Pharma

'Repositioning for Rare Diseases – Too Much, Too Little or Just Right?' by Jakob Wested and John Liddicoat in (2021) NIR: Nordiskt Immateriellt Rättsskydd / Nordic Intellectual Property Law Review comments 

“Drug repositioning” refers to the idea of expanding the use of an already authorised drug, for the treatment of new patient categories with the same diseases as well as the treatment of new diseases. Repositioning is considered an important innovation modality to increase treatments for patients with rare diseases. Yet, two recent EU studies have raised concerns that developers who reposition drugs are financially overcompensated to the detriment of national healthcare systems and patients and, therefore, suggest limiting the benefits provided by the orphan drug regulation. In this study, we show that the number of drugs repositioned for rare diseases (22%) is more modest than predicated and argue this indicates that developers may not be overcompensated, otherwise we would expect a much higher number. Furthermore, we argue that changing the incentives provided by the orphan drug regulation to address overcompensation is not the option if policymakers want to realise the benefits of repositioning. Instead, we suggest policymakers consider other legal and regulatory tools to address overcompensation issues, such as competition law and novel mechanisms emerging in Canada.

Disruption

'Silicon Valley, disruption, and the end of uncertainty' by Susi Geiger in (2020) 13(2) Journal of Cultural Economy 169-184 states 

This paper reflects on the relationship between high-tech disruption narratives and uncertainty. My main argument is that an economic sociology of the future is incomplete without addressing the ‘demonic’ or rather eschatological elements apparent in the promissory twin rhetoric of disruption and inevitability that a number of contemporary technology firms employ. The conjuring up of liberatory high-tech futures implicates a political-philosophical perspective of the end game. It utilizes at once the productive power of uncertainty to create visions of ‘absolute riches’ and societal gain but at the same time narrows these futures down to one inevitable alternative to the status quo. Through the examples of two Silicon Valley disruptor firms, I argue that these eschatological narratives need to be opened to social scientific critique in order to examine their potential societal consequences above and beyond the narrow geographic confines of ‘the Valley.’

 Geiger comments 

 The historian of economics and science Philip Mirowski once said, when talking about the 2008 Recession, that ‘In the neoliberal land of make-believe, if you can sell it, then it must a fortiori be legitimate’ (Mirowski 2012, p. 290). Indeed, the relationship between fictionality and the economy has been subject to much scrutiny in recent years (e.g. Esposito 2013, 2015, Beckert 2016, Geiger and Finch 2016, Meyers and van Hoyweghen 2018). This literature has, by and large, argued that economic expectations, as projections made under conditions of uncertainty, are necessarily fictional – they have a ‘broken relationship to reality’ (Beckert 2016, p. 62). Where fictional expectations around future markets or technologies are circulated, these expectations act as cognitive reference points for stakeholders to buy-into the fiction over time (Brown 2003). These expectations can be strongly affectively laden – they can be taken over by ‘irrational exuberance’ (Shiller 2000, Geiger and Gross 2017). But do expectation-based theories account for the ‘demonic’ undertones that have been diagnosed in the discourses of disruption found in contemporary technology circles (Beckert 2016, p. 285)? 

In this paper, I examine the political-philosophical and quasi-religious colourings of contemporary high-tech disruption narratives, as circulated and perpetuated by many Silicon Valley-type (bio)-technology firms. Where Hogarth (2017) sees these firms suspended in a liminal space between the ‘regime of hope’ and the ‘regime of truth,’ I argue that their disruption narratives work as political technologies, conjuring up a ‘theological unconscious’ (Muniesa 2017), where futures are envisaged as liberatory and essentially faith-based alternatives to the current status quo. Recent works in the sociology of expectations see capitalist futures as multiple and entrepreneurs productively utilizing this multiplicity (Esposito 2013, 2018). In my reading of high-tech disruption narratives, this multiplicity is often paradoxically combined with a narrowing down of all potential futures to one. This political or philosophical techno-vision is elevated to be the only possible alternative to the status quo; it signals the necessary destruction of the old and the creation of a world that clearly parts with whatever has preceded it. In other words, I propose that through advocating ‘the end of uncer- tainty’ disruption narratives gain an eschatological character. 

In its secular usage eschatology signals both the fulfilment of time and the opening up of a new and better future (Pannenberg 2008, Loureiro 2010). In contrast to an expectation-driven rendering of economic futures, eschatologies of disruption thus start with an end state and work backwards, using a metaphorical future perfect rather than the ‘future present’ (Esposito 2018) of imaginaries and expectations: future worlds are wished into existence in a quasi-messianic manner. 

I investigate this proposition by tracing the evolution and narratives of two organizations that, like many other Silicon Valley-type firms, have played heavily on a future-oriented disruptor narrative: the consumer genomics testing firm 23andMe and the blood-testing firm Theranos. My investigation of these two firms’ narratives is based on extensive secondary data and complemented with broader insights from an ethnographic study in the Silicon Valley digital health ecosystem. I empha- size that I am not drawing any factual parallels between Theranos’ alleged fraudulent behaviour and a firm – 23andMe – that operates in the regulatory sunlight. My interest rather revolves around the political-philosophical narratives which these firms build and the effects these may have in conjuring up future markets-to-be. Overall, then, this paper reflects on the relationship between expectations, uncertainty, and high-tech eschatologies that the omnipresent concept of disruption creates.

Charities

Two items in today's The Sunday Age (Melbourne) discuss questions about trusts, charity and the 'purple dollar'. 

The Mormon Church has been accused of engaging in significant tax evasion in Australia, allowing its adherents to collect hundreds of millions of dollars in tax exemptions that are not lawfully available to followers of other religions. Some of its tax activities are run through a shell company, with no paid employees, that could be in breach of Australian tax laws, an investigation by The Sunday Age and The Sun-Herald has found. ...

The investigation has uncovered how the Utah-based Church of Jesus Christ of Latter-Day Saints (commonly called Mormons) appears to have structured itself internationally to minimise tax for its adherents and maximise benefits for itself, in particular in Australia and Canada. In Australia, the church has ensured that donations and tithing – which are not tax-deductible – are routed through a charitable trust to gain 100 per cent tax deductibility. 

Mormons are required to pay 10 per cent of their gross income in tithing, a significant financial impost on followers. Australia is unusual among English-speaking countries in that it does not allow tax deductions for tithing or church donations. But it does allow generous deductibility for charitable giving. The Mormon Church has structured itself to maximise that tax benefit, and reports that it spends up to 70 per cent of its Australian income on charity. 

Globally, the church spends less than 1 per cent of its income on charity. “It’s all a ... smoke-and-mirrors thing,” claims barrister Dr Neville Rochow, QC, who had senior roles in the church, including working as its representative to the European Union until 2018, and previously in pastoral and public affairs roles. He claims the church is “taking it off the back of taxpaying Australians”. Dr Rochow said the church spent little on charity. “They don’t set up schools, don’t set up hospitals, don’t have homeless shelters, don’t have places for women to escape when they have bad marriages.” 

The tax structure has meant that since 2015, Australian adherents have been able to draw on $400 million in tax deductions not available to followers of other religions or denominations. A Mormon Church spokesman did not respond to written questions about this discrepancy, but said the church operated in accordance with tax laws. 

In the mid-2010s, Dr Rochow was involved in a Mormon-instigated econometric study used to justify its tax status and to ensure that religious trust properties of other churches were not taxed. Soon after, it started to direct substantial donations and tithing through its charitable trust – a decision he was not involved in. Before that, in a submission it made to Treasury, the church said it spent just $36,000 a year, on average, on charitable donations between 1985 and 2010. 

There has been little to no growth in the 61,600 Mormon adherents in Australia over the past decade that could explain the reported 2000-fold increase in charitable giving. Each year, funds are transferred from the church’s charitable trust to a separate entity, Sydney-based LDS Charities Australia. From that entity, about $70 million a year is distributed to global charitable causes. The church spokesman said after LDS Charities Australia was created in 2012, “there was a desire and the ability to significantly increase the support of global humanitarian and development projects”. That $70 million a year is close to the amount the global church – whose strongest following is in the United States – itself says it gives each year on average throughout the world, according to its own annual reports. 

LDS Charities Australia has no paid staff, Australian website, expenses or infrastructure to run what purports to be one of the country’s major charities, collecting more in individual donations than Oxfam, Beyond Blue or Caritas Australia, the Catholic Church’s international aid charity. It runs in parallel with the Utah-based Latter-Day Saints Charities, which apparently directs the church’s charitable spending throughout the world and includes all its senior staff, management and infrastructure. ... 

University of Tampa professor of sociology Ryan Cragun, an expert on Mormonism, said it was inconceivable that the church was making significant global charitable decisions from Australia. “It’s a stunningly hierarchical religion,” Professor Cragun said. “So, any big decisions like that are going to be made in Salt Lake City.” 

In 2019, the Australian Tax Office made a binding ruling that for an Australian charity to have deductible gift recipient (DGR) status – which allows tax write-offs for donors – it must have Australia as “the focal point of the DGR in a legal or organisational sense”. Krystian Seibert, a charities expert at Swinburne University’s Centre for Social Impact, speaking in general terms, said the DGR rule meant the operations and management decisions of a charity needed to be made from Australia. “It can, of course, engage and consult with partner organisations outside Australia, but if it effectively outsources operational and management decision-making to individuals or organisations that are outside Australia, that could raise issues under our tax laws.” 

Mormonism is a US religious movement that began in the 19th century and has become incredibly wealthy. A Washington Post investigation in 2020 revealed the church was secretly running a $US100 billion investment fund, Ensign Peak Advisors, that was accumulating vast tax-free wealth by investing in hedge funds, Chevron, Visa, Apple and some of the biggest landholdings in the US. 

Professor Cragun said the church, for a time, disclosed its charitable giving, which equated to less than 1 per cent of its revenue. “It is shocking how little they give,” he suggested. ”But on the flipside, this is the part that’s really interesting: they advertise it every single time. And that’s where the ex-Mormon in me is like, ‘That’s exactly what Jesus said not to do’.“ ... The international church, he said, was run like a multinational corporation, with practices all but identical around the world. According to Cragun, the church is likely to “milk the system for every tax deduction they can... And they’re very, very good at it”.

In another item Cragun is reported as commenting 

... Church leaders live comfortably but all this wealth - the $US100 billion investment fund, the tax minimisation - is not about personal enrichment. Rather, he suspects, it’s about long-term corporate planning. Many of its current leaders - called apostles - have backgrounds in senior positions from the corporate world and run the Church as a business, he says. 

“My sense is they know what’s coming. As far as secularisation goes, they’re losing young people in droves. They’re not really getting any converts in Australia or New Zealand, or most of Western Europe at this point. Even Eastern Europe, they’re not getting anybody, Africa, OK, they’re doing OK there. But even in South America, they’ve kind of mined that,” he says. ”My sense is they’re reading the tea leaves saying… that donating members are going to begin to shrink. How are we going to maintain all the properties that we own, all the stuff that we’re doing?“ He surmises that the “massive war chest” is designed to allow them to “just live off the revenue from that indefinitely into the future, that’s my best interpretation”.

Evidence

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4 addresses an application to take on country evidence from First Nations witnesses ... 

[4] YV and TBA propose the Court take on country evidence from four of the First Nations witnesses and conduct site inspections on Yidinji Nation (Cairns), Erub and Poruma (Torres Strait). 

[5] Site inspections are a routine feature of mining objection hearings. Taking on country evidence is not; but it is a familiar process for a court hearing native title and cultural heritage claims. 

[6] YV and TBA seek the following orders:

Group Evidence 

Athe Kapua Gutchen, Arke Florence Gutchen and Lala Gutchen are granted leave to give evidence in chief, cross-examination and re-examination together as a group. Site Inspection, On Country evidence and evidence in chief 

Evidence will be taken by the Court from Athe Kapua Gutchen, Arke Florence Gutchen, Lala Gutchen and Jiritju Fourmile at the places and on the topics specified in the Proposed Site Inspection and On-Country Evidence Plan as follows: a. Athe Kapua Gutchen on Erub (Darnley Island); b. Arke Florence Gutchen on Erub (Darnley Island) and Poruma (Coconut Island); c. Lala Gutchen on Erub (Darnley Island); d. Jiritju Fourmile in Gimuy (Cairns region). 

Athe Kapua Gutchen, Arke Florence Gutchen, Lala Gutchen and Jiritju Fourmile are permitted to give oral evidence in chief to explain the matters covered in their written statements of evidence. Their evidence in chief is in addition to, and does not replace, their written statements of evidence.

[7] Waratah opposes on country evidence as unnecessary and involving disproportionate costs. It does not wish to cross-examine the witnesses on their statements. 

[8] It opposes leave being granted for further evidence in chief, but, if that were to occur, say it could be given in Brisbane or by video conference. YV and TBA say those arrangements would be entirely inadequate. 

[9] The consequence, then, of not making the orders is that the witnesses’ evidence would be confined to their written statements. 

[10] The statutory party says on country evidence is appropriate and consistent with the Court’s function in this hearing. Mr Brinnand strongly endorsed the orders. Mr Harris, the solicitor for Mr and Mrs Brown, was concerned about the cost. If they could ask to be excused from attending, that would protect his clients’ interests. ... 

[18] The decision about arrangements for taking evidence from First Nations witnesses engages the right protected by s 28(2)(a) of the HRA: to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings. 

[19] Ms Rose deposed to the cultural practices about imparting traditional knowledge and culturally important matters: Kapua Gutchen, Lala Gutchen and Florence Gutchen explained to her that Traditional Knowledge is best spoken about on Country at the place that is being discussed. Jiritju Fourmile said that under Yidinji Lore, the Elders conduct a ceremony when evidence is given where the senior Lore man explains to the Court’s Law people how the Knowledge has and will be transmitted. Those four witnesses say that to comply with cultural protocols: (a) evidence should be given orally at the place which is being discussed given the level of cultural sensitivity and importance of the topic; (b) it is best to be discussed in the company of other members of the community who are knowledge or Lore keepers for particular topics due to the way that knowledge is held collectively; (c) it is best given in the presence of Elders; and (d) a proper explanation of particular topics cannot be done without showing or demonstrating a particular place or impact or landscape on Country and this explanation can’t be done any other way. 

[20] Further, Ms Rose deposed to a particular difficulty for Lula Gutchen giving evidence about certain matters that the parties have agreed will be redacted from her written statement. Ms Gutchen said that under Erub Customary Lore she cannot give evidence about those matters. Certain Elders are Knowledge Keepers for their land before Traditional Knowledge is transmitted. Some of them have recently passed. Ms Gutchen cannot seek permission about these matters at this time of sorry business. She would have to defer to her father Athe Kapua Gutchen, who is a Senior Elder in the Meuram tribe. She proposes to give evidence with her father, who will invite the Elders to be present to ensure an accurate account is given to the Court in accordance with Customary Lore. 

[21] Waratah says that the evidence given by Ms Rose is insufficiently specific. It does not descend to the detail of what protocol applies to what evidence. It argues Ms Gutchen must have received permission to give the written evidence that will be redacted and there is a process for her to get that permission in the future. That may be so, but that argument addresses necessity, not whether a protected right is engaged by the application. 

[22] The witnesses have described the cultural protocols they would be expected to observe in giving evidence of traditional knowledge and culture. Evidence about those matters is central to the objection their evidence relates to. Refusing the witnesses’ request would limit their ability to enjoy and maintain their cultural heritage, specifically about how traditional knowledge is imparted. If they are confined to their written statements they cannot observe those cultural protocols. 

[23] Section 13 of the HRA defines when a limitation of a protected right is lawful.  

Human rights may be limited 

(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. 

(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant – (a) the nature of the human right; (b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom; (c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose; (d) whether there are any less restrictive and reasonably available ways to achieve the purpose; (e) the importance of the purpose of the limitation; (f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right; (g) the balance between the matters mentioned in paragraphs (e) and (f). 

[24] Respectfully, I adopt Martin J’s interpretation of s 13 in Owen D’Arcy v QCS. His Honour found that section was enacted with the intention of embodying a proportionality test. He also followed the reasoning of Warren CJ in Re Application under the Major Crimes (Investigative Powers) Act 2004 in interpreting an equivalent provision in the Victorian Charter of Human Rights:

“[145] A free and democratic society is the fundamental hallmark of our system of governance and way of life. Notions of the ‘public interest’ stem from notions of what is best for a free and democratic society. I find I am assisted by the remarks of Dickson CJ in Oakes: ‘The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and fair in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.”

[25] The onus of demonstrably justifying a limitation rests with the party seeking to uphold it. The issue for the Court is balancing the competing interests of society, including the public interest. 

[26] Putting aside the question of necessity, which Waratah accepts is not the test, Waratah says the cost is disproportionate and would not assist the Court because it does not contest the witnesses’ evidence. 

[27] The nature and the purpose of the limitation would be to avoid the commitment of time and resources in taking the evidence on country. This involves some days of hearing time and expense to the parties and the Court. 

[28] Time and expense are relevant considerations. A court should be prudent in making directions about the conduct of proceedings. It has a responsibility to wisely use public resources to discharge its functions fairly and efficiently. It should not impose an unjustified burden on litigants. Declining the proposed orders would help to achieve that purpose. 

[29] Waratah estimates their costs would be in the order of $80,000, which it says is prohibitive. It is possible, as Waratah suggested, for the witnesses to give evidence on country using videoconferencing technology, but that would limit the witnesses’ ability to fully observe the ceremonial aspect of imparting traditional knowledge. 

[30] Waratah did not lead evidence of financial incapacity and it might employ a leaner legal team than routinely appears before me in Brisbane. The cost estimate made by YV and TBA is more modest and draws on their recent experience of travelling to these places to take statements from the witnesses. They have offered to assist Waratah to raise funds, a matter I leave with the parties. Importantly, they offer to take the lead on logistics and have done some advance work in organising the visits. This would reduce the inconvenience and, likely, the costs. 

[31] Turning to whether evidence taken as proposed would assist the Court, Waratah draws a distinction between this case and one involving a native title claim where the Court must make factual findings about cultural matters. Waratah does not contest the factual matters the First Nations witnesses have deposed to. It accepts they have a very strong connection with the sea and the land, and the flora and fauna. It does not dispute there will be sea level rise, that the climate will warm, that the fish may not be as plentiful, or that different aspects of the witnesses’ traditional way of life will change. 

[32] That does not mean there will be no contest about their evidence. 

[33] Evidence is led from these witnesses to establish how physical climate change impacts will affect their cultural rights. If YV and TBA establish the mine would limit the ability of First Nations peoples of Queensland to exercise their cultural rights, I will need to weigh that in the balance with other relevant factors in deciding whether the limit is reasonable and demonstrably justified. That is an evaluative, not a fact-finding process. 

[34] There is another dimension to this that Waratah did not address. 

[35] YV and TBA propose the witnesses give evidence in the presence of the people who have the collective authority to speak about matters of place and culture. Section 28 of the HRA frames these cultural rights in collective terms. It protects the rights of Aboriginal and Torres Strait Islander peoples to do specified things with other members of their community. 

[36] The High Court has long accepted the communal nature of the rights, and recently recognised as a compensable loss a group’s sense of failed responsibility, under the traditional laws and customs, to have cared for and looked after land. 

[37] The witnesses will be giving evidence about the impact climate change will have on their community’s ability to enjoy and maintain their cultural rights. The Court will be assisted in its evaluative function by seeing and hearing this evidence being given in that community. 

[38] Further, as the statutory party observed, this is a specialist Court. In my experience as a lawyer and judicial officer, written evidence from a First Nations witness is a poor substitute for oral evidence given on country and in the company of those with cultural authority. 

[39] Finally, I have been assisted by site inspections, even where factual matters are not in dispute. A site inspection can aid understanding. Importantly for an evaluative hearing, it can provide context and proportionality. 

Conclusion 

[40] To return to whether the limit is demonstrably justified in a free and democratic society, refusing the witnesses’ request to give evidence in this way orders does not respect their cultural and group identity or accommodate their beliefs. 

[41] There is utility in the evidence being given in the way YV and TBA propose. It will not impose an unreasonable and disproportionate burden on the parties or this Court. 

[42] If the orders are not made, the First Nations witnesses will be confined to their written statements. If the orders are made, they will be able to explain that evidence in the presence of those they are speaking for and Elders who can ensure the Court receives an accurate account. 

[43] The orders will ensure I receive the best evidence from the First Nations witnesses. That, and the site inspections, will assist me in discharging my administrative and evaluative function in this hearing. 

[44] In deciding this application, I have balanced the collective right to enjoy and maintain culture against the public and private interests in minimising the inconvenience and cost of litigation. Confining the First Nations witnesses to the written statements is a limit to their right, and that of their community, to maintain their culture about how they transmit traditional knowledge. I am not persuaded that limit is reasonable and demonstrably justifiable in the circumstances of this case. 

[45] The same considerations are relevant in deciding that it is in the interests of justice to make the orders sought. ...

Wishing him dead

The English Treasons Act of 1534 (26 Henry VIII, cap. 13), building on De Scandalum Magnatum -  

Forasmuch as it is most necessary, both for common policy and duty of subjects, above all things to prohibit, provide, restrain, and extinct all manner of shameful slanders, perils, or imminent danger or dangers, which might grow, happen, or rise to their sovereign lord the king, the queen, or their heirs, which when they be heard, seen or understood, cannot be but odible, and also abhorred of all those sorts that be true and loving subjects, if in any point they may do, or shall touch the king, his queen, their heirs or successors, upon which dependeth the whole unity and universal weal of this realm, without providing wherefore too great a scope of unreasonable liberty should be given to all cankered and traitorous hearts, willers and workers of the same; and also the king's loving subjects should not declare unto their sovereign lord now being, which unto them has been, and is most entirely both beloved and esteemed, their undoubted sincerity and truth. 

Be it therefore enacted by the assent and consent of our sovereign lord the king, and the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same, that if any person or persons, after the first day of February next coming, do maliciously wish, will or desire, by words or writing, or by craft imagine, invent, practise, or attempt any bodily harm to be done or committed to the king's most royal person, the queen's, or their heirs apparent, or to deprive them or any of them of their dignity, title, or name of their royal estates, or slanderously and maliciously publish and pronounce, by express writing or words, that the king our sovereign lord should be heretic, schismatic, tyrant, infidel or usurper of the crown, or rebelliously do detain, keep, or withhold from our said sovereign lord, his heirs or successors, any of his or their castles, fortresses, fortalices, or holds within this realm, or in any other the king's dominions or marches, or rebelliously detain, keep, or withhold from the king's said highness, his heirs or successors, any of his or their ships, ordnances, artillery, or other munitions or fortifications of war, and do not humbly render and give up to our said sovereign lord, his heirs or successors, or to such persons as shall be deputed by them, such castles, fortresses, fortalices, holds, ships, ordnances, artillery, and other munitions and fortifications of war, rebelliously kept or detained, within six days next after they shall be commanded by our said sovereign lord, his heirs or successors, by open proclamation under the great seal: 

That then every such person and persons so offending in any the premises, after the said first day of February, their aiders, counsellors, consenters, and abettors, being thereof lawfully convicted according to the laws and customs of this realm, shall be adjudged traitors, and that every such offence in any the premises, that shall be committed or done after the said first day of February, shall be reputed, accepted, and adjudged high treason, and the offenders therein and their aiders, consenters, counsellors, and abettors, being lawfully convicted of any such offence as is aforesaid, shall have and suffer such pains of death and other penalties, as is limited and accustomed in cases of high treason. And to the intent that all treasons should be the more dread, hated and detested to be done by any person or persons, and also because it is a great boldness and an occasion to ill-disposed persons, to adventure and embrace their malicious intents and enterprises, which all true subjects ought to study to eschew: be it therefore enacted by the authority aforesaid, that none offender in any kinds of high treasons whatsoever they be, their aiders, consenters, counsellors, nor abettors, shall be admitted to have the benefit or privilege of any manner of sanctuary, considering their matters of treasons touch so nigh both the surety of the king our sovereign lord's person, and his heirs and successors. 

And over that, be it enacted by authority aforesaid, that if any of the king's subjects, denizens or other, do commit or practise out of the limits of this realm, in any outward parts, any such offences, which by this Act are made, or heretofore have been made treason, that then such treasons, whatsoever they be, or wheresoever they shall happen so to be done or committed, shall be inquired and presented by the oaths of twelve good and lawful men, upon good and probable evidence and witness, in such shire and county of this realm, and before such persons as it shall please the king's highness to appoint by commission under his great seal, in like manner and form as treasons committed within this realm have been used to be inquired of and presented; and that upon every indictment and presentment found and made of any such treasons, and certified into the King's Bench, like process and other circumstance shall be there had and made against the offenders, as if the same treasons, so presented, had been lawfully found to he done and committed within the limits of this realm. And that all process of outlawry hereafter to be made and had within this realm against any offenders in treason, being resident or inhabited out of the limits of this realm, or in any of the parts of beyond the sea, at the time of the outlawry pronounced against them, shall be as good and as effectual in the law to all intents and purposes, as if such offenders had been resident and dwelling within this realm at the time of such process awarded, and outlawry pronounced. 

And be it further enacted by authority aforesaid, that every offender and offenders, being hereafter lawfully convicted of any manner of high treasons, by presentment, confession, verdict or process of outlawry, according to the due course and custom of the common laws of this realm, shall lose and forfeit to the king's highness, his heirs and successors, all such lands, tenements, and hereditaments, which any such offender or offenders shall have of any estate of inheritance in use or possession, by any right, title, or means, within this realm of England, or elsewhere, within any of the king's dominions, at the time of any such treason committed, or any time after; saving to every person and persons, their heirs and successors (other than the offenders in any treasons, their heirs and successors, and such person and persons as claim to any their uses), all such rights, titles, interests, possessions, leases, rents, offices, and other profits, which they shall have at the day of committing such treasons, or any time afore, in as large and ample manner as if this Act had never been had nor made.

Costs

Another judgment regarding pseudolegal claims, this time with the Qld District Court ordering the self-representred litigant to pay costs. In Schafer v Bacon [2022] QDC 60 the Court states 

 [1] Over a year ago Ms Schafer was convicted of an offence contrary to the Planning Act 2016 (Qld) s 168(5) of contravening an enforcement notice on 23 November 2019. Ms Schafer was not inclined to enter a plea at the start of the summary hearing (or, as she put it, to consent to the proceedings). Ms Schafer challenged the jurisdiction of the local authority to prosecute the complaint and summons against her, being a subject of the Queen in the UK or as a “natural-born subject”. After dealing with the jurisdictional point, the learned Magistrate correctly entered a plea of not guilty on the appellant’s behalf and appropriately advised her as to the mode of summary hearing, as she was representing herself. The evidence led in support of conviction was largely unchallenged, save repeated objections. Procedural matters were proved by evidentiary certificates. 

[2] The grounds of appeal to this court appear to also raise the jurisdictional issue and are repeated as follows:

1. Breach of Australian Constitution clause 5, sections 34, 44, 74, 76(IV), 106-109, 117, 123; and 

2. Breach of Constitution Act 1867 (Qld) (‘Queensland Constitution’) sections 1, 2, 11A, 11B, 14, 53. 

[3] In a nutshell, the complaint centred on Ms Schafer having conducted assessable development works of moving two shipping containers and connecting utilities to them, on a block of land at Ogmore (north of Rockhampton and within the boundaries of the Livingstone Shire Council), without Council approval. An enforcement notice was issued: the allegation to be proved was that she failed to comply with it. 

[4] A Notice of Appeal to a District Court Judge and a Notice of Application for Extension of Time for Filing the Notice of Appeal was filed on 23 November 2021, which was over 10 months after the hearing date. The reason for the inordinate delay is perhaps explained by Ms Schafer having brought judicial review proceedings in the Supreme Court (which was dismissed) and a dozen applications to the High Court of Australia.   

[5] Exhibit 2 to an affidavit that was sworn on 14 February 2022 (which appears to bear the appellant’s signature), is a document entitled “my cases” from the High Court of Australia. It shows the filing of Form 17 Application for Removal on nine occasions between 15 June 2021 and 10 December 2021; a Form 23 Application for Special Leave to Appeal on 15 November 2021; and a Form 31 Application for Leave to Issue or File on 21 December 2021. All were rejected. The twelfth application, which was another Form 31 Application, had been filed on 6 January 2022. Ms Schafer had not received confirmation whether it had also been rejected by the date of the hearing of this appeal on 18 February 2022. Accordingly, Ms Schafer sought and was granted an adjournment. Ms Schafer undertook to obtain further legal advice about her identified limited prospects of success, on that occasion.

[6] Following the adjournment, Ms Schafer filed further documents entitled “Statement of Claim” and “Affidavit”, which are of a similar vein and largely repetitive of the material filed originally, entitled “Affidavit” and “Outline”.

The Court states 

The filed material is largely indecipherable. The theme centres upon constitutional issues which are said to emerge following the abolition of the Upper House of the Queensland Parliament 100 years ago, and some perceived inconsistency of local government laws with the Australian Constitution, or the Queensland Constitution, or both. The filed documents otherwise contain case summaries, article extracts, a letter from Mr Culleton (Great Australian Party) to the Governor-General calling on him to stand down, and a claim of $40,000 for damages to health, $10,000 for defamation of character, plus costs.

[7]  On the resumed hearing, the respondent confirmed that on 17 February 2022, the Honourable Justice Keane AC found it would be “futile” to grant leave to issue or file the Application for Removal to the High Court. In oral submissions, the appellant appeared to confirm her argument, without clarity, or legislative or judicial support, that the Local Government Act 2009 (Qld) was inconsistent with the Australian Constitution and/or the Queensland Constitution. Ms Schafer also stated the grounds of appeal concerned the “lawfulness” of the Queensland Governor and the Governor-General of the Commonwealth of Australia.  

[8] Section 223 of the Justices Act 1886 (Qld) confirms an appeal under s 222 is by way of a rehearing of the original evidence that was given in the proceeding to which the order is appealed against. 

[9] Courts have regularly determined the basic following principles apply: it is for the appellant to demonstrate some legal, factual or discretionary error; the court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its or draw its own inferences and conclusions. 

[10] In Mbuzi v Torcetti Fraser JA said the following:

The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy at [25]; Rowe v Kemper at [5]. 

[11] Pursuant to s 225 of the Justices Act 1886 (Qld), among other things, on hearing the appeal I may either confirm, set aside, vary the appealed order or make any other order I consider just. 

[12] As to the question whether time should be extended for the filing of the appeal, in R v Tait the court said the following:

[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay. 

[13] Whilst the appellant’s conduct in bringing persistent applications in the incorrect court does not appear to be a good reason to account for the considerable delay, especially in circumstances where the respondent drew the appellant’s attention to the appropriate mode of appeal within approximately one month of the summary hearing, I consider it appropriate to make a provisional assessment about whether the appeal should succeed. Just because the appellant persisted with bringing futile applications in the wrong jurisdiction would not normally constitute good reason for delay. 

[14] On conducting a real review of the summary hearing, I discern no error. The evidence clearly supported the charge. The appellant’s evidence effectively accepted the allegation. The appellant gave evidence she owned the land, continued to live in the shipping containers and had never applied for the necessary permits to do so. The jurisdictional point was considered by the Magistrate and rejected as being without foundation. With respect, I agree with that view and otherwise with his Honour’s careful analysis of the evidence and the making of findings of fact which led to the guilty verdict. 

[15] Ms Schafer has failed to demonstrate there is any relevance between the provisions of the Australian Constitution and the Queensland Constitution and the case under review. The appellant seems to have simply randomly picked some provisions of the Australian Constitution and the Queensland Constitution which have absolutely nothing to do with this case. Above a mere assertion that the appeal should again be removed from the District Court of Queensland and uplifted to the High Court of Australia, there is nothing to confirm the case involves a matter which arises under the purview of the Australian Constitution, as it must do so to enliven the operation of those provisions. 

[16] No doubt, that informs the many rejected applications to the High Court of Australia in this matter already. Also, as counsel for the respondent otherwise correctly points out:

(i) The Magistrate considered and property rejected the jurisdictional issue, which is confirmed by legislation; 

(ii) The Queensland Parliament is constitutional; 

(iii) No conflict arises – Australian Constitution s 109 has no operation; 

(iv) The role of the Governor or Governor-General is irrelevant; and 

(v) The Court is required to take judicial notice of legislation. 

[17] I have concluded the appeal does not enjoy a viable prospect of success. The appeal is incompetent. The appellant has failed to demonstrate the existence of some legal, factual or discretionary error. There is no reason to conclude the Magistrates Court lacked jurisdiction to determine the valid complaint. 

[18] The appellant has not demonstrated there is any good reason to explain the delay. The application for extension of time is refused. The appeal must be dismissed. 

[19] As to costs, in Oshlack v Richmond River Council the High Court said the following about the discretion to award costs: Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for costs of the unsuccessful litigation. 

[20] The appellant’s proceedings were doomed to fail. Nonetheless, the respondent was put to the expense of meeting, or attempting to meet, the appellant’s case. In the exercise of discretion, I consider it appropriate to order the appellant pay the respondent’s costs, on the standard basis.

Cybercrime

'Crime in the Age of the Smart Machine: A Zuboffian Approach to Computers and Crime' by Kevin F. Steinmetz in (2022) 11(1) International Journal for Crime, Justice and Social Democracy 225-238 comments 

This analysis ruminates on the quintessential qualities that underpin the relationship between computers and crimeby drawing from the foundational work of Shoshana Zuboff, a scholar whose work has to date been largely ignored in the study of crime. From this perspective, computers are best described as “informating” machines that require “intellective skills” in both licit and illicit forms of work. The first part of this analysis describes the role of such skills in the commission of computer-related crimes and considers factors that affect the degree to which such skills are necessary for perpetration. The second part considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiries, including learning and subculture, the emotional experience of crime, and perceptions held by offenders and victims.

 Steinmetz argues

Over the past half a century, computers have become a fixture of everyday life. An increasing share of the workforce regularly uses computers for their jobs, many people in developed countries carry smartphones everywhere, and internet use has become a necessity for social and civil life (Pew Research Center 2019). Likewise, crimes mediated through or targetingcomputers have similarly proliferated (Furnell 2017). Scholars have made significant strides during this period to understand the new topography of crime introduced by computers and networking technologies (e.g., Holt and Bossler 2014; Powell, Stratton, and Cameron 2018; Wall 2007; Yar and Steinmetz 2019). Among other changes, research has found that computer technologies have significantly affected the scope and scale of crimes, reshaped the social relationships involved in crime commissions, rearranged the political economy of crimes and control, and introduced new challenges for law enforcement and security regarding criminal detection, prevention, and investigation. 

Criminologists have utilized a diverse assortment of approaches to dissect the complexities that computers have introduced to criminal enterprises. For instance, some criminologists have chosen to adapt standard criminological theories (e.g., routine activities theory, social learning theory, and self-control theory) for computer-related crimes (Yar and Steinmetz 2019). Others have forged novel approaches tailored for digital contexts like extension theory (Brey 2017), actor–network theory (Brown 2006; Latour 2005; van der Wagen 2018; van der Wagen and Pieters 2015), digital drift (Goldsmith and Brewer 2015), and digital criminology (Powell, Stratton, and Cameron 2018). The breadth and depth of theorizing and scholarship to date in the area have been laudable. Amidst such advances, however, it is worth pausing to ruminate on the quintessentialqualities that underpin the relationship between computers and crime—qualities from which all other considerations of such crimes proceed. Such an endeavor can provide a unifying and parsimonious base to ground computer crime scholarship and theorizing. 

This analysis applies Shoshana Zuboff’s (1988) treatise on computer technologies and work, In the Age of the Smart Machine: The Future of Work and Power (Smart Machine), to accomplish this task.While widely influential in the fields of science and technology studies, Smart Machine has been largely ignored by criminologists. In this work, Zuboff (1988) examined multiple worksites during a historical period of significant industrial changes as computers, then new and novel devices, were increasingly integrated into the workplace. She considered the effects of computers on the experience of labor, the skills required to accomplish occupational tasks, the structure of the workforce within an organization, and the role of authority in the workplace. While her study was detailed and thorough, two foundational concepts comprised the fulcrum of her analysis. The first concerned the characteristic that, according to her, distinguishes computers from other machines—they “informate.” In addition to automating tasks, computers process data and provide textual feedback to the user. Thus, computers mediate work, adding a layer of abstraction to the labor process. Second, “intellective skills” or abstract reasoning and processing skills are necessary to conduct informated work. As her analysis revealed, these deceptively simple concepts bear significant implications for the nature of work in a computerized era. 

This analysis argues that the same concepts that Zuboff (1988) applied to the transformation of legitimate work are equally applicable to illegitimate forms of labor. Just as Zuboff (1988: 13) discarded the “natural attitude” that takes for granted the role of computers in work and everyday life, this analysis requires taking on an “attitude of strangeness” to examine the subtle yet profound ways that computers affect the relationship between criminals and their crimes—to reconsider the very notion of what computers do to crime (Neuman 2007: 284). Additionally, the application of Smart Machine to the study of crimes necessitates a willingness to view crime itself as a kind of work. Letkemann (1973: 6) noted decades ago that the “various dimensions of work appear to be as applicable ... to the illegitimate as the legitimate worker.” In other words, crime is a form of labor, criminals are laborers, and both can be understood in terms like those applied to legitimate enterprises (Fagan and Freeman 1999; Letkemann 1973; Steinmetz 2016; Sutherland 1937). Just as information technologies fundamentally reconfigured legitimate work, similar changes are evident as crime is computerized (Wall 2007: 42-44). 

The current analysis builds from Zuboff’s (1988) conceptual work to reframe the issues of computer crime and criminality in two parts. Part 1 elaborates on the concepts of informating and intellective skills. It also describes their immediate application for understanding the relationship between computers and crime. Regarding informating, this analysis contends that criminologists should consider examining computer crimes not as a distinct type of crime but simply variants of preexisting forms of crime shaped by thedegreeto which they are informated or reliant on computers. For intellective skills, this essay traces the transition of these skills from “action-centered” skills and the criminological implications of such changes. Further, it argues that though intellective skills are important for computerized work, not all tasks are equally dependent on computers, nor are all criminals equally willing to utilize such technologies. As such, the factors that affect the extent to which intellective skills are required in crime commissions are considered, including centrality, availability, and engagement. 

Part 2 of this analysis considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiry. It begins by considering the role of information technology and intellective skills for knowledge transmission, addressing criminological concerns like social learning and subcultures. Further, Zuboff’s (1988) insights are applied to the emotional experience of crime, a domain of longstanding fascination for criminologists. Finally, the implications of the distance between what Zuboff (1988: 84) described as a “symbol and reality” for perceptions held by both criminals and their victims are explored. These dynamics are considered in turn.