Meds

'Promoting the personal importation of therapeutic goods: recent legislative amendments to advertising regulations may impact consumer access and understanding' by Christopher Rudge and Narcyz Ghinea in (2023) 47(2) Australian Health Review 182-191 comments Objective The personal importation scheme is a legislative mechanism that allows health consumers to import unapproved medicines under certain conditions. This article analyses the legal and policy basis for the scheme and considers how reforms to advertising laws for therapeutic goods may restrict communications about it. The article represents the first published analysis of the personal importation scheme's interaction with the communications of health professionals and buyer's clubs. It considers how these communications may be affected by legal amendments, particularly where unapproved medicines may be accessed through the scheme. Methods An examination of Australian therapeutic goods law concerning the personal importation scheme was conducted, including both the historical law and recent regulatory reforms. Illustrative tables were prepared to identify scheme-related advertising that may contravene therapeutic goods law. Risk estimates were allocated to several new legal rules to indicate whether health professionals or buyer's clubs would contravene these laws when promoting the scheme to health consumers for unapproved medicines. Results Representations made directly to the public by health practitioners or on buyer's clubs websites about accessing unapproved therapeutic goods through the personal importation scheme are likely to contravene one or more advertising laws. Conclusions The Therapeutic Goods Administration has very strong powers to initiate compliance or enforcement action for advertising breaches in Australia for many promotional practices. Arguably, in the age of the internet and in the context of emerging expensive medicines, these powers should not be used to restrict health practitioners or buyer's clubs from sharing information about the lawful personal importation scheme to health consumers in need. Nevertheless, the study finds that health practitioners who promote or refer to the availability of unapproved medicines through the personal importation scheme outside of a consultation are likely to contravene the law and may be subject to disciplinary or enforcement acti

Kelsen

'Kelsen’s Contribution to Contemporary Philosophy of International Law' by David Dyzenhaus comments 

This paper revisits the Hart-Kelsen debate in philosophy of law through the lens of their views on the legal status of international law. Hart’s unsatisfactory account of that status dominates recent philosophical debate about international law largely because scholars accept Hart’s claim to have refuted Kelsen. But, as I argue, Hart distorted Kelsen in order to ‘refute’ him. With those distortions corrected, we can see that Hart’s own legal theory is not only parochial but incoherent on its own terms. More important, we can appreciate the merits of Kelsen’s theory in two major respects. First, Kelsen, unlike Hart, does not start by constructing a theory of the law of a national legal order, and, only then, ask whether international law is law in its light. Rather, he shows that an understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. Second, we can see that the fundamental divide in philosophy of law is neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication. Rather, the divide is between Kelsenian dynamic and Hartian static models of law, where these labels signify whether the model includes the dynamic process of legal change within the scope of legal theory or consigns it to some extra-legal space.

Rivers

In several publications I have suggested that a fundamental question in awarding 'personhood' - or a variety of personhood - to rivers, forests and other domains is what you do with that personhood. 

'Beyond legal personhood for the Whanganui River: collaboration and pluralism in implementing the Te Awa Tupua Act' by Miriama Cribb, Elizabeth Macpherson and Axel Borchgrevink in (2024) International Journal of Human Rights comments 

There is now a large body of scholarly literature on the legal and governance arrangements for the Whanganui River in Aotearoa New Zealand, given the rights of a legal person under Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Most of this literature focuses on the innovation of legal personhood and rights of nature rather than situating the Act in its local context or examining its implementation in practice. This article analyzes two cases of implementation – Te Pūwaha (the revitalisation of the Port of Whanganui); and Te Kōpuka nā Te Awa Tupua, the collaborative group charged with developing a strategy for the river. We shift attention away from legal personality to three other elements: The centrality of Māori kawa (value-based, Indigenous law); the establishment of a comprehensive set of new institutions and practices; and the devolution of authority to hapū (subtribes) and communities. These elements represent a paradigm shift towards a relational and reciprocal form of governance. While Te Awa Tupua Act does have some alignment with rights of nature, it should primarily be understood as recognising Indigenous rights and the authority of Indigenous law. 

The case of the Whanganui River, recognised by legislation as a ‘legal person’ under the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (the Act) as part of a reparative Tiriti o Waitangi (Treaty of Waitangi) settlement between local Māori iwi (tribes) and the Crown, has become emblematic of legal innovations on the rights of rivers. Most of the scholarly engagement with the Whanganui model comes from outside Whanganui and, indeed, outside Aotearoa New Zealand, and has been overwhelmingly focused on the innovation of legal personhood for the river.Footnote1 Very little research has been conducted from within the place where this innovative legal model emerged, and almost nothing has been written about how the Act is being implemented in practice. This article seeks to fill these gaps. It investigates two cases of emerging forms of river governance at the local level, which are being developed as ways of implementing the Act. The article is written by an interdisciplinary team of researchers, who include a ‘born and bred’ Whanganui iwi descendant (uri) and PhD researcher, a Pākēha (non-Māori New Zealander) legal scholar and former Indigenous rights lawyer, and a senior European anthropologist with long experience of empirical work with Indigenous and local peoples. The results of this collaboration enabled new insights about the potential for legal frameworks to centre river relationality and reciprocity in collaborative river governance. 

Our focus on how local governance is being transformed as a consequence of the Act allows a new perspective on what is innovative in this legislation. The legal personhood for the Whanganui River is ground-breaking, and for this reason has caught international attention. Yet, in examining implementation, other elements of the Act are seen to be crucial and equally innovative, even though they have tended to fall below the radar in international publications. Our fieldwork within the Whanganui catchment (and in the case of the first author, her entire life there) has enabled us to draw three, interrelated implementation lessons from the Whanganui River model. The first, is the need for scholarly framing to shift from the Western legal fiction of the ‘person’ towards the broader enabling jurisdiction for kawa (value-based, Indigenous law) in the Whanganui model. The second, is the potential of a new way of decision-making than has historically been the case under the Resource Management Act, shifting away from traditional Western notions of sustainability towards kawa-based notions of relationality and abundance. The third, is the significance of the legal governance architecture that supports place-based authority, devolves decision-making to hapū (subtribes), and brings the whole community in conversation with the river as part of deliberative local democracy. 

We find that the Act can be best understood as a recognition of relational legal pluralism in response to Treaty of Waitangi claims raised by Māori. Indigenous law – the kawa – explicitly forms the core of the Act, and what it crucially does, is to devolve power and authority to hapū and local communities. Even though the Act does recognise the river as a person and establishes rights for the river, this is a by-product of legislation designed to (partially) repair the Crown’s past wrongdoings against Māori. In spite of Te Awa Tupua having gained international attention as a way of legislating rights of nature, it is better understood as a recognition of the state’s obligations in terms of Indigenous rights and authority, especially jurisdiction for Indigenous Law.

Influencers

The European Commission and national consumer protection authorities of 22 Member States, Norway and Iceland earlier this month released the results of a sweep of social media posts from influencers. 

The sweep found that 97% of these influencers posted commercial content. Only one in five systematically indicated that their content was advertising. 

The objective of the sweep was to verify whether influencers disclose their advertising activities as required under EU consumer law. Posts of 576 influencers published on major social media platforms were checked. 

The sweep is summarised as 

•  97% published posts with commercial content, but only 20% systematically disclosed this as advertising; 
• 78% of the verified influencers were exercising a commercial activity; however only 36% were registered as traders at national level; 
• 30% did not provide any company details on their posts, such as e-mail address, company name, postal address or registration number; 
• 38% of them did not use the platform labels that serve to disclose commercial content, such as the “paid partnership” toggle on Instagram, on the contrary, these influencers opted for different wording, such as “collaboration” (16%), “partnership” (15%) or generic thanks to the partner brand (11%,); 
• 40% of the checked influencers made the disclosure visible during the entire commercial communication. 
• 34% of influencers' profiles made the disclosure immediately visible without needing additional steps, such as by clicking on “read more” or by scrolling down; 
• 40% of influencers endorsed their own products, services, or brands. 
• 60% of those did not consistently, or at all, disclose advertising; 
• 44% influencers had their own websites, from which a majority was able to sell directly.
• Several influencers were active on different social media platforms: 572 had posts on Instagram, 334 on TikTok, 224 on YouTube, 202 on Facebook, 82 on X (formerly Twitter), 52 on Snapchat, and 28 on Twitch. 
•  The main sectors of activity concerned are, in decreasing order, fashion, lifestyle, beauty, food, travel and fitness/sport. 
• 119 influencers were considered to be promoting unhealthy or hazardous activities, such as junk food, alcoholic beverages, medical or aesthetic treatments, gambling, or financial services such as crypto trading.

NotBot

In Moffatt v. Air Canada, 2024 BCCRT 149 Air Canada has unsuccessfully sought to duck liability with, among other things, a claim that its chatbot is a discrete legal person. 

The Tribunal states 

 1. This dispute is about a refund for a bereavement fare. 

2. In November 2022, following the death of their grandmother, Jake Moffatt booked a flight with Air Canada. While researching flights, Mr. Moffat used a chatbot on Air Canada’s website. The chatbot suggested Mr. Moffatt could apply for bereavement fares retroactively. Mr. Moffatt later learned from Air Canada employees that Air Canada did not permit retroactive applications. 

3. Mr. Moffatt says Air Canada must provide them with a partial refund of the ticket price, as they relied upon the chatbot’s advice. They claim $880 for what they say is the difference in price between the regular and alleged bereavement fares. 

4. Air Canada says Mr. Moffatt did not follow the proper procedure to request bereavement fares and cannot claim them retroactively. Air Canada says it cannot be held liable for the information provided by the chatbot. Finally, it relies on certain contractual terms from its Domestic Tariff. Air Canada asks me to dismiss Mr. Moffatt’s claim. 

5. Mr. Moffat is self-represented. Air Canada is represented by an employee. 

6. For the reasons that follow, I mostly allow Mr. Moffatt’s claim.... 

7. These are the Civil Resolution Tribunal’s (CRT) formal written reasons. The CRT has jurisdiction over small claims brought under Civil Resolution Tribunal Act (CRTA) section 118. CRTA section 2 states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness. 

8. CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice. 

9. CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in a court of law. 

10. Where permitted by CRTA section 118, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate. 

ISSUE 

11. Did Air Canada negligently misrepresent the procedure for claiming bereavement fares, and if so, what is the remedy? 

EVIDENCE AND ANALYSIS 

12. In a civil proceeding like this one, Mr. Moffatt, as applicant, must prove their claims on a balance of probabilities. This means “more likely than not”. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision. 

13. On November 11, 2022, Mr. Moffat’s grandmother passed away in Ontario. That same day, Mr. Moffat visited Air Canada’s website to find and book a flight from Vancouver to Toronto using Air Canada’s bereavement rates. It is undisputed that Air Canada provides certain accommodations, such as reduced fares, for passengers traveling due to the death of an immediate family member. 

14. Mr. Moffat says while using Air Canada’s website, they interacted with a support chatbot. While Air Canada did not provide any information about the nature of its chatbot, generally speaking, a chatbot is an automated system that provides information to a person using a website in response to that person’s prompts and input. The parties implicitly agree that Mr. Moffatt was not chatting with an Air Canada employee. 

15. Mr. Moffat says they asked the Air Canada chatbot about bereavement fares. They include a screenshot of the chatbot’s response, which says, in part, as follows: Air Canada offers reduced bereavement fares if you need to travel because of an imminent death or a death in your immediate family. … If you need to travel immediately or have already travelled and would like to submit your ticket for a reduced bereavement rate, kindly do so within 90 days of the date your ticket was issued by completing our Ticket Refund Application form. (emphasis in original) 

16. It is undisputed the words “bereavement fares” were a highlighted and underlined hyperlink to a separate Air Canada webpage titled “Bereavement travel” with additional information about Air Canada’s bereavement policy. Air Canada provided a screenshot of part of what I infer is the hyperlinked Air Canada webpage. 17. The webpage says, in part, the bereavement policy does not apply to requests for bereavement consideration after travel has been completed. I address the inconsistency between Air Canada’s chatbot and webpage later in this decision. 

18. Relying on the information provided by the chatbot, on November 11, Mr. Moffatt booked a one-way flight from Vancouver to Toronto, departing on November 12, for $794.98. On November 16, relying on the same information, they booked a one-way flight from Toronto to Vancouver, departing on November 18, for $845.38. 

19. Mr. Moffat says on November 11, they spoke to an Air Canada representative by telephone about bereavement rates to determine what the discount may be. Mr. Moffatt says they were told the fare for each flight would be approximately $380. There is no evidence the Air Canada representative told Mr. Moffatt about whether or not they could retroactively apply for bereavement rates. 

20. Mr. Moffatt submitted their first application for the bereavement fare on November 17, 2022, well within the 90 days requested by the chatbot. Emails in evidence show Mr. Moffatt corresponded with Air Canada throughout December 2022 and February 2023 in an attempt to receive a partial refund of their fares. 

21. On February 5, 2023, Mr. Moffatt emailed Air Canada. They included the screenshot from the chatbot that set out the 90-day window to request a reduced rate and confirmed they had filled out the refund form and provided a death certificate. 

22. On February 8, an Air Canada representative responded and admitted the chatbot had provided “misleading words.” The representative pointed out the chatbot’s link to the bereavement travel webpage and said Air Canada had noted the issue so it could update the chatbot. 

23. The parties exchanged further emails after that but were unable to resolve matters. Negligent Misrepresentation 

24. While Mr. Moffatt does not use the words specifically, by saying they relied on Air Canada’s chatbot, I find they are alleging negligent misrepresentation. Negligent misrepresentation can arise when a seller does not exercise reasonable care to ensure its representations are accurate and not misleading. 

25. To prove the tort of negligent misrepresentation, Mr. Moffatt must show that Air Canada owed them a duty of care, its representation was untrue, inaccurate, or misleading, Air Canada made the representation negligently, Mr. Moffatt reasonably relied on it, and Mr. Moffatt’s reliance resulted in damages. 

26. Here, given their commercial relationship as a service provider and consumer, I find Air Canada owed Mr. Moffatt a duty of care. Generally, the applicable standard of care requires a company to take reasonable care to ensure their representations are accurate and not misleading. 

27. Air Canada argues it cannot be held liable for information provided by one of its agents, servants, or representatives – including a chatbot. It does not explain why it believes that is the case. In effect, Air Canada suggests the chatbot is a separate legal entity that is responsible for its own actions. This is a remarkable submission. While a chatbot has an interactive component, it is still just a part of Air Canada’s website. It should be obvious to Air Canada that it is responsible for all the information on its website. It makes no difference whether the information comes from a static page or a chatbot. 

28. I find Air Canada did not take reasonable care to ensure its chatbot was accurate. While Air Canada argues Mr. Moffatt could find the correct information on another part of its website, it does not explain why the webpage titled “Bereavement travel” was inherently more trustworthy than its chatbot. It also does not explain why customers should have to double-check information found in one part of its website on another part of its website. 

29. Mr. Moffatt says, and I accept, that they relied upon the chatbot to provide accurate information. I find that was reasonable in the circumstances. There is no reason why Mr. Moffatt should know that one section of Air Canada’s webpage is accurate, and another is not. 

30. Mr. Moffatt says, and I accept, that they would not have flown last-minute if they knew they would have to pay the full fare. I find this is consistent with Mr. Moffatt’s actions, which included investigating the options for bereavement fares and diligently following up for a partial refund in line with the chatbot’s information. 

31. To the extent Air Canada argues it is not liable due to certain terms or conditions of its tariff, I note it did not provide a copy of the relevant portion of the tariff. It only included submissions about what the tariff allegedly says. Air Canada is a sophisticated litigant that should know it is not enough in a legal process to assert that a contract says something without actually providing the contract. The CRT also tells all parties are told to provide all relevant evidence. I find that if Air Canada wanted to a raise a contractual defense, it needed to provide the relevant portions of the contract. It did not, so it has not proven a contractual defence. 

32. So, I find Mr. Moffatt has made out their claim of negligent misrepresentation and is entitled to damages.

Plates

In DPP v James (Ruling) [2023] VCC 2452 - another pseudolaw judgment -  James charged with assaulting an emergency worker on duty and resisting emergency workers on duty.

James unsuccessfully argues that the Road Safety Act 1986 (Vic) is invalid, asserting that 

• the Road Safety Act was assented to on 23 December 1986 by a fictional character, being the ‘Queen of Australia’; 
•  the Road Safety Act has no application to a ‘free man or woman’; 
•  the ‘statute of monopolies’ precludes VicRoads from acting as a monopoly over matters such as registration and licencing; 
•  without a contract indicating consent, there can be no burden placed on free men and women; and that the Road Safety Act applies to ‘persons’ and 
•  the accused is not a ‘person’ but rather, is created in the image of God, and is entitled to the freedoms given by God. 

The judgment states

In short, the accused argues that he is only subject to ‘common law’ and that State legislation, such as the Road Safety Act and the regulations made under that Act, have no application to him and are invalid. This contention has no foundation in law and must be rejected. 

Arguments such as those advanced by the accused have been comprehensively rejected by the Supreme Court of Victoria. Relevantly, Justice J Dixon rejected similar arguments regarding the validity of the Road Safety Act 1986 in the case of Stefan v McLachlan [2023] VSC 501. 

As to the argument that the accused was able to distinguish himself from a ‘legal person’ who was charged with the offences, Dixon J characterised the argument as ‘misconceived’, stating that the ‘natural and ordinary meaning of ‘person’ where it appears in the Act is ‘a reference to an individual human being’, further stating:

It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law, whether its source be the Constitution, statute or judge made law.

As to the argument that the accused is a free man, created by God and not by the State, and that the Commonwealth Constitution does not grant legislative power to Parliament to affect the rights of a free man, a similar argument was also considered and rejected by Dixon J in Stefan v McLachlan, stating ‘such irrelevant matters cannot impugn’ the validity of the Road Safety Act or the jurisdiction of a Court to deal with matters under that Act. 

The Supreme Court also rejected the contention that there is any requirement for a contract or consent to bind a free person, with Dixon J stating: ‘Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual...the ‘consent of Victorian’s to statute law...follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power’. 

Prior to advancing these arguments, I provided the accused with a copy of the decision in Stefan v McLachlan and the other authorities to which I refer. 

Finally, as to the question of whether the Road Safety Act is invalid by reason of it being assented to in the name of the sovereign, this argument has also been considered and rejected by the Supreme Court in Smart v City of Greater Geelong and in Sill v City of Wodonga, both of which were also provided to the accused. These cases stand for the proposition that the Constitution Act 1975 was properly assented to, and hence, s 16 of that Act gives the Parliament of Victoria ‘the power to make laws in and for Victoria in all cases whatsoever’. The Road Safety Act is such a law. The Road Safety Act was assented to on 23 December 1986 under the hand of the then Governor of Victoria, J. Davis McCaughey as recorded in Government Gazette 108. It is clear that that the Act was properly assented to. There is no foundation to the accused’s argument. 

As stated by Byrne J in Smart v City of Wodonga, s 143(1) of the Evidence Act 2008 was enacted to prevent arguments like these being made. It is difficult to understand the basis of the accused’s argument that the ‘statute of monopolies’ invalidates the legislation. There is no basis to argue the provisions of the Road Safety Act, are invalid in law or are otherwise contrary to overriding “competition laws”.

In Stefan v McLachlan [2023] VSC 501 Dixon J states 'On the hearing of the appeal, the appellant identified himself as Alex Stefan and represented himself. His ’identity’ was an issue on the appeal'.

Stefan 

 contested that he was amenable to the jurisdiction of the Magistrates’ Court to hear and determine such charges and that, properly construed, the relevant statutory provisions did not apply to him. I will shortly explain more fully the arguments that he developed that warrant consideration on this appeal. 

His amended notice of appeal raised 71 questions, described as questions of law. The appellant categorised those questions in the following way:

(a) Questions regarding the nature of the court; 

(b) Questions regarding the allegiance, separation of powers, jurisdiction and compliance of the court with Chapter 3 of the Constitution; 

(c) Validity of orders made by the Magistrates’ Court; 

(d) Questions regarding the lawful status of the Victorian Department of Public Prosecutions and the prosecutor acting on behalf of the informant; 

(e) Questions regarding the appellant’s status as a living man and personal representative of his legal person and limited liability for the debts of his legal person; 

(f) Validity of the Road Safety Act 1986 (Vic); 

(g) Lack of evidence of the informant’s claim that the Road Safety Act is a valid Act and that it applied to the appellant; 

(h) The power of private companies to dictate to a living man enforcement without agreement or contract; 

(i) Appellant’s honest claim of right, private administrative process and informant’s default; 

(j) No injured party/corpus delecti; 

(k) Misapplication of legal terms; and 

(l) Application of legal terms.

The number of questions was a product of the appellant’s want of legal training. In substance, he did not contest the facts, he contested that court’s jurisdiction and its interpretation of the statute. ... 

In oral submissions, the appellant distilled his arguments to some primary points, while inviting the court to rely on the full expression of his contentions in his written material, which I have done. 

First, the appellant contended that he is ‘a living man in private jurisdiction’ as opposed to a ‘legal person in the public jurisdiction’. He submitted that, based on his ‘research’, private and public jurisdictions do not mix; private being the jurisdiction of living men and women and public jurisdiction being the jurisdiction of legal persons, whether they be a natural person, a company, a trust or any form of State-created entity. Living men and women are not subject to statutes: they are subject to the common law and to the rules of equity but, not having been created by the State, are not subject to statute law. Accordingly, the Magistrate, exercising a jurisdiction conferred by statute, had no authority to hear and determine the charges brought against a living man who is not a legal person. 

Secondly, the Commonwealth Constitution does not permit the State to license travel and permits freedom of movement. While it may license commerce, the appellant was not engaged in commerce and was simply travelling in a private capacity. It was accordingly beyond the power of the police, on behalf of the State, to require the appellant to have or produce a licence. I pause to note that the appellant produced a licence when asked to do so and that licensing power is not an issue on this appeal. I need not say any more about why this submission is misconceived. 

The appellant’s third point is that the Magistrate misinterpreted a number of key terms defined in the Road Safety Act. He contended that the magistrate erred in law in concluding that: (a) A Range Rover Discovery is a vehicle; (b) A car is a vehicle; (c) The appellant was the driver of the car. 

He submitted that the Magistrate misunderstood the definition of the term ‘vehicle’. The appellant submitted that there is a distinction between the colloquial use of the term ‘vehicle’ and the legal definition in the Act. The Magistrate erred in concluding that the Range Rover that he was driving was a vehicle as defined by the Act because the Act makes quite clear what is, and is not, a vehicle. A private car being used for a private purpose does not meet the definition of a vehicle as provided for in the Act. I note that the definitions are in these terms: vehicle means a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn, and includes ...but does not include ...; motor vehicle means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include [exclusions not relevant for present purposes] 

The police alleged that the appellant was the ‘driver’ when the Act defines ‘driver’ in these terms: Driver of a vehicle includes – (a) a two-up driver of the vehicle who is present in or near the vehicle; and (b) a person who is driving the vehicle as a driver under instruction or under an appropriate learner permit. The appellant contended that as neither of the sub-paragraphs applied to him, he was not defined as a ‘driver’ by the Act, there being no other definition of ‘driver’ within the Act that might capture his circumstances. 

The appellant’s next point was, not being engaged in commerce but travelling for a private purpose, he had the right to travel down a road by whichever means he found fit so long as he did not cause any damage to other persons or property. There was, he submitted, no corpus delecti. Not having caused damage to any persons or property, no basis to issue a fine ever arose. 

The appellant developed this argument from the informant’s admission in evidence that he was travelling in a car. In other words, he submitted that the informant did not suggest that the appellant was travelling in a vehicle or a motor vehicle. This, he submitted, was critical as the definitions in the Act are exhaustive and the term ‘vehicle’ is not defined to include a car. The appellant submitted that this consequence followed by application of the maxim expressio unius est exclusion alterius. 

The appellant’s last oral point referred to grounds claiming that he was denied procedural fairness. Largely, the appellant complained that he was not permitted to question the police witnesses as he saw fit and was ‘cut off’ numerous times and that he was not permitted to fully develop his submissions. On analysis, it is plain that the magistrate did not cut the appellant off from developing his arguments, but did cut him off when he asked questions that could not generate a response that would be relevant to an issue and hence constitute admissible evidence. The magistrate did so quite correctly, and in particular disallowed questions in cross-examination of the informant about whether the appellant is a creature of statute, and about how legislation can apply to a living man. In the exchange, the magistrate told the appellant he could raise such matters in submissions, but they were not proper questions for the witness.... 

Turning first to the grounds relating to jurisdiction, the appellant’s attempt to distinguish himself from the ‘legal person’ who was charged with the offences was misconceived. There are 2461 instances of the use of the word ‘person’ in the Act, while the expression ‘legal person’ is not used. The natural and ordinary meaning of ‘person’ is a reference to an individual human being. The law carries the same meaning when using the expression ‘natural person’. There is a distinction, evident in the use of the expressions ‘natural’ and ‘legal’ persons, between artificial constructs of legal personality, where rights and duties are ascribed to an entity such as an incorporated company, that are referred to as ‘legal persons’ and natural persons, meaning individuals. All forms of person, natural and artificial, are recognised by the law as legal persons. In simple terms, all are subject to the rule of law. 

The appellant contended that he was a private man travelling in a private car for a private purpose on a common way without disturbing the peace nor causing any damage to people or property. As such he was not a person of direct concern to society and ‘therefore remains private’, meaning not amenable to the powers of the police or the jurisdiction of the magistrate. Apparently, in this context, the legal person who is so amenable is the person identified by the driver’s licence and not the living private man that the informant conceded he dealt with. That living private man, so the argument goes, is a conceptually distinct persona from the legal person. 

The law does not recognise an alternate, or paper, identity of the kind described by the appellant as represented by the name and persona identifiable from his driver’s licence as different from the identity of an individual human being. The identifying characteristics of a human being, such as name, are an integral part of the individual human being. The law recognises a living person as having status in law and any person is, in this sense, a legal person. Conceptually, there may be differences between the legal status of a person and that of an entity that is granted a like legal status, but what ever they might be they have no application on this appeal. In asserting that he is a ‘living man’, the appellant does no more than identify that he is a person, an individual. Every person, every individual, and every entity accorded status as a legal person is subject to the rule of law. There are no exceptions in Australian society. 

It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law whether its source be the Constitution, statute, or judge made law. No distinction can be made by using an analogue, such as ‘living man’ for ‘person’. There was no legal significance in the informant’s agreement with the appellant’s proposition in cross-examination that he was a ‘living man’. That conclusion was, and remained, blindingly obvious. 

A like argument was also based on the notion that the living man is created by God and not by the State and the Australian Constitution does not grant legislative power to the Parliament of Australia to affect the rights of the living man. No support can be found for such notions by reference to style guides, as the appellant sought to do, to draw inferences from obscure facts. In this case, the appellant noted that his name was printed on his driver’s licence wholly in capital letters. Such irrelevant matters cannot impugn the jurisdiction of a magistrate under the Road Safety Act. 

The appellant also advanced a like proposition that seems to have developed some momentum as a ‘sovereign citizen defence’, based in some way on notions of freedom to contract with others, as developed in a commercial context. The defendant contends that a living man is only answerable to those articles of law and legal proceedings to which he or she has consented. The contractual notion that the appellant alluded to has no role in public law in the manner suggested. Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual. There is no contract and nor does the authority of the Parliament to pass such laws come from a sovereign, notwithstanding that the legislative power of the State is vested in the King and the Parliament of Victoria. The ‘consent’ of Victorians to statute law, in the sense in which the appellant used the expression, follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power. 

The appellant also expressed this notion of his personal exemption from the application of the Road Safety Act as he drove his car on public streets by asserting that he is a subject of the King of the United Kingdom and not a citizen of the King of Australia. 

Like arguments, which perhaps find some development in obscure corners of the internet, were put to, and rejected by, Solomon J in Yap v Matic. ] I agree with his Honour’s statement that: Insofar as it asserts a distinction between the fictional 'PERSON' named as the defendant in these proceedings and Mr Matic himself, it is a distinction that is neither recognised by the law nor suggested by rational observation. Mr Matic is quite entitled to his belief in that distinction, but it is not one that can impact upon the court's jurisdiction . Mr Matic, as a person or as a 'living breathing man', capitalised or in lower case, is subject to the court's jurisdiction and required to comply with its orders.[

In this court, like arguments were rejected by Ginnane J in Monteith v Fitzgerald. In that case, as here, there was no challenge to the sufficiency of evidence to prove the charges, the challenge was to the jurisdiction of the magistrate. It was, in substance, put, as in this case, that the magistrate erred in determining that they had jurisdiction to hear and determine the charges. Busy judicial officers in the lower courts should not be troubled by such nonsense as is developed around these fatuous notions of ‘living man’ and ‘sovereign citizen’. ... 

There were many other arguments raised that I need not deal with. For example, demonstrating a comprehensive misunderstanding of tax law, the appellant submitted that because Victoria Police had an ABN, it was a private corporation that would require a written contract with him to enforce any remedies. The appellant also argued that unidentified principles of common law and equity apply to the regulatory scheme constituted by the Act. The appellant told the learned magistrate that he had filed a notice of conditional appearance, but developed no submission about that.

Tradeable Birth Certificates?

In Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250 Kunc J analyses Llewellyn's pseudolaw claim that birth certificates are tradeable securities. 

Llewellyn among other matters claimed to be a '"bondholder" and expects full repayment of the face value of the securities".' Unsurprisingly the Court disagreed 

 Ms Dunlop's helpful submissions set out a number of reasons why, with great respect to the Plaintiff, the summons and the relief sought in it are completely misconceived as a matter of the laws applicable in New South Wales and, for that matter, the Commonwealth of Australia generally (Mr Llewellyn’s submissions appeared at one point to suggest a relevant distinction between state law and Commonwealth law). It is sufficient for me to deal with only two matters put by Ms Dunlop that are entirely dispositive of the Plaintiff’s claim. 

The first is the Plaintiff’s proposition that either in and of itself, or by reason of the process of registration and certification or authentication, Mr Llewellyn's birth certificate is a form of security. The Court accepts the State’s submission that the birth certificate is plainly no such thing. Apart from anything else, it contains no words of charge, mortgage, guarantee or similar that one would expect to see in a document that met the orthodox legal definition of a "security". It is a birth certificate, undoubtedly an important document, but on no view is it a security creating rights as such under any law of this country. 

The second fundamental difficulty with the Plaintiff’s case relied upon by the State appears from what I have set out in [16] above, which displays a basic misunderstanding of the expression "full faith and credit" where those words appear in s 118 of the Constitution (Cth) and in other legislation relied upon by the Plaintiff. 

The Plaintiff, fastening upon an online definition from "Investopedia", submits that "credit" in the expression “full faith and credit” is something to do with guaranteeing or evidencing a debt. There can be no doubt that is not the meaning of "credit" in the expression "full faith and credit". "Credit" in that phrase refers to the concept of acceptance or belief in the validity of something. 

The two reasons which I have identified are sufficient to demonstrate for the purposes of the State’s notice of motion that the summons discloses no reasonable cause of action and ought to be summarily dismissed accordingly. There is, in fact or law, no “Trust owned Security” about which any of the defendants can provide the information sought by the summons as explicated in the “petition”. 

However, before leaving the substantive issues raised during the course of the hearing, I should also record that Mr Llewellyn "moved to strike" the State's submissions. He did so on the basis that those submissions were "non fact, hearsay, rhetoric, unwarranted, conjecture" and other epithets to like effect. 

As I sought to explain to Mr Llewellyn during the course of argument, submissions are not evidence and are not required to be sworn. The State’s motion was supported by an affidavit sworn by a solicitor with the conduct of the matter. The State’s submissions are something quite different from the affidavit in support. They are exactly that – submissions – and not evidence. I therefore rejected Mr Llewellyn's application "to strike" the State’s submissions. ... 

I invited Mr Llewellyn to put any submissions as to why he, being the named “petitioner, Aidan Rees Llewellyn as trustee for the House of Llewellyn”, should not be ordered to pay the State’s costs of the summons including the present motion. He responded that he should not be ordered to pay costs as he did not accept the validity of my judgment because of the various facts upon which the Plaintiff relied. He submitted those facts had not been controverted by the State and that my reasons were inadequate. 

This is a case where the usual principle should apply as to costs, namely that costs follow the event. Mr Llewellyn’s submissions do not provide a proper basis to depart from that position in the exercise of the Court’s discretion. The event is the dismissal of the summons in accordance with the State’s notice of motion. The Court will order that the Plaintiff pay the State’s costs of the summons, including of the State’s notice of motion, and make directions for the resolution of the application for costs on a gross sum basis.