Assistance

In Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106 the Tribunal has considered funding of a subscription to ChatGPT as part of support under the National Disability Insurance Scheme Act 2013 (Cth), aka the NDIS. 

The Decision states 

 The issue before the Tribunal is whether the certain supports are reasonable and necessary and should be included in the Applicant’s statement of participant supports (SPS) under sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The Applicant is a 57-year-old man who lives with his spouse in Cairns. He is passionate about engaging in outdoor activities such as kite-flying, wildlife photography and bushwalking. He is also a keen volunteer with the State Emergency Services (‘SES’). The Applicant lives with a complex combination of significant physical, psychosocial and medical impairments. 

 As part of the Application for support Johnstone sought 

 a subscription to ‘ChatGPT’, which is the (well known) Artificial Intelligence application developed by Open AI. Mr Widmer, in his report of 23 November 2023, recommends the subscription version, which currently costs around $30 per month. Mr Widmer identified a number of benefits for the Applicant, including:

• Summarising and simplifying complex information; 

• Providing a less overwhelming interface compared to navigating websites and paperwork; 

• Text-to-speech recognition; 

• Offering a consistent and reassuring mode of communication; Facilitating reminders and storing important information; 

• Breaking down larger tasks into more manageable action; 

• Providing on‑demand assistance and information; Providing guidance in emergency situations; and 

• Helping build a support network.[143] 

While there is a free version, the Applicant says that he has trialled this version and it was not sufficient for his needs. The Applicant say that the advantages of the subscription version include:

• Enhanced buffer capacity allowing for more extensive and complex requests; 

• More consistent and reliable responses; 

• Improved leaning and adaption to the Applicant’s communication style; 

• Capacity to access and process external documents; and 

• Support for other Artificial Intelligence tools or ‘plug-ins’. 

The Agency submits that a subscription to ChatGPT is not reasonable and necessary as it is likely to pose a risk of harm to the Applicant and does not represent value for money, relative to the free version.[144] The risk identified by the Agency is that the use of ChatGPT may increase the possibility that the Applicant could be exploited because ChatGPT is still being developed and may not always provide accurate information. I am not satisfied that the risks identified by the Agency mean that the use of ChatGPT is likely to cause harm to the participant for the purpose of Rule 5.1(a) of the Support Rules. I accept that the Applicant is aware of these risks and would be able to respond appropriately. 

In her oral evidence, Mrs Johnstone explained how ChatGPT reduced the burden on her in helping the Applicant to understand documents and write and proof-read responses. Mrs Johnstone added that the paid version of ChatGPT assisted by remembering the history of previous requests. 

The Applicant also referred to the Tribunal’s decision in Gelzinnis,[145] which I have considered. In Gelzinnis the Applicant sought better internet access to implement an assistive technology plan, which was in turn intended to reduce reliance on support workers. The facts in Gelzinnis were quite specific to the Applicant and included poverty, limited internet availability in her accommodation and inability to access free public networks due to concerns with her disassociate episodes. I do not consider that the reasoning in Gelzinnis applies to Mr Johnstone’s situation. 

I agree with the Agency’s contention that the paid version of ChatGPT does not represent value-for-money compared with the free version. I cannot see anything specifically in Mr Widmer’s report that deals with the additional advantages of the paid version. The bulk of the features which would reduce carer burden on Mrs Johnstone appear to be available in the free version. The Applicant’s lived experience with the free version not being suitable is of some weight, but ultimately provides little else to support a finding that the paid version is value-for-money. I am not satisfied that the subscription to ChatGPT is a reasonable and necessary support.

the latest carnival of absurdity

More pseudolaw incidents in Western Australia, Victoria and Queensland

Cousins v WA Police [2025] WASC 39 notes

 On 18 May 2023 the appellant was convicted of three offences, namely speeding, failing to provide personal details, and obstructing a police officer. The convictions followed a hearing at which the magistrate had decided to hear and determine the charges in the appellant's absence under s 55(4) of the Criminal Procedure Act 2004 (WA). A charge of failing to comply with a direction to stop was dismissed at the request of the prosecutor. The conviction for the obstruction offence was set aside following an application made by the appellant under s 71 of the Criminal Procedure Act. 

The appellant represented herself before the magistrate and conducted her own appeal. The appeal notice contained 74 grounds. Many of the grounds did not raise valid legal arguments. Rather they invoked pseudo‑law concepts. That said, two appeal points could be distilled from the grounds. The first was that it was not open to the magistrate to convict the appellant in her absence and the second was that the prosecution notice was invalid. At the hearing of the application, I granted leave to appeal in relation to the first ground and refused leave in relation to the second. I allowed the appeal and made consequential orders and said reasons would be published later. These are those reasons.... 

The respondent applied for leave to rely on additional evidence on appeal. That evidence included an affidavit affirmed by the Senior Security Coordinator of the Department of Justice attaching two incident reports recorded in relation to the hearing in the Magistrates Court on 18 May 2023. The evidence provided an account of the events that took place at and following the hearing that was relevant to the magistrate's decision to proceed to hear the charges under s 55(4) of the Criminal Procedure Act. Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), I granted the respondent leave to rely upon the additional evidence. 

The appellant also applied for leave to rely on additional evidence on appeal and sought orders as follows:

(2) An Order that the Application in an appeal Dated : 6 September 2024 by the Respondent the Court strike out the Application on the grounds of it is an abuse of process, frivolous, vexatious, scandalous and improper and a witch hunt and has no merit at English Common Law under Chapter III Section: 71 to 80 Constitution Act 1900 UK and the Magna Carta 1215 and the Bill of Rights 1688 and all Imperial Laws and no evidence to the contrary can be fm1h coming by the Respondent, estoppel by acquiescence 

(3) An Order that CITATION: TEY -v- PLOTZ [2010] WASC 163 be enforced that the WA POLICE are not known at Law under the Supreme Court Jurisdiction as this Miscarriage of Justice has been Perverted by the State Solicitor and now committing 'Torture' on the Appellant by the Application in an Appeal of the Respondent. 

(4) An Order by the Supreme Court that Criminal Charges be brought against the State Solicitor Office for 'Torture' under the Crimes (Tortures Act 1988 (Cth) Section : 5. 6. 7. A Public Official or person acting in an official capacity, commits the offence of Torture if in Australia he/she intentionally inflicts suffering on another in the performance or purported performance of his official duties at the instigation or with the consent or acquiescence of a public official or of a person acting in an official capacity immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission 

In the light of the conclusion I reached as to the strength of the appellant's ground concerning the magistrate's decision to proceed to hear the application under s 55(4) of the Criminal Procedure Act, it was unnecessary to deal with the appellant's application to adduce further evidence and for the other orders sought by her. ... 

Shortly after, the magistrate addressed the prosecutor and said, 'I'm going to have to set another trial date'. This remark prompted the following exchange:

[APPELLANT]: If you cannot hold this hearing here today - - - 

HIS HONOUR: Ms Cousins - - - 

[APPELLANT]: - - then this needs to be fully - - - 

HIS HONOUR: - - - I'm going to ask you to stop speaking and do not interrupt me. 

[APPELLANT]: Why are you shouting over me? This is my courtroom today. You've invited me here. Now you listen to what I have to say. 

HIS HONOUR: Okay. So, Ms Cousins, I'm going to have an adjournment. I'm going to walk out of this court in five minutes. 

[APPELLANT]: No. No, you cannot adjourn this. 

HIS HONOUR: I'm going to have an adjournment, Ms Cousins. 

[APPELLANT]: You cannot keep on dragging this on. 

HIS HONOUR: Yes. Can I speak? Am I - - - 

[APPELLANT]: You are speaking, but don't babble. 

HIS HONOUR: Am I allowed to - - - 

[APPELLANT]: Stick to the law. Stick to the facts and stick to the law. 

HIS HONOUR: Will you do me the courtesy of allowing me to speak, or not? Am I allowed to speak? 

[APPELLANT]: Yes, speak, but don't babble. 

HIS HONOUR: Sit down, please. Sit down, please. 

[APPELLANT]: I don't need to sit down. 

HIS HONOUR: Yes, you do, because I tell you you have to. 

[APPELLANT]: No, I don't. 

HIS HONOUR: Okay sit down 

[APPELLANT]: Where do you tell me I have to sit down? 

HIS HONOUR: Everyone out please. I'm having an adjournment and I'm coming back in. Clear the court. 

[APPELLANT]: You adjourned it last week because you could not - - - 

HIS HONOUR: We're adjourned. Thankyou

The court room was cleared. When the hearing resumed (and I infer from the transcript and the incident reports forming part of the respondent's additional evidence that this was only a matter of minutes later) the appellant was not present in the court room and when her name was called outside the court room she did not respond. I infer that the appellant was aware that she was required to re-enter the courtroom from ground 21 of the appellant's grounds of appeal which records 'the Court Clerk calling out the name of "Carol-Maria Cousins" after we were all removed from the Court Building'. 

Immediately after the adjournment and in the absence of the appellant the magistrate made the following observations:[

HIS HONOUR: ... The matters for Ms Cousins were called earlier. Ms Cousins herself was, in my view deliberately disruptive in her interactions with the court. When the matter was called earlier she had a large number of people who were, broadly speaking, supporters who were in the gallery of the court. They became disruptive and because of the combination of those factors, I adjourned the court. 

I've made a decision on security grounds and to ensure that the court can function as it ought to, that when the matter was recalled, that only the accused, Ms Cousins, would be entitled to enter and appear in the court, that is that the court would, otherwise, be closed. So that directive, I assume, has been communicated to, perhaps, Ms Cousins, perhaps, to others, but I'm now in a situation where Ms Cousins has, apparently, left the court and has not appeared when her names were called, or when her name was called, for the matter to be resumed. So that's for the transcript. That's what has occurred this morning.

In Song v M.T.V. Building & Construction Pty Ltd [2025] VSC 3, an appeal from the Victorian Civil and Administrative Tribunal Act including attempted late filing of affidavit attaching extensive pseudo‑legal material and a challenge to jurisdiction of the Supreme Court of Victoria, theCourt states ' Some of the grounds of review were difficult to decipher. I have done my best to make sense of them  ...'. 

 42 During his oral submissions in respect of the second application, Mr T. Mitevski also made submissions seeking to challenge the jurisdiction of the Court on the basis that the Supreme Court of Victoria is unable to hear matters where a corporation is a party. This challenge was unsuccessful.  ... 

57 At 10:25am on 25 November 2024 (the day before the trial), Mr T. Mitevski filed a notice of appearance for MTV. At 2:20am on 26 November 2024 (the morning of the trial), Mr Mitevski attempted to file a 13‑page affidavit attaching 272 pages of exhibits. A copy of the unsealed affidavit was sent to my chambers’ email inbox at this time. 

58 The content of the affidavit and exhibits was wholly unhelpful. The substance of the material was, as is unfortunately too often the case in recent times,* replete with pseudo‑legalise catch phrases, nonsensical arguments, conspiratorial allegations, and Bible quotes and exhortations. The affidavit sought to invoke a ‘Doctrine of Impossibility’ to locate a public defender or solicitor who would ‘challenge their undisclosed oath’ to ‘Guilds’ and asked the Court to dispense with r 1.17 on the basis that ‘allegiance of solicitors may conflict with their duty to represent clients’ which may lead to unjust enrichment of Bar members. 

59 Attached to the affidavit were exhibits which were manifestly pseudo‑legal in nature. There were documents stamped with a seal of a fictitious court named ‘Themis Court of Natural Law – Terra Australis’, there were documents containing assertions that the Commonwealth Government is a ‘foreign privately owned American Company’. There were also out of context biblical references: ‘Thy Kingdom come, thy will be done on earth as it is in the spiritual heavenly realm’. 

60 Needless to say, the material was nowhere near persuasive of why Mr T. Mitevski should be permitted to appear on the company’s behalf. This material alone could be relied on to reject the application to dispense with the r 1.17 requirement. However, Mr T. Mitevski attended the trial and made an oral application to dispense with the requirements of r 1.17. ... 

 64 In the course of making his oral application to dispense with the requirements of r 1.17, Mr T. Mitevski made separate submissions challenging the jurisdiction of the Court to hear this matter. 

65 He stated that he challenged the jurisdiction in ‘a very limited capacity’ and that there was a ‘question mark’ as to the fact that MTV is a ‘company with an ABN and an ACN’ and, as far as his research has indicated, that meant this case should be heard by the Federal Court of Australia, rather than the Supreme Court of Victoria.

66 When questioned about whether he had undertaken legal training, Mr T Mitevski told me ‘I’m a constant student of many facets including the law.’

The reference to the 'unhelpful' material as 'is unfortunately too often the case in recent times' is reflected in note 8:

Most recently the subject of comment in Nelson v Greenman & Anor [2024] VSC 704 at [68]–[73] per Gobbo AsJ. Her Honour describing the pseudo‑legal arguments in that case as ‘nothing more than [a] carnival of absurdity drawn from a mishmash of delusional arguments’, a description which can be adopted here as being apt.

Cartwright v Queensland Police Service [2024] QCA 178 Cartwright sought to overturn orders made by a District Court judge. The judgment states

 In June 2024, Mr Cartwright attempted to file in the registry of the Court of Appeal what purported to be originating process in the Court of Appeal. The documents included: (a) a notice of appeal; (b) an application to the Court of Appeal; (c) an affidavit of Mr Cartwright; and (d) two documents entitled “Statement of Truth”, which expressed inadmissible opinion evidence from a Mr Evans and a Mr James concerning what I assume must have been the conduct of the hearing before the District Court Judge. The documents which Mr Cartwright sought to file seem to be intended to advance an appeal from the orders made in the District Court on 2 April 2024. ...  The Acting Registrar’s letter also suggested to Mr Cartwright that he might consider seeking independent legal advice on how to proceed. ... 

Mr Cartwright’s second affidavit contains various irrelevant statements of pseudo law somehow founded on the notion that he: ““Nevin John” is the “lawful and rightful owner of the duty bearing entity Nevin John Cartwright sign and all it’s debentures, Bonds, CUSIP numbers, trusts and financial assets created, and we are entitled to a hearing in a chapter 3 court [Forge v ASIC] as equity will not allow a statute to be a cover for fraud.” (d) Other irrelevant material was annexed. (e) The notice of appeal might be the document which one would expect some clarity about the basis on which Mr Cartwright sought leave to appeal from the judgment below. Unfortunately, the notice of appeal did not state the grounds “briefly and specifically” as required by r 747(1)(b). But instead, the so-called “grounds” contained substantive, often unintelligible pseudo-legal argument. How that argument bore on showing error by Clarke DCJ was not apparent. ... 

I make the following observations:

(a) On 25 September 2024 Mr Cartwright filed a third affidavit of his, sworn 12 September 2024. 

(b) Like his second affidavit, it started with the same irrelevant proposition of pseudo law earlier quoted. It exhibited a number of documents which were inadmissible to prove the truth of the facts and opinions there asserted, and, in any event, not relevant to the issues before me. ( 

c) Exhibit A contained the same two statements from Mr Evans and Mr James which expressed inadmissible opinion evidence concerning what I assume must have been the conduct of the hearing before the District Court Judge. 

(d) Exhibit B contained a June 2023 media report concerning political steps taken in the United States of America concerning COVID vaccine, and also what appeared to be a copy of a petition filed in a Kansas District Court about the conduct of the drug manufacturer, Pfizer, in relation to a COVID vaccine. 

(e) Exhibit C contained irrelevant information containing Mr Cartwright’s birth certificate number and “social security” number. 

(f) Exhibit D contained extracts from the Magistrates Court annual report for 2020/2021 said by Mr Cartwright’s affidavit to show “that much of the hearings heard in a Magistrates Court is that of Quasi law”. They showed no such thing. 

(g) Exhibit E was said to be the “life event registration patent which demonstrate in it’s pictograph that life event registration creates a duty bearing insurance bond which the lawyer represents being the person or the ancients referred to as nomen and not the man or woman.” The proposition is unintelligible and the contents of the documents incapable of bearing any meaning in relation to the issue before me. 

(h) Exhibit F contained an extract from a government web writing and style guide manual, and also a partial extract from the case of Sydney City Council v Reid (1994) 34 NSWLR 506. Those documents, too, were incapable of bearing any meaning in relation to the issue before me. 

(i) Exhibit G was an extract from some form of report of a decision by the Lisbon Court of Appeal in Portugal which recorded some expression of opinions recording COVID tests and their significance. That document, too, was incapable of bearing any meaning in relation to the issue before me. 

(j) Having exhibited the documents to which I have referred, the affidavit then proceeded to express two paragraphs of legally incoherent argumentative statements concerning the process adopted by Clarke DCJ, and four paragraphs of legally incoherent argumentative statements addressing something to do with Mr Cartwright’s complaints about how the Government handled the COVID epidemic. 

(k) Exhibit H was a copy of what purported to be the dissenting report of Senator Babet to a Senate standing committee which had been established to understand “excess mortality in 2021, 2022 and 2023”. 

(l) The affidavit ended with the pseudo law assertion: “This is official notice that under a Admiralty Rules 1995 (Cth) we will be applying to the special magistrate of HMAS Creswell for an order for a fair trial to be enforced by the military which will be done this week. Declaring a court of law abolished is a crime against humanity and an international law USC, laws of belligerent occupation and Commonwealth law. If you oppose a fair trial, we suggest you retire like Magistrate Guttridge did.”

The Court was unpersuaded.  

In Cartwright v Queensland Police Service - Weapons Licensing [2023] QCAT 168 the Tribunal dismissed Cartwright's application for review of revocation of his firearms licence, noting  the 'applicant holds sovereign citizen beliefs.

 [7] The grounds of suspension were set out in the decision under review as follows:

Correspondence under your hand has been received indicating that you hold Sovereign Citizen beliefs relating to the laws in force in Queensland specific to their non-applicability to yourself. On the 28 December 2021 I note you attended the Rockhampton Police Station front counter asking for their [officer-in-charge] to be arrested. On the 30 January 2022 I note you attended the Rockhampton Police Station to demonstrate your anti- (sic) stance on COVID-19. 

[8] The QPS concluded that Mr Cartwright may not be a fit and proper person to hold a firearms licence, such that his licence should be suspended. 

[9] Section 28(1)(b) of the Weapons Act 1990 (Qld) (‘the Weapons Act’) gives an authorised officer the power to suspend a firearms licence if he or she “considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence”. 

[10] Section 10B of the Weapons Act relevantly provides: (1) In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things— (a) the mental and physical fitness of the person; and (b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and (c) whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and (ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates— (i) the person is a risk to public safety; or (ii) that authorising the person to possess a weapon would be contrary to the public interest; and (d) the public interest. 

[11] Mr Cartwright has filed voluminous material in these proceedings. It is sufficient for the purposes of these reasons to include a brief extract from a submission filed on 4 June 2022: 

The statement that I hold sovereign citizen beliefs is indeed an oxy moronic statement as I do not hold them as Queen Elizabeth the second is the sovereign and holder of all lands in The Commonwealth of Australia being that of we the people and I am just a mere share holder of the true Commonwealth of Australia. If you care to read international law it refers to a sovereign and a national never is the citizen-ship (Corpus Juris) of the trust territory under the Hague and UN charter treaties, being that of the Certificate of Birth Registration being a promissory note to fraudulently turn a child into property of the Reserve Bank and bringing that man or women (sic) into corpus juris.

[12] In Bradley v The Queen [2021] QCA 101 at [2], President Sofronoff described this style of submission as “a confused hodgepodge of confusion”. I am unable to engage with such submissions from Mr Cartwright on the basis that they are incomprehensible. 

[13] What I am more readily able to engage with is Mr Cartwright’s email to the Police Minister dated 21 January 2022, in which he stated:

I Nevin-John ask that you issue me with all classes of weapons ownership ... I also pray for an open and concealed carry permit as the last act with royal accent (sic) was the weapons act of 1973 requiring no licencing for men and women not persons. I Nevin-John ask that a permanent permit to buy be issued with my card that you re-issue as the acts and statutes apply only to legal fictions and as I have left the necromancy.

[14] Mr Cartwright has evinced a discernible view that the Weapons Act does not apply to him. I do not consider that it is in the public interest to issue a firearms licence to persons who do not consider themselves bound by the Weapons Act, and therefore consider that Mr Cartwright is not a fit and proper person for the purposes of section 10B(1)(d) to hold a firearms licence.

Export Controls

'The spoilers from within: Allies and export controls' by Eliza Gheorghe in (2025) Journal of Strategic Studies comments 

Do alliances help or hinder non-proliferation efforts? Existing theories of nuclear non-proliferation have looked at the direct effects of having allies on the spread of nuclear weapons, i.e., whether protégés are more or less likely to obtain atomic arsenals. However, there is value in examining the indirect impact of alliances on non-proliferation, namely how allies make it easier or harder for third parties to acquire nuclear weapons. In this article, I argue that transfers from suppliers allied with enforcers spoil the non-proliferation regime more than assistance from other suppliers, which underlines the difficulties enforcers face when combatting proliferation. ...

Alliances also play an indirect role in the spread of nuclear weapons, especially through the influence enforcers’ allies can have on the non-proliferation regime. ... The literature on sanctions highlights that allies pose a significant challenge for sanctioning states because they can ‘exploit the political cover provided by their alliances’ to engage in sanctions busting. Given the close relationship between sanctions and export controls, the question arises: do allies help or hinder the enforcement of export controls? 

Allies can support non-proliferation efforts by aiding enforcers in cracking down on proliferants through unilateral, bilateral, or multilateral action. However, when states are both enforcers’ allies and suppliers of nuclear technology, they can undermine the non-proliferation regime by transferring nuclear technology to proliferants. Existing quantitative studies have shown that both civilian and sensitive nuclear assistance catalyze proliferation, but they have not examined whether, on average, nuclear technology transfers from spoilers are more damaging than those from other suppliers. This article offers the first comparison of these two types of nuclear assistance to highlight the challenge spoilers pose to enforcers’ non-proliferation efforts. I find that technology transfers from enforcers’ allies accelerate nuclear weapons programs, demonstrating how the non-proliferation regime can be undermined from within. 

The following analysis is organized into five sections that aim to show how allies complicate export controls. The first section looks at the literature on the role of allies in creating and enforcing cartels, lays out a theory of non-proliferation spoiling, and specifies its key predictions. The second part discusses the methodology and the data I draw on. The third section presents the results of the quantitative analysis and shows that allied suppliers spoil the enforcers’ efforts to stem the spread of nuclear weapons more than other nuclear technology providers. I find that spoilers have contributed to the acceleration of nuclear weapons programs via nuclear trade after the creation of the Nuclear Suppliers Group (NSG). The fourth part provides a case study of Italy as a non-proliferation spoiler. The fifth and concluding section offers a summary of the findings, discusses implications for emerging technologies, and proposes avenues for future research.

'From nonproliferation to strategic competition: US export controls and China' by Mathilde Velliet in (2025) International Politics comments 

Technological competition is at the heart of the renewed great-power competition that has characterized relations between the USA and China since the 2010s. The role of technological innovation in the evolution of power relations is already recognized in the literature of international relations. However, developments in US technology policy under the last two administrations raise the reverse question: how does the perception of changing power relations (in this case, Chinese technological catch-up perceived as a threat to US leadership) transform policies granting or denying access to technological innovation? This study sheds light on the transformation in the American conception of export controls: mainly conceived in the post-Cold War era as a law enforcement and nonproliferation tool, it has become a strategic instrument to restrict technology transfers to the People’s Republic of China. Using a Foreign Policy Analysis approach based on the analysis of legal texts, speeches, and interviews with the political actors involved, this article examines the policy process, leading to this fundamental change in US export control policy. As this study demonstrates, this change reflects a new interpretation of the link between economic and security interests, as well as the expansion of the perimeter of American national security.

'The trojan submarine: AUKUS, Pillar II, and the U.S. ITAR' by Paul Esau in (2024) 2 Journal of Strategic Trade Control comments 

Since the announcement of the AUKUS trilateral security partnership in September 2021, critics have attacked the U.S. International Traffic in Arms Regulations (ITAR) as a key obstacle to its success. Echoing long-standing frustrations over the regulatory burden of the ITAR, these critics manufactured an “AUKUS-ITAR dilemma” which seemed to require a general ITAR exemption for military trade between the three partner countries. This dilemma minimized critical disparities between the Australian, U.K., and U.S. military export control regimes and exaggerated the impact of ITAR reform on the success of AUKUS, especially on the emerging technology collaboration envisioned in the second pillar of the partnership. Yet recent U.S. legislation and regulatory reform indicate that rather than eliminating U.S. military export controls, the AUKUS-ITAR dilemma has resulted in a more robust, ITAR-based plurilateral export control regime dominated by U.S. interests and primed for further expansion. 

In September 2021, the United States, Australia, and the United Kingdom jointly announced a trilateral security partnership to address evolving threats in the Indo-Pacific region—AUKUS. Described as “the most significant security arrangement among the three countries in a generation,” this partnership was initially perceived as a vehicle for the transfer of nuclear propulsion technology to Australia for use in conventionally-armed, nuclear-powered submarines. External analysis, especially in the U.S., focused on the controversial export of nuclear technology and reactions from the impetus for the new partnership: China. While the second-last paragraph of the official joint statement also promised new collaboration in “cyber capabilities, artificial intelligence, quantum technologies, and additional undersea capabilities,” this second pillar of AUKUS seemed like an ambiguous afterthought. Submarines, not science fiction, were the core deliverable of the partnership. 

Yet as the timeline for the submarine sales (Pillar I) lengthened, Pillar II emerged as not only central but also essential to the AUKUS partnership. In the words of one former U.S. official and industry analyst in March 2023, “If Pillar Two fails, AUKUS will be a failure. Plain and simple.” Industry representatives and several former U.S. ambassadors to Australia positioned U.S. military export controls, specifically the U.S. International Traffic in Arms Regulations (ITAR) as obsolete Cold War-era relics and impediments to collaboration among the three AUKUS partners, creating an “AUKUS-ITAR dilemma.” The ITAR was called a “unique threat” to U.S. national security, and the “most significant obstacle” to winning a strategic competition with China. These arguments echoed long-standing frustrations over the regulatory burden of the ITAR in all three countries, and inspired a series of radical proposals from hawkish members of Congress to implement a blanket ITAR exemption for AUKUS partners. 

However, the passage of the 2024 National Defense Authorization Act (NDAA) in December 2023 revealed that these arguments had not been as persuasive as advocates had originally hoped. Instead, the U.S. Congress pursued a more moderate version of ITAR reform predicated on ensuring comparability between that the U.S., Australian and U.K. export control regimes, with implementation entrusted to conservative elements within the U.S. Department of State. In May 2024, the State Department released a proposed rule outlining a limited ITAR exemption that was finalized in August and implemented on September 1. Instead of receiving the crown jewels without caveat, Australia and the U.K. were forced to adopt ITAR-like regimes of their own. 

Does this result mean Congress missed a “generational opportunity” to implement AUKUS and ensure a new era of allied collaboration and innovation? Not quite. This article argues that Congress has evaded an attempt to use the AUKUS/ITAR dilemma as a “trojan horse” for long- standing commercial frustrations with the ITAR. This attempt built on previous initiatives to exempt Australian and British entities from ITAR licensing requirements and minimized critical disparities between the Australian, U.K., and U.S. military export control regimes. It also misaligned the goals of Pillar II and the probable outcomes of blanket ITAR exemptions, exaggerating the impact of the ITAR on military trade between the three countries – especially exports of critical and emerging technologies. As shown by the existing Canadian ITAR exemption, licensing relief has limited potential to realize the sort of seamless military integration and research collaboration envisioned under Pillar II. Ultimately, rather than eliminating U.S. military export controls, the AUKUS/ITAR dilemma has created a more robust ITAR-based regime dominated by U.S. interests and primed for further expansion. This article begins by describing the re-emergence of export controls amidst increasing competition between the U.S. and China. After introducing the ITAR and contrasting it with the Australian and U.K. military export control regimes, it summarizes a series of recent attempts to reducing export licensing requirements among the three AUKUS partners and highlights the key obstacles to greater collaboration. Finally, it contextualizes three major arguments used to criticize the ITAR prior to the passage of the 2024 NDAA and explores the possibility that AUKUS constitutes not only a security partnership but also lays the groundwork for a new plurilateral military export control regime.

Dissection

'A common law power to dissect: a medico-legal history' by Joshua Shaw in (2025) 33(1) Medical Law Review states 

Comments on the legal history of anatomy and dissection in common law jurisdictions often cite three statutes. First, the Concerning Barbers and Chirurgians Act 1540, which entitled the Company of Barbers and Surgeons of London to the bodies of four executed convicts each year for the purpose of dissection. Secondly, the Murder Act 1751, which granted courts the power to sentence murderers to be dissected by members of the Company of Surgeons of London after their execution. And, finally, the Anatomy Act 1832, which repealed the Murder Act 1751 to the extent that it allowed dissection as punishment, empowered those in lawful possession of bodies to direct their use for anatomical examination, and introduced a regulatory scheme for schools where anatomical examinations took place. These statutes supplied bodies for dissection under certain conditions as exceptions to fundamental obligations at common law to effect and preserve a parishioner’s right to ‘Christian’ or ‘decent’ burial and, thus, to facilitate requirements of ecclesiastical or church law. 

The common law, in such comments, is associated with the traditional religious feeling of what ought to be done with the dead (namely, Christian or decent burial), a feeling popularly held in England at the time of the Anatomy Act 1832 and required by ecclesiastical law. Christian eschatology placed importance on burial so as to preserve the dignity of the body until resurrection at the Last Judgment, and whilst religious elites could tolerate other uses, such as dissection, burial of the body remained integral to ecclesiastical law as that was practised in England. Common law courts generally deferred to ecclesiastical administration and courts to handle disputes relating to the disposal of the dead, following the comment of Edward Coke that the dead body was of ‘ecclesiastical cognizance’. Indeed, Coke suggested that this was why no property could exist in a dead body at common law, which William Blackstone appeared to concur with whilst relying on Haynes’s Case (1614) as authority. But in the eighteenth and nineteenth centuries, common law courts increasingly clarified obligations they could enforce to facilitate ecclesiastical law. This included requiring the performance of burial from certain persons upon whom the duty to bury was placed, as well as establishing criminal offences for preventing the decent burial of the dead or disinterring the buried dead without lawful excuse. 

Legislation, in contrast, was responsible for deviations from the tradition held by the common law, deviations tolerated owing to the putative utility of modern medicine and surgery. Anatomy and dissection were thereby authorized only according to the provisions of these statutes; such acts were not otherwise lawful. That image of the law appears to have led some historians to refer to dissection outside the permissions of the Anatomy Act 1832 as illegal, for want of authority. Likewise, some jurists, relying on such histories, construct decent burial (and, more recently, cremation) as all the common law ordinarily permits; most other uses, like anatomy and dissection (outside coronial examinations), depend entirely upon legislation for their authority.  However, the historical record is more complicated than this image of the law. There were jurists who insisted that what could be done at common law was more than decent interment. Rather, the common law, by their argument, appeared to admit the existence of a power to dissect, claimed by physicians, surgeons, and apothecaries prior to and outside of legislation. 

As this article shows, to these jurists, such a power authorized and regulated dissection outside the contexts contemplated by anatomy legislation. This is important to show for at least two reasons. First, a common law power to dissect challenges the narratives ordinarily told about the history of anatomy law specifically, and the law of the dead generally, which is instructive for understanding medico-legal history in England and Wales and throughout the British Empire (where legislation could be scant, such as in the Province of Canada and Nova Scotia).  Secondly, a common law power to dissect may be extant where legislation has not displaced it, and thereby authorize certain uses of the human dead, such as dissection specifically, as well as wider uses if the power is understood to also support a more general principle that the common law did not require burial. The presumptive legality of the body’s use begins analysis at a different point, potentially allowing for a wider array of uses if not dependent on statute. That will be relevant to courts that must adjudicate ‘exceptional’ uses of the human dead or tissue and look to the historical record for guidance, such as when Justice Jackson of the High Court of Justice in England and Wales considered ‘the old authorities on the unlawful treatment of dead bodies’ with respect of the novel practice of cryonics.  Likewise, legislators and others interested in law reform affecting the disposal of the dead and the use of human bodily materials will benefit from a corrected historical record. 

As Margaret Brazier has said alone and with Jonathan Montgomery, medico-legal history assists the lawyer in examining the relationships of law and morality to medical practice, by tracing the conditions for their emergence.  Without history, ‘we waste time and effort and repeat the same mistakes’ and ‘[i]f we have only a vague notion of history, a notion unsupported by evidence, we may make bad laws today’.  I specifically engage in medico-legal history as that services doctrinal understandings of medical law, ‘us[ing] formal legal materials such as reports of decisions […] and evidence of lawyers’ argumentation and reflections, in order to reconstruct the mind of the professional legal collective as it understands its own activity in guiding conduct and resolving disputes’.  Re-examining old doctrines can disrupt the orthodoxy of current legal doctrine, suggesting alternative possibilities for law through its retelling.  Especially with the young discipline of medical law, in search of its history and the history of its subject matter,  histories of legal doctrine remain worthwhile. 

The article focuses on identifying the historical sources and elements of a common law power to dissect, as expressed by some jurists. Analysis of its broader significance, historically and to contemporary legal doctrine, merits more space than allowed here. But I do occasionally place the power to dissect in the context of bodysnatching, and the inadequate supply of bodies for dissection and anatomical examination, which precipitated the Anatomy Act 1832. Bodysnatching involved disinterring the buried dead or, more dangerously, murder, so to procure bodies for dissection and anatomical examinations. The practice emerged in response to the inadequate supply of bodies for anatomical examination, especially as private and university anatomy schools were increasingly opened in the late-eighteenth and early-nineteenth centuries, creating greater demand.  It is necessary for me to place the power in this context, as it will assist the reader of legal history in gaining a fuller understanding of the policies underlying the doctrine and its use. Furthermore, the context preceding the Anatomy Act 1832 also supplied at least two cases that led some from this period to conclude that anatomy and dissection were unlawful at common law.  These cases are important to analyse since they may be raised to negate the existence of a power to dissect. 

The article has three parts: first, I show where and how jurists in the common law described the power to dissect; secondly, I set out the power’s elements, particularly as it interacted with the ‘no property’ rule, criminal law, the law of tort, and any other municipal law; and thirdly, I observe how the power to dissect was threatened by concern for bodysnatching but ultimately persisted despite how certain cases were narrated.

Scams

The Scams Prevention Framework Bill has passed through the national legislature. The expectation is that it will set out consistent and enforceable obligations for businesses in key sectors, with overarching principles for compliance by all members of designated sectors. 

The ACCC has announced that the Commission will 'closely monitor regulated entities’ compliance with principles to prevent, detect, disrupt, respond to and report scams. The legislation empowers the ACCC to investigate potential breaches and take enforcement action where entities do not take reasonable steps to fulfill obligations under the principles, with fines of up to $50 million and scope for consumers to seek redress from regulated businesses. The ACCC will be involved in development of the formal designation of sectors, sector codes, and consumer and industry guidance. The initial sectors will be banks, certain digital platforms (including social media) and telecommunications providers. 

 Under the Framework, the ACCC will enforce the digital platforms sector scams code and take enforcement action where digital platforms breach obligations. The Australian Securities and Investments Commission will be the regulator for the banking sector code. The Australian Communications and Media Authority will be the regulator for the telecommunications sector code. There will be a single external dispute resolution body under the new Framework, involving the Australian Financial Complaints Authority (AFCA). 

A Treasury Minister may, by legislative instrument, designate one or more businesses or services to be a regulated sector for the purposes of the Framework. This designation instrument is subject to Parliamentary scrutiny through the disallowance process and sunsetting. The Treasury Minister may designate an individual business or service, or designate businesses or services by class, meaning that the Minister may in effect designate specific entities to be a 'regulated sector' within a designation instrument. 

 Without limiting the businesses or services that may be designated, a Treasury Minister may designate the following classes of businesses or services to be a regulated sector (or a subset of those business or services): 

 • banking businesses, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; 

• insurance businesses, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned; 

• postal, telegraphic, telephonic or other similar services (within the meaning of paragraph 51(v) of the Constitution), which can include, but is not limited to: - carriage services within the meaning of the Telecommunications Act; - electronic services within the meaning of the Online Safety Act 2021, such as social media services within the meaning of that Act; - broadcasting services within the meaning of the Broadcasting Services Act 1992. 

 The description of the businesses and services are based on the relevant constitutional heads of power and provide flexibility for the Framework to be expanded to a wide range of sectors over time. It is not intended to provide a roadmap of the exact sectors the Government is proposing to designate. The Government's intention is to initially designate telecommunications services, banking services and certain digital platform services. 

 Before designating a sector to be subject to the Framework, the Minister must consider all the following matters: 

 • Scam activity in the sector. For example, the Minister may identify that certain businesses or services experience high levels of scam activity.   

• The effectiveness of existing industry initiatives to address scams in the sector. For example, there may be existing initiatives in a sector seeking to protect against scams but do not appropriately address scam  activity in that sector.   

• The interests of persons who would be Framework consumers of regulated services for the sector if the Minister were to make the designation. For example, designation may be appropriate if the Minister considers that consumers would be better protected against scams arising out of activity in a sector if it is subject to the Framework, rather than relying on existing frameworks.   

• The likely consequences (including benefits and risks) to the public and to the businesses or services making up the sector if the Minister were to make the designation.   

• Any other matters the Minister considers relevant to the decision to designate a sector to be subject to the SPF. For example, this could include the compliance and regulatory costs of designating sectors, the privacy or confidentiality of consumers' information, the regulatory impact of designation, the outcomes of consultation with impacted entities and consumers, and scam activity in the relevant sector in another jurisdiction. 

 Before designating a sector, the Minister must also consult relevant consumer groups and the businesses or services making up the sector, or such associations or other bodies representing them as the Minister thinks appropriate. Given the nature and scope of the requirements under the Framework, this is 'appropriate to ensure consumers and affected entities are given notice of the Government's intention to designate the relevant sector. It will also provide these stakeholders with an opportunity to give feedback on the details of the designation instrument, including on any application provisions or transition period before the SPF comes into effect for the sector'.

What is a 'Scam'? The legislation seeks to provide certainty on the scope of harms intended to be captured by the Framework, with a scam being a direct or indirect attempt (whether or not successful) to engage an  Framework consumer of a regulated service where it would be reasonable to conclude that the attempt: 

 • involves deception; and 

• would, if successful, cause loss or harm including the obtaining of SPF personal information of, or a benefit (such as a financial benefit) from, the SPF consumer or the SPF consumer's associates. 

 The elements of the definition of 'scam' are objective in nature and do not require the scammer's state of mind to be established. This definition is deliberately broad to capture the wide range of activities scammers engage in and their ability to adapt and to adopt evolving behaviours over time. The Framework rules can also provide an appropriate safeguard to exclude conduct that is not intended to be captured under the Framework. 

 The definition of scam captures both successful scams which have caused loss or harm to a Framework consumer, and scam attempts which have not yet resulted in loss or harm to a Framework consumer. This reflects the obligations in the principles, which require regulated entities to take action against scams, regardless of whether the scam has resulted in loss or harm to a Framework consumer or an associate of the consumer. The use of 'attempt' in the definition of scam has its ordinary meaning, which is intended to cover efforts made to engage a Framework consumer. There may be an attempt to engage a Framework consumer even if the attempt is indirect, such as where it is directed at a cohort which includes the consumer or is directed at the public more generally. The attempt to engage an SPF consumer may be a single act or a course of conduct. 

 The legislation introduce the concept of an 'SPF consumer'. The obligations imposed on regulated entities are often in relation to a Framework consumer. This is intended to clearly set out the scope of obligations under the Framework and who they are designed to protect.  A Framework consumer of a regulated service is: • a natural person, or a small business operator, who is or may be provided or purportedly provided the service in Australia; or • a natural person who is ordinarily resident in Australia and is or may be provided or purportedly provided the service outside of Australia by a regulated entity that is either an Australian resident or is providing or purportedly providing the service through a permanent establishment in Australia.  The meaning of 'Australian resident' and 'permanent establishment' with respect to the regulated entity in this context leverages the existing established definitions in the ITAA 1997. 

A Framework consumer is intended to cover any natural person or small business operator who is in Australia when they are provided the regulated service, regardless of where that service is based (for example, the regulated service may be based overseas). This includes natural persons who are only temporarily in Australia. The definition also intends to cover any natural person who is ordinarily resident in Australia but is overseas when they are provided a regulated service that is based in Australia. A Framework consumer could be 

 • an Australian resident in Australia using either an Australian-based or overseas-based messaging service that is offered in Australia; 

• a person ordinarily resident in Australia who is overseas but using an Australian-based banking service; or 

• a tourist visiting Australia using an Australian-based or overseas-based telecommunication service that is offered in Australia. 

 It is not intended that a foreign entity will be regulated with respect to consumers in foreign markets. For example, where an Australian consumer is overseas and is impacted by a scam on a social media service offered by an entity based overseas, this is not intended to be within the scope of the Framework. 

 Small businesses are not excluded from being Framework consumers based on their corporate structure. The small business may be in the form of a sole trader, company, unincorporated association, partnership or trust. Whether a small business is a small business operator for the purposes of the Framework will differ slightly depending on whether the small business is a body corporate or not.  

If a small business is a body corporate, it is a small business operator if it meets all of the following conditions: • the sum of the business' employees and the employees of any body corporate related to the business, is less than 100 employees; • the annual turnover of the business during the last financial year is less than $10 million; and • the business has a principal place of business in Australia.   If a small business is not a body corporate, it is a small business operator if it meets all of the following conditions: • the business has less than 100 employees; • the annual turnover of the business, worked out as if the person were a body corporate, during the last financial year is less than $10 million; and • the business has a principal place of business in Australia.

Justice

'What if animals are moral agents?' by Taimie L. Bryant in (2024) 109 Cornell Law Review 1734 comments 

In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited to costs incurred for Justice’s care up to the time of the hearing. Justice will need specialized lifelong care. Represented by the Animal Legal Defense Fund, Justice brought suit in his own name for monetary damages sufficient to cover those costs. Vercher responded with a motion to dismiss on the ground that Justice lacked standing to sue her. 

Among other arguments in opposition to the idea of Justice having standing to sue, Colb considers the argument that Justice is not a “legal person” because he lacks the ability to fulfill legal duties, which is frequently viewed by courts as necessary for holding legal rights. As Colb puts it, there is an “idea that only those who can respect others’ rights are entitled to rights of their own.” Colb agrees that Justice does not have a legal obligation to respect the rights of humans or other animals, but she analogizes Justice’s situation to that of infants and cognitively incapacitated humans whose rights are recognized and protected without such a requirement of capacity to respect others’ rights or to bear duties in relation to them. Known as the “argument from marginal cases,” it is a claim that recognizing animals as holders of rights (even if limited) is required as a matter of justice arising from the requirement that like entities be treated alike. For Colb, animals’ likeness to humans lies in their sentience, not in their cognitive capacities or their ability to perform legal duties to others. Thus, they should be included in the moral community, and their membership in that community should be reflected in the law in the form of rights and standing to enforce those rights. 

Colb also argues that Justice is the logical plaintiff because he is the actual victim of wrongdoing. This critical point can be missed during abstract debate about whether or not a horse can or should be recognized as the plaintiff in a lawsuit. No one doubts that Vercher lacked the right as Justice’s owner to starve him, fail to provide shelter for him during severe weather conditions, or allow his skin to deteriorate for lack of cleaning and appropriate medical care. No one doubts that Justice is the intended beneficiary of the anticruelty statutes under which Vercher was convicted. What they doubt is that those statutes confer legal rights or that Justice himself should be able to sue her in his own name. Something gets in the way of accepting that the actual, direct victim of acts explicitly recognized under the law as wrongful should be able to sue in their own name, even if that victim is an animal. Yet, if not Justice, who would have standing to seek the restitution needed to address the harm inflicted on Justice? Legal standing to address harm to animals is notoriously difficult. Animals cannot yet sue in their own names, and humans cannot reliably redress wrongs to animals except in limited situations in which an owner of an injured or killed animal seeks redress for harm to their property. Animals are not yet understood by courts or legislatures as the sort of beings entitled to be “legal persons.” 

Whether an animal can be a legal person was raised also in the case of Happy, an elephant living a solitary life in a grossly insufficient enclosure at the Bronx Zoo. Unlike Justice’s case, Happy’s case was not grounded in tort law. Seeking Happy’s transfer to an appropriate sanctuary, the Nonhuman Rights Project filed a writ of habeas corpus petition on her behalf. Two lower courts rejected the petition on the ground that the writ could not be used for nonhumans because they are not legal persons, basing their decisions on the jurisdiction’s precedent established in a habeas case involving a chimpanzee. The Nonhuman Rights Project filed an appeal in the New York Court of Appeals, seeking to challenge that precedent and to secure for Happy a writ that would allow justice to be done in the form of moving her to a sanctuary where her needs could be met. However, the New York Court of Appeals ultimately adopted the reasoning and outcome of the lower courts. The courts’ reasoning was much the same as in Justice v. Vercher: Animals cannot be legal persons because they are not humans and cannot be holders of legal duties. It is not clear that social contract theory, with its apparently required linkage of rights and duties, is particularly helpful for understanding the recognition of rights and duties of humans, let alone animals. Nevertheless, as it is currently understood, social contract theory forecloses animals from the community of legal rights-holders, even if they are understood to hold moral rights. 

While the matter was pending, Professor Colb, Professor Emeritus Laurence Tribe, and Professor Michael Dorf submitted an amicus brief addressing the contention that Happy could not be a legal person because the ability to bear duties is necessary for having rights. They argued that Happy is a legal person for purposes of New York’s common law writ of habeas corpus, “which has a noble tradition of expanding the ranks of rights-holders,” and that it is a matter of justice that the Court recognize it in this case, as it had in previous habeas corpus cases involving enslaved individuals, women, children, and others not recognized at the time as having any type of autonomous legal status.  On a case-by-case basis, the courts had considered as a matter of justice—not rights—whether to provide relief through the “Great Writ.” The writ is designed to promote justice, not simply to validate or reject the status of a petitioner as a legal person. Whether or not Happy meets some standard of rights and duty-holding, it is unjust, the amicus brief authors wrote, for the court to deny the writ petition of Happy, a sentient, social being with complex cognitive capacities forcibly brought to this country and kept in isolation from others of her species in an enclosure with grossly insufficient space for her needs, simply because she is not a human. Noting that the request for relief was as modest as those that led to historical uses of the writ, the authors pointed out that granting the writ in Happy’s case would not result in a change in her legal status in all conceivable contexts; it would result only in her moving from a harmful environment to a sanctuary where she would suffer less and have greater ability to flourish. Nor would it result in a change of the legal status of other animals; a writ corrects injustice only in the limited ways and contexts spelled out in the writ. 

To animal protectionists, legal recognition of animals like Justice and Happy as legal persons is a matter of social justice, whether or not they have legal rights. The Nonhuman Rights Project’s legal representation of Happy resonates most strongly with that position since the writ of habeas corpus had been used previously to promote justice for those who lacked legal rights. But this just raises questions about the nature of “social justice” and the sort of being that can be the focus of social justice claims. Black’s Law Dictionary defines “social justice” as “[a] fair and proper administration of the laws that conform to the natural law that covers all people regardless of gender, origin, possessions or religion” and further points to the definition of “civil rights.” In short, it is a conception of justice that connects legal structures to “natural law,” with humans as its focus. Animals are not humans, and so animal protectionists must make three arguments to support the claim that animals should be protected as a matter of social justice. First, they must argue that animals are sufficiently like humans such that justice requires treating them alike. Second, they must argue that “like treatment” means bearing legal rights. Third, they must argue that justice also requires legal opportunity to enforce the rights they hold. No animal protectionist has ever argued that comparability to humans should result in the same rights that humans hold. For instance, no one has yet argued that animals should have legal voting rights, although Christopher Stone and Robin Wall Kimmerer have come close. 

As to the first matter (sufficient similarity to humans), animal protectionists have argued that animals are similar enough to humans because of sentience or cognitive capacity. Treating sentience (the capacity to suffer) as the standard of comparison results in the inclusion of the most animals in the moral community but limits the reach of legal rights to preventing the infliction of suffering. This is the standard basis of state anticruelty statutes, although any amount of human-inflicted suffering is allowed under those laws if there is “necessity.” “Necessity” sweeps broadly to include any treatment or use of animals that benefits humans. Thus, anticruelty statutes protect only against purely gratuitous, senseless infliction of severe suffering and death. Moreover, as the Vercher case shows, animals lack standing to use the law even in those situations. 

Advocacy for animals based on their similar cognitive capacity to humans covers fewer types of animals, although the types of animals demonstrated to have such capacity has grown to include animals as diverse as whales, elephants, dogs, and bees. As in the case of sentience as a basis, recognition of the human-like cognitive capacity of some animals has resulted in very few legal benefits specific to that ability. For instance, primates can still be used in experiments without restraints on research design that requires their enduring horrific suffering and elephants can still be kept in cramped enclosures, but their housing must include opportunities for intellectual stimulation. Unfortunately, the animals themselves and those who care about them lack standing to enforce even those limited protections. 

This Article identifies a specific capacity—animals’ capacity to make moral decisions and to act morally—to consider whether recognition of that capacity as similar to humans’ moral capacity justifies inclusion in the community of legal rights-holders with the legal opportunity to enforce those rights. At the heart of the argument that animals must be able to bear legal obligations in order to have rights is an argument about moral agency. As Matthew Kramer has written, “[t]o bear a legal obligation is simply to be placed under it,” and meaningful comprehension of the obligation is a “separate matter.” As it is now, billions of animals are placed under the obligation to serve the interests of humans in research, entertainment, and food production. What is meant by “holding duties” then is actually “voluntarily and knowingly holding duties as morally binding obligations.” Even as to humans, this is not particularly convincing, but where animals are concerned, a deeper problem is that animals are not believed to be capable of holding duties as a moral matter at all because they are not understood to have moral agency. Only humans capable of abstract reasoning about moral behavior and members of the archetypal class of humans (such as infants and cognitively impaired humans) are considered to have moral agency sufficient to hold duties and thus hold rights. 

Animal protectionists often accept the characterization of animals as lacking moral agency and use the argument from marginal cases to defend their view that animals should be protected despite their lack of moral agency, just as many humans (children and those with cognitive incapacity) lack moral agency. However, this view should be reconsidered in light of emerging scholarship revealing that the type of moral decision-making by at least some animals is comparable to that of humans. Instead of focusing narrowly on whether animals canhold obligations and duties towards humans who would bear reciprocal duties towards animals, it could prove fruitful and just to consider whether animals have moral consciousness that leads to morally-based behaviors and, if so, whether their ability to make and act on moral decisions makes our failure to protect them as legal persons unconscionable.

Performativity

In the matter of an application by Uncle Robbie Thorpe for special leave to appeal [2024] HCASL 315 Edelman and Jagot JJ refused Special Leave to Appeal, stating 

 The applicant requires an extension of time within which to seek special leave to appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria (McLeish JA), which refused the applicant's application for a direction to a Registrar to accept documents for filing. 

The applicant's proposed grounds of appeal have no prospects of success. It would therefore be futile to grant the extension of time that is sought.

In Re Thorpe [2024] VSCA 172 the Supreme Court stated

In October 2023, Uncle Robbie Thorpe (‘the applicant’) sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming King Charles III as the accused and alleging that he had committed ‘continuing acts of genocide ... against First Peoples’. 

The court refused to issue the summons and did not initiate a proceeding. By originating motion filed in the Trial Division on 7 March 2024, the applicant sought judicial review of that decision. A trial was conducted on 19 July 2024 and the matter stands reserved for judgment. After judgment was reserved, the applicant filed two further affidavits affirmed on 22 July 2024. He also sought to file a third affidavit. The judge refused leave in relation to that affidavit, but indicated that an outline of submissions, draft minutes of order and addendum to the authorities relied on which were exhibited to that affidavit would be considered by the judge in deciding the case. On 23 July 2024 the applicant was advised, through the judge’s associate, that the judge considered that the balance of the affidavit did not concern any issue for determination in the proceeding. The decision was not made the subject of any order. 

The applicant then sought to file documents in the Registry of the Court of Appeal via RedCrest, including an application for leave to appeal the judge’s decision not to accept the third affidavit. The Registrar rejected the documents for filing. The applicant was advised by email that the Registrar considered that the ruling that he sought to challenge was not a decision from which an appeal could lie to the Court of Appeal. As a result, the Court did not have jurisdiction to consider the proposed application for leave to appeal, and the documents that had been submitted were ‘substantially irregular’.