding that relates (wholly or partly) to a charge for stalking. 

42. The Victorian Government should ensure that Victoria Legal Aid is resourced to provide legal representation to unrepresented accused in accordance with section 357(2) of the Criminal Procedure Act 2009 (Vic). 

43. The Victorian Government should develop a coordinated response to non-family violence stalking to deliver accessible and effective treatment and support programs to people who stalk. The coordinated response should involve: 

a. ongoing research on the effectiveness of and ways to improve responses to stalking behaviour 

b. increasing the availability of general treatment and support in the community and justice system 

c. support that is tailored to the person’s individual needs 

d. improving access to and availability of early intervention programs for people who stalk, especially in rural and regional Victoria e. improving access to and availability of prison-based rehabilitation and reintegration programs f. strengthening assessment and referral pathways from police, lawyers and courts. 

44. If there are strong indicators that compelling treatment is an effective response to non-family violence stalking in the personal safety intervention order system, the Victorian Government should consider introducing court-ordered therapeutic orders, as is the case in the Family Violence Protection Act 2008 (Vic). 

45. The Judicial College of Victoria should develop guidance for sentencing breaches of personal safety intervention orders, similar to the guidance that exists for sentencing breaches of family violence intervention orders and family violence safety notices under the Family Violence Protection Act 2008 (Vic).

Forensics

The Interim Report of the Commission of Inquiry into Forensic DNA Testing in Queensland (by the former President of the Court of Appeal, retired judge Mr Walter Sofronoff KC) states 

 1. Immediately before early 2018, Queensland Health Forensic and Scientific Services (“FSS”) would process samples submitted for Major Crime Casework that returned a quantitation value between 0.001 ng/μL and 0.0088 ng/μL by submitting them automatically to concentration using Microcon filters (referred to within FSS as "auto-microcon"), amplification, capillary electrophoresis and profiling. 

2. In early 2018, FSS began to process such samples in accordance with “option 2” referred to in paragraph 8 on page 9 of 'A review of the automatic concentration of DNA extracts using Microcon® Centrifugal Filter Devices: Options for QPS consideration' dated January 2018 and submitted under the names of Mr A3 and Ms B, both FSS officers. 

3. Option 2 provided as follows: Cease the ‘auto-microcon’ process for Priority 2 (Major Crime) casework and report the exhibit result of ‘DNA insufficient for further processing’ based on Quantification result. 

4. The result of the adoption of this process by agreement between FSS and the Queensland Police Service (“QPS”) was that samples for Priority 2 (Major Crime) Casework that returned a quantitation value in the range between 0.001 ng/μL and 0.0088 ng/μL: 

a. would not be processed further (unless expressly requested by QPS or unless a scientist within FSS did so) and, 

b. would be reported in the Forensic Register as containing “DNA insufficient for further processing” or words to similar effect (hereafter referred to as “the DIFP Statement”) and accompanied by the words: This item/sample was submitted for DNA analysis; however the amount of DNA detected at the quantitation stage indicated the sample was insufficient for further processing (due to the limitations of current analytical and interpretational techniques). No further processing was conducted on this item. Please contact Forensic DNA Analysis if further information is required.   

c. would be reported in Queensland Police Records and Information Management Exchange (“QPRIME”) as containing the DIFP Statement and accompanied by the words: This item/sample was submitted for DNA analysis. Low levels of DNA were detected in this sample and it was not submitted for further profiling. Please contact the DNA Management Section if this sample is requested to be assessed for further processing. Further processing could include concentration of the low levels of DNA obtained, pooling with other samples (where appropriate), resampling of the parent item (where appropriate), or a combination of processes. 

5. In instances in which a witness statement was required for criminal proceedings, samples with quantitation within the range 0.001 ng/μL and 0.0088 ng/μL would be reported as having “Insufficient DNA for analysis” or words to similar effect. 

6. In fact, the possibility of obtaining a profile from these samples cannot be excluded because, although it might be that the samples contained insufficient DNA to develop a DNA profile, it might also be that the samples contained: a. sufficient DNA to obtain a partial DNA profile, or, b. sufficient DNA to obtain a full DNA profile. 

7. It follows that the DIFP Statement as used in witness statements was untrue. 

8. When a quantitation result is below 0.001 ng/μL, FSS reports the result on the Forensic Register as “No DNA detected”. When a witness statement is prepared for criminal proceedings, the result is reported in the same way. 

9. In fact, such a quantitation result signifies that technical equipment did not have the capacity to determine either the presence or absence of DNA with reliability. 

10. Samples with quantitation results below 0.001 ng/μL are capable of generating useable profiles although the likelihood is low. 

11. As a consequence, the description “No DNA detected” as used in witness statements is misleading. 

12. The following are my reasons for reaching these conclusions.

The Commissioner's recommendations are 

a. Every Witness Statement issued by FSS since February 2018 in which a sample has been reported under the rubric “DNA insufficient for further processing” or any similar expression, and in which a sample has been reported as “No DNA detected” be identified by FSS without delay in a manner that will ensure ease of production of a list of such statements and, if required, the production of the statements themselves and the due provision of quants that were the basis for such statements. 

b. For every such statement, a further statement be prepared by FSS stating that:

i. In each case in which the DIFP Statement has been used, that the statement was not correct and that the sample contains a low level of measurable DNA which, if fully processed, might produce an interpretable profile. 

ii. In each case in which the statement “No DNA detected” has been used, that the statement was not correct and that the sample returned a quantitation result below the level of detection but that further work might result in a useable profile but that that is unlikely. 

c. That the Queensland Government take steps to ensure that public bodies and publicly funded bodies that require additional funds or other resources to investigate, consider and resolve these issues be furnished with the necessary funds and resources so that any miscarriages of justice are resolved as promptly as is practicable.

Regulatory Failure

An acute analysis of regulatory failure - ongoing inaction by the OAIC - is provided in 'Australia’s Forgotten Privacy Principle: Why Common ‘Enrichment’ of Customer Data for Profiling and Targeting is Unlawful' by Katharine Kemp. 

The author states 

Many companies are not satisfied with collecting only the personal information that customers provide during a transaction or sign-up, or even the additional personal information they collect about the customer’s activities on the company’s own website or app. Instead, there is a common practice of companies adding to the profiles they compile on each of their customers by collecting extra information about the customer from third parties, including other unrelated retailers, loyalty programs, data analysts and data brokers. The industry euphemism for this practice is ‘data enrichment’. Extra information collected by companies ranges from the customer’s age and income to health, family situation and purchases from other companies online and offline. 

The further personal information is not necessary for the transaction or provision of the service in question, and its collection is not visible to the consumer. Nonetheless, many companies seem to consider they are entitled to collect this further information in pursuit of the power to create more detailed consumer profiles, predict the consumer’s actions and intentions, precisely target advertising and influence consumer behaviour (collectively, ‘profiling and targeting’). 

This paper argues that much of this collection of personal information is already unlawful in Australia. Organisations are forgetting – or overlooking – a critical obligation about when personal information can be collected from third parties rather than from the individual themselves. 

Australian Privacy Principle 3.6(b) is the forgotten privacy principle. The essence of this rule is that personal information should be collected directly from the individual concerned (‘direct collection’), rather than from third parties or other sources. 

For organisations, the only exception to the general rule requiring direct collection is if it would be ‘unreasonable or impracticable’ for the organisation to collect the personal information only from the individual- eg, when an individual is being investigated for suspected fraud, or where legal documents must be delivered to an individual who has changed address. The exception to direct collection does not apply simply because an organisation seeks more personal information for profiling or targeting but does not wish to ask the individual for it directly for fear that the individual would object.

Policing, Health and Mumbo Jumbo

The NZ High Court in William aka Larsen v New Zealand Police Company [2022] NZHC 2374 has reiterated disquiet with sovereign citizen claims. 

Churchman J states 

[5] The statement of claim refers to events which occurred on 20 February 2022 and subsequently. The following events occurred that day: A logging truck was observed driving towards the Rimutaka Hill with no registration plates and was in poor condition. The truck was stopped by police. The driver was asked to turn the engine of his truck off so that the police could speak to him. He refused. The driver was asked to provide his details but also refused saying that he did not have to provide them. A police check confirmed the driver as Scott William Larsen. A check of police records showed that Scott William Larsen had a fines warrant and was a forbidden driver. Scott William Larsen was arrested. He refused to get out of the truck’s cab or unlock the door and indicated that he did not accept the jurisdiction of the police officers to arrest him. In order to effect the arrest, the driver was sprayed through the slightly open driver’s window which resulted in him getting out of the cab and being transported to the Upper Hutt Police Station. The truck was seized and impounded. Scott William Larsen was charged with a number of offences including: ➢ being the driver of a motor vehicle during a period that he had been forbidden to drive; ➢ operating a vehicle in a transport service without a licence; ➢ resisting police in the execution of their duty. 

[6] Because of the confused nature of the statement of claim, it is not possible to discern exactly what happened next but it seems that the plaintiff was convicted and fined, and his truck was sold to pay the fines. 

Analysis 

[7] The plaintiff contends that neither the police nor Justice system have any authority over him and categorises their actions in apprehending and prosecuting him as amounting to fraud, slavery, malfeasance of public office [sic] and deception. 

[8] The statement of claim is full of pseudo-legal mumbo jumbo that is characteristic of the “sovereign citizen” school of thought. 

[9] The Court of Appeal in Warahi v Chief Executive of the Department of Corrections described the sovereign citizen movement as:

...an ideology that first emerged in the United States in the 1970s. [The] core belief, for present purposes, is that [Sovereign Citizens are] not subject to the jurisdiction of the State (including legislation enacted by Parliament or decisions made by the Court). This belief is based (at least in part) on the dual persona-theory the proposition that individuals have two personas, one of the flesh and blood and the other a separate legal or “corporate” personality that is subject to the jurisdiction of the State. Followers of the Sovereign Citizen movement believe that it is possible to dissociate themselves from their legal or corporate persona, and hence free themselves from the jurisdiction of the State [they believe they have] successfully done this and, as a result, the State has no authority over [them].

[10] The Courts have consistently held that it is an abuse of process for a litigant to attempt to employ sovereign citizen concepts in seeking to avoid or defeat any State, regulatory, contract, family or other obligations recognised by law. 

[11] Consistently with the other cases where the sovereign citizen theory has been invoked to attempt to escape the jurisdiction of the Court, I hold that these proceedings are plainly an abuse of the process of the Court, and strike them out.

In Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 the Commission states 

[9] Mr Bakhash filed submissions on 25 August 2022. Mr Bakhash submits his appeal consists of two parts: Firstly, I absolutely hold steadfast to the belief that I do have a reasonable excuse for not following this Direction. My right to refuse an injection is based on my inalienable right as an independent sovereign citizen to refuse this mandated and coerced medical injection. This right is not extinguished by any chief health officer’s Direction or any such narrow rulings by any court. ... 

[14] The department submits that the appeal should not be heard because it has no reasonable prospects of success. The department notes the assertions by Mr Bakhash that the direction violates his personal rights and right to informed consent have been addressed extensively by the Commission, and it is exceedingly unlikely that the matters will be interpreted differently by the Commission in this case if the matter proceeds. 

[15] The department relies on the numerous cases where the Commission has found that the direction is lawful and reasonable, and submits that it was open to the department to form a reasonable belief that Mr Bakhash was liable to discipline for failing to follow a lawful and reasonable direction. 

[16] The department submits that to the extent that Mr Bakhash asserts his right to informed consent involves some degree of novelty, he is mistaken. 

[17] The department further notes Mr Bakhash's appeal notice advances the argument that the disciplinary action was not appropriate in the circumstances. The department notes that the commission has found disciplinary action up to and including termination of employment to be fair and reasonable in cases similar to that of Mr Bakhash. ... 

[20] The letter Mr Bakhash attached to his submissions traverses a number of arguments that have been unsuccessfully raised on numerous occasions in this Commission, including but not limited to: A number of statutory instruments that Mr Bakhash submits render the direction unlawful, including the Privacy Act 1998, the Human Rights Act 2019 (Qld), the Commonwealth Constitution, the Criminal Code Act 1995 (Cth), and the Biosecurity Act 2015 (Cth); Mr Bakhash cannot provide informed and valid consent to have the vaccine; Mr Bakhash does not require any pharmaceutical medication for his health; and Vaccines do not prevent individuals from contracting COVID-19 or spreading COVID-19. 

[21] In Elliott v State of Queensland (Queensland Health), I made the following observations in relation to such arguments that have previously been heard and determined before this Commission: 

[29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment. 

[30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera. 

[31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature. 

[32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard.