'Executive Oversight of Intelligence Agencies in Australia' by Kieran Hardy and George Williams in ZK Goldman and SJ Rascoff (eds),
Global Intelligence Oversight: Governing Security in the Twenty‐First Century (2016)
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When it comes to government accountability, intelligence agencies present a special case. Ordinarily, government departments are subject to robust scrutiny from a variety of sources. The classification of national security information and exemptions from freedom of information (FOI) legislation mean that media and public scrutiny of intelligence agencies can be superficial at best. The fact that public, judicial, and parliamentary scrutiny of Australia’s intelligence agencies is severely constrained means that the executive branch takes on a particularly important role in holding these agencies to account. The key conceptual and practical problem with executive oversight of intelligence agencies is that the relevant accountability mechanisms — including statutory officeholders, royal commissions, and administrative tribunals — are part of the same arm of government to which the intelligence agencies belong. Executive oversight mechanisms therefore play an important but also potentially problematic role in keeping intelligence agencies accountable.
Given this, the aim of this chapter is to assess whether executive oversight of the Australian intelligence agencies is robust, stringent, and effective. It considers whether there are any gaps or vulnerabilities in this system of executive accountability, and whether stronger powers or other improvements are needed to further counterbalance the limited public, judicial, and parliamentary scrutiny of intelligence agencies.
Meanwhile yet another judgment involving Peter Markan, who as noted elsewhere in this blog is an exponent of the sort of pseudo legal claims favoured by sovereign citizens.
In Markan v Bar Association of Queensland [2015] QCA 128 McMurdo P states
[1] The appellant, Peter Markan has appealed from the primary judge’s orders made on 15 September 2014 giving the respondent, the Bar Association of Queensland, leave under s 5 Vexatious Proceedings Act 2005 (Qld) to apply to the court for a vexatious proceedings order against him; declaring that he is a person who has frequently instituted or conducted vexatious proceedings in Australia within the meaning of s 6 of that Act; staying his proceeding in the trial division, BS2980/14, under s 6(2)(a) of that Act; under s 6(2)(b) of that Act, prohibiting him from instituting proceedings in any Queensland court, apart from an appeal from these orders; dismissing his applications filed on 26 May 2014; and that he pay the Bar Association’s costs assessed on the indemnity basis.
[2] Mr Markan has appealed against those orders on the following grounds:
“a.The subject of my application to this Court relates to the issues of:
the lack of respect for human rights in Queensland;
racist attitude, discrimination and vilification of people who are not lawyers and not of anglo origin and who represent themselves in courts;
denial of the protection by law to such people;
treatment of such people by ‘public institutions’ and courts as SECOND CLASS CITIZENS;
creating of TOTALITARIAN REGIME consisting of lawyers who, through stooges infected various democratic institutions and courts, are controlling Australian society as a self-professed ‘master breed’;
enacting of concealed dictatorship when an opinion of an unelected individual is claimed to be binding to 22 million free people in Australia
(those so called ‘authorities’ in legal proceedings),
b. Alan Wilson, as the ‘judge' employed by Supreme Court of Queensland, failed to recognize and acknowledge that the Australian Constitution is the primary law,
c. Alan Wilson, as the ‘judge’ employed by Supreme Court of Queensland, failed to provide me the protection as guaranteed to me by articles 109 and 117 of the Australian Constitution,
d. Alan Wilson, as the ‘judge’ employed by Supreme Court of Queensland, failed to recognize and acknowledge valid laws as per ‘Imperial Acts Application Act 1984’
e. Alan Wilson, as the ‘judge’ employed by Supreme Court of Queensland, failed to recognize and acknowledge the fact that Queensland and Australia are not on the moon but are a part of the International Community, therefore subjected to laws governing that community,
f. Alan Wilson, as the ‘judge’ employed by Supreme Court of Queensland, failed to recognize and acknowledge the fact that Australia (in geographical sense) has been populated by Aboriginal communities and has been subjected to their laws, before it was ‘acknowledged’ by HC decision in 1992, and those laws have NEVER been repealed,
g. Alan Wilson, as the ‘judge’ employed by Supreme Court of Queensland, displayed lack of knowledge of basic legal principles existing in the system in which he professes to have the role of supreme guru,
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- Eg.he accepted BAQ lawyers making application without them first obtaining the leave of court to make such application (amended application, 22 July 2014, point 2A)
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- Eg.he provided BAQ lawyers preferential treatment by allowing them not to comply with the provisions of rules 444 and 447 of UCPR1999 which was unfair and prejudicial to me,
h. Alan Wilson’s conduct highlights serious problems with the administration of justice in Queensland:
- Judiciary is the hub of racism – maintaining ‘colonial mentality’ through subtly disguised arrangements, reflected in attitudes and conduct, and resulting in the abuse and discrimination of people from non anglo background,
- Judiciary is the primary tool of hegemony of one ethnic group of people (‘anglos’) over other subjugated citizens of the State of non anglo background,
- Judges are given so called ‘immunity’ permitting them to say any rubbish they choose without having legal responsibility for what they say,
- Due to ‘immunity’ judges openly and blatantly abuse human rights without fear of punishment,
- There is no effective community supervision of selection of judges, judicial conduct and their decisions,
- The feudal concepts of ‘masters’ and ‘slaves’ are maintained to enable protection of depravity within legal industry,
i. Alan Wilson failed to comply with the provisions of the law and he is involved in the abuse of the Australian Constitution, Queensland laws, The International Covenant on Civil and Political Rights and other internationally recognized legal standards.
He did not express any feeling of guilt or remorse.
j. Alan Wilson is involved in improper exercise of power, in the abuse of judicial discretion which has been exercised arbitrarily and capriciously and in bad faith. The abuse resulted in a manifest injustice.
k. Alan Wilson, through his conduct of disrespect for laws, lost his right to expect other people to obey the laws
l.Alan Wilson’s authoritarian conduct brings the administration of justice in Queensland into disrepute and has impact on the issue of integrity and respect for the law affecting the Queensland legal system as a whole.”
[3] He seeks orders that the orders of the primary judge be “null and void – not having any legal consequences, the verdict set aside and the ordering a new hearing” and asks for “a truly independent and competent arbiter, conforming to internationally recognized standards, to preside over the court hearing against the Bar Association of Queensland.”
The primary judge’s decision
[4] Before discussing Mr Markan’s contentions, I will summarise the primary judge’s reasons. His Honour carefully and accurately analysed the history of Mr Markan’s litigation in the Supreme Court of Queensland since 2009 and his contentions in that litigation. In essence, the history of that litigation is as follows.
[5] Mr Markan considered he was wrongly convicted in 2008 of grievous bodily harm. He was sentenced to four years imprisonment. He was self-represented at trial but legally represented on his appeal to this Court which was dismissed. He was represented by different lawyers in his unsuccessful High Court appeal.
[6] He next complained to the Legal Services Commission about the conduct of his solicitors and barristers in those appeals. The Legal Services Commissioner referred his complaints about the barristers to the Bar Association for investigation, report and recommendation. In April 2012 the Bar Association delivered reports to the Commissioner which concluded that no barrister in either appeal was guilty of misconduct.
[7] Mr Markan then sued the Bar Association for $10 million in damages for breach of contract. The trial division judge who heard the case refused Mr Markan’s application to recuse and struck out his claim. His appeal and his application to stay that judgment were dismissed by this Court. His application for special leave to appeal to the High Court of Australia was also dismissed.
[8] He commenced a second action against the Bar Association this time seeking $11 million in damages. The Bar Association once more applied to strike out Mr Markan’s claim and statement of claim. A different trial division judge refused Mr Markan’s application to recuse and again struck out his claim and statement of claim. The appeal from that decision was also unsuccessful. So too was his application for special leave to appeal to the High Court of Australia.
[9] In the meantime Mr Markan unsuccessfully applied for judicial review of the Legal Services Commission’s handling of his complaint against his barristers in his original criminal appeals.
[10] He then brought an action against the Crime and Misconduct Commission (CMC) for $10,000.000.13 in damages. The CMC successfully applied for judgment in its favour, a decision upheld on appeal. His application for special leave to appeal to the High Court of Australia was refused.]
[11] Mr Markan next wrote to the Commissioner of Police calling for the arrest of the three judges who constituted this Court in Markan v Crime and Misconduct Commission. When the Commissioner did not accede to that request, Mr Markan sued the Queensland Police Service (QPS) for $10,000,000.13 and applied to freeze QPS’s bank accounts and assets.
[12] Mr Markan commenced yet another action against the Bar Association of Queensland, this time seeking $10,000,000.13 in damages. The Bar Association applied to strike out this action before the primary judge and applied for orders concerning Mr Markan under the Vexatious Proceedings Act.
[13] The primary judge, after analysing Mr Markan’s arguments in his past litigation and in the present case, concluded that his contentions were entirely without merit.
The New Zealand High Court in Hill v Maori Trustee [2016] NZHC 364 has considered another pseudo-legal claim, this time originating as a lease dispute in which Hill accepted that he had not paid the rent due under the lease since 2009 but in the course of the litigation presented the Trustee with a claim for NZ$3m:
$1.5 million for the costs he claimed for appearances at the District Court in November 2014, and a further
$1.5 million for alleged violation of his personal property, namely a campervan on the property that had apparently been entered by a bailiff to serve notices in the proceeding on 8 October 2014.
The judgment states
[13] On 15 July 2015 Mr Hill filed a memorandum that included an application to adduce further evidence in support of his appeal. The matters he indicated he wanted to address in further evidence included directions made by the District Court in September 2013, the invoices he had issued for improvements to the land, together with photographic records of that work, a further invoice to be paid as damages, and witness summonses that he contemplated for the Attorney-General, the Governor of the Reserve Bank, the Secretary of the Treasury and others. The application also foreshadowed evidence about his own status, purportedly to distinguish him “in propria persona” from him as “the straw man”.
...
[17] Mr Hill made liberal reference to the 34 pages of text in his latest affidavit in the course of his discursive arguments. The majority of its content was not new so it did not strictly qualify for a grant of leave for it to be adduced. Further, the presentation of the affidavit, consistently with other documents filed by Mr Hill, included inappropriate content such as stating his name completely in capitals, followed by the sign used for claiming copyright, and purporting in its text to draw distinctions between a legal personality artificially joined to his birth certificate, and a second persona as “the straw man”. Both affidavits contained misconceived assertions as to matters of law that are inappropriate in affidavits, which should be confined to relevant factual matters. In other circumstances, the Court would be entitled to direct the removal of such non-complying documents. Some elements of Mr Hill’s affidavits suggest a vexatious or frivolous approach to the court proceeding, and the Court might well be justified in rejecting them.
[18] However, given the nature of Mr Hill’s reliance in resorting to the latest affidavit to clarify matters that he endeavoured to advance in oral argument, I am prepared to have regard to its content in assessing Mr Hill’s arguments in support of his appeal including his challenges in the nature of judicial review. This is not to be treated as any precedent for the admissibility of documents of its type.
[19] At an advanced stage of Mr Hill’s submissions, having been given conditional permission to refer to his latest affidavit on the terms described above, he
indicated his wish to go into the witness box and give viva voce evidence. He had not provided any specific notice of his intention to seek this further indulgence and was not specific as to the additional factual matters he intended to address. At one point, Mr Hill indicated that most of what he wanted to address was in the affidavit, but that he wanted the opportunity to draw out some nuances that might not otherwise be fully appreciated.
[20] I was not prepared to grant any further indulgence to Mr Hill in circumstances where there was no accurate indication of the content of the evidence he contemplated, and therefore no ability to assess whether leave ought to be granted for it to be adduced.
Process criticisms
[21] The criticisms of the process adopted by the District Court Judge can adequately be considered under the following headings:
• The Judge should have recognised this as a “case of doubt” as to the status in which Mr Hill was participating, which therefore required directions under the then District Court rule that provided for the making of directions in cases of doubt. This argument depended on Mr Hill’s proposition that he could assert a distinct legal personality for purposes such as responding to civil court proceedings.
• The Judge was wrong to direct hearing by simplified trial because of the complexity of the issues Mr Hill raised in response.
• Mr Hill’s specific consent to the matter progressing was conditional on compliance with his request for a jury trial.
• Mr Hill was afforded inadequate time to prepare and present evidence on his counterclaim.
• The uncertainty over the date for hearing precluded his requiring the attendance as witnesses of the Attorney-General and others, including the Governor of the Reserve Bank.
[22] In relation to these process criticisms, Mr Hill did not address the nature of error that he was required to make out. He made general assertions that the District Court Judge had conducted the proceedings “unlawfully”. In assessing his range of arguments which did not differentiate between grounds for judicial review and appeal, I have considered whether the Judge acted unlawfully, or whether he made errors within jurisdiction that may have given rise to a risk of a miscarriage of justice.
Not recognising a “case of doubt” requiring directions
[23] This criticism relied on the proposition that Mr Hill has two distinct personalities for the purposes of legal proceedings. This assertion was also prominent in Mr Hill’s arguments on the substantive errors made by the Judge, and I address it in more detail in dealing with those criticisms below. In terms of the procedure adopted, Mr Hill argued that once he had raised the prospect of doubt as to the capacity in which he was participating, the Judge was required to consider making directions (presumably as a preliminary issue) as to the appropriate identity to attribute to him. ....
[25] For reasons I address below, there is no tenable prospect of Mr Hill maintaining the existence of two distinct personalities for the purposes of his participation in these proceedings. His initial premise that this was a “case of doubt” is therefore wrong.
[26] Mr Hill has misconceived the scope and purpose of what was r 1.11. The rule created jurisdiction for a party to proceedings to apply for directions, without notice to other parties to that proceeding, if a doubt arose as to the appropriateness of joining another party, or the proper court in which to take a step in the proceeding, or any other matters of procedure under those rules. The Māori Trustee might have resorted to an application under the rules if, for example, there was some doubt whether the property was treated by the Court as closer to Palmerston North than, say, Levin. There could be no prospect of the Court taking an initiative to clarify Mr Hill’s assertion of discrete legal personalities. If Mr Hill wished to raise the argument, it was not one that the Court need respond to by providing directions under the then r 1.11. ...
Any consent to the process was conditional on trial by jury
[30] Mr Hill’s initial proposition on this criticism was that his agreement with the procedure being proposed was subject to the stipulation that trial be before a jury. He argued that he should not have been taken to have consented, once his proposal for trial by jury was rejected. When the point was made to Mr Hill that there is no entitlement for a jury trial for civil matters in the District Court, his alternative argument was to criticise the Judge for not advising him that he could apply to have the case transferred to the High Court where he could assert an entitlement to a jury trial.
[31] This argument is misconceived. First, it was not for the Judge to advise Mr Hill on how he might pursue a jury trial. It would have been for Mr Hill to make an application under r 43 of the District Court Rules for transfer of the proceeding to the High Court.
[32] Second, even if transfer had been a prospect, the Court would be most unlikely to allow it to proceed as a jury trial in the High Court. Civil jury trials are
very rare, and in practice are confined to defamation proceedings. It is highly unlikely that a jury trial in this matter would have been:4
... the method of trial best suited effectively and speedily to dispose of the issues in the case, considering the interests of the parties, of the Court and the jury whose time is occupied, and the general interests of the administration of justice.
[33] In any case, the question is not whether the High Court would have allowed Mr Hill a jury trial had the proceedings been transferred. The reality is that the dispute was determined in the correct forum, and no error can be made out of Mr Hill’s complaint that he was denied trial by jury.
Inadequate time for Mr Hill’s counterclaim
[34] Mr Hill raised concerns that the hearing allocated for November 2014 was inconvenient because it clashed with his university exam commitments, and that advice of the hearing dates in October 2014 gave him inadequate time to prepare his defence and his counterclaim. The proceeding was reasonably perceived by the District Court as a contested debt recovery and application for cancellation of a lease. It had been progressed very slowly over three years, with numerous delays caused by interlocutory initiatives taken by Mr Hill. Given the history of the proceeding, the Court was entitled to be wary of further delaying tactics, and the directions as to the hearing was a reasonable step for Judge Ross to take.
[35] So far as the counterclaim was concerned, the Judge afforded Mr Hill a further 28 days to assemble and present evidence. In the context of a case of this scale that raised the issues that were involved, I am not persuaded that there was any error, or indeed a risk of a miscarriage of justice, in the timetabling of the hearing.
[36] A separate component of this criticism was that it was wrong for the Court to allocate only a single day for the hearing, which unnecessarily rushed Mr Hill’s contribution to the evidence and argument. Similarly, I am not persuaded that the limited resource of court time required the District Court to allocate longer than it
did. On the hearing of Mr Hill’s appeal, I allowed him to make all the submissions that he wished to, which left me with the clear impression that the legitimate issues raised on the claim and counterclaim ought to have been capable of determination within a single court day.
Absence of specific hearing date precluded Mr Hill from summonsing Attorney- General and others
[37] In the minute issued on 1 October 2014, Judge Ross set the matter down for a back-up fixture on 5 or 6 November 2014, with an alternative date of 7 November
2014 being provisionally available. Mr Hill complains that the uncertainty about the date prevented him serving witness summonses on the Attorney-General, the Governor of the Reserve Bank, the Secretary of the Treasury and others. That argument overlooks the prospect of successful challenges to the summonses, if they were lawfully able to be served on the Attorney-General and others. Given the matters which Mr Hill would have questioned such witnesses about, there must be a real issue that he would not have obtained leave to issue summonses to compel attendance by such proposed witnesses in any event. If he had, then uncertainty over the date would not be a compelling excuse for not attending, were the witnesses otherwise lawfully compellable.
[38] Further, even if their attendance and evidence could be compelled, I am satisfied that they would not have assisted Mr Hill in the range of arguments he had intended to raise, and which were fully aired during his arguments on appeal.
[39] Accordingly, irrespective of the standard by which these various criticisms are assessed, I am satisfied that no error of process or jurisdiction by the District Court can been made out.
Substantive criticisms
[40] Mr Hill made wide-ranging criticisms of the District Court decision, which raised the following points:
The Judge wrongly failed to recognise his dual personalities, which should have enabled the personality sued to avoid liability under the
lease, and alternatively gave rise to a sufficient counterclaim to offset the money claim made.
• The lease was not enforceable because its execution on behalf of the
Māori Trustee had not been witnessed.
• The Māori Trustee owed Mr Hill fiduciary obligations which it breached by not making full disclosure of how gorse-prone the property was.
• Mr Hill was induced to enter the lease by a misrepresentation as to the state of the property.
• The lease should not be enforced because the Māori Trustee refused numerous offers to arbitrate or mediate the differences; alternatively the lease should not be enforced because it was in an archaic form that was not suited to the bargain Mr Hill thought he had made.
• The amount claimed by the Māori Trustee was overstated because it could not add commission, but rather had to deduct any commission out of the rent payable under the lease. Further, the Māori Trustee was not liable for local body rates if it was not receiving rent for a property, therefore there was no liability for rates once he stopped paying rent.
• The claim should not be enforced because of Mr Hill’s counterclaim for expenditure on the property.
The Court failed to acknowledge Mr Hill’s two distinct personalities
[41] Mr Hill argued that in addition to his status as a natural person, he had a separate legal personality derived from the issue by the Department of Internal Affairs of a birth certificate in his name. By some unexplained means, the issue of a birth certificate once his birth had been registered by his parents gave rise to a separate legal identity. Arguably, the Crown used the identity created by the issue of birth certificates as an asset when undertaking Crown borrowings. Because of the use that was made of the birth certificate, he argued that the Crown has to assume
trust obligations in respect of all benefits obtained by its reliance on the asset represented by birth certificates.
[42] Mr Hill argued that his separate legal personality evidenced by his birth certificate gave him status as a cestui que trust entitled to certain undefined benefits arising from the Crown’s use of the birth certificate. There was a measure of confusion in Mr Hill’s use of the term cestui que trust. At times he appeared to be using it to refer to the form of obligation imposed on the Crown, and at other times to describe his own position as a person entitled to benefits owed to him by the Crown. In modern trust law, “beneficiary” is an adequate and more appropriate synonym. At various points in his argument, Mr Hill accepted that the same obligations would be owed by the Crown to all New Zealanders for whom a birth certificate is issued. In response to my enquiry as to whether the trust he described had a settlor and, if so, who, he responded that his parents were the settlors of the trust.
[43] There is an obvious and fundamental flaw in Mr Hill’s sequence of unsubstantiated and illogical propositions. If any duty was owed by the Crown as a consequence of the statutory responsibility to issue birth certificates, then any obligation of the Crown would be entirely distinct from obligations owed by Mr Hill to the Māori Trustee. A claim against the Crown could therefore not be set off against Mr Hill’s liability to the Māori Trustee.
...
[45] At the risk of casting Mr Hill’s arguments in terms that suggest some shred of tenability, it is appropriate to debunk the more important of the sequence of
propositions that he advanced on the dual personality/entitlement as cestui que trust arguments.
[46] It is nonsense that the Crown treats birth certificates issued under the Births, Deaths, Marriages and Relationships Registration Act 1995 as a form of bond providing security for Crown borrowings. Certainly, one of the purposes in s 1A of that Act requires the provision of:
... an official record of births, deaths, marriages, civil unions, and name changes that can be used as evidence of those events and of age, identity, descent, whakapapa, and New Zealand citizenship;
[47] However, it is in the fanciful world of conspiracy theorists that the control by a government agency of the register is utilised by Treasury as evidence of assets that are offered as security for Crown borrowings. I can take judicial notice of the fact that rating agencies and lenders to the New Zealand Government may take into account a wide range of information possibly relevant to an assessment of risk in the New Zealand Government’s ability to meet its borrowing obligations. However, that in no circumstances would such assessments extend to details of birth certificates issued by the Department of Internal Affairs.
[48] The lack of any prospect that this proposition could be made out is also relevant in answering Mr Hill’s process criticism that he was inhibited in attempts to procure evidence from the Attorney-General, the Governor of the Reserve Bank and the Secretary of the Treasury. There would be compelling grounds to deny an application for the issue of a witness summons to the Attorney-General and those officials, where the matters sought to be put to them were their alleged participation in such a fanciful activity.
[49] One extremely confused component of Mr Hill’s arguments about his having two personalities was (as best I could understand it) that the Court had to exercise its admiralty jurisdiction to enforce a debt against him, and that he was not subject to the admiralty jurisdiction because he could establish that he was born on land. I sense he misapplied archaic concepts of admiralty law being the forum in which the Court operated against “the res”, the suggestion that birthing certification was a reflection of where a vessel would berth, and that the Court’s jurisdiction could only
be exercised against a res by consent of that res. One reason why Mr Hill wished to go into the witness box was to confirm that he had indeed been born on the land and not at sea. This spurious point could not be relevant, and I did not understand the Māori Trustee contested his place of birth in any event.
[50] The reality is that Mr Hill has only one capacity for the purposes of appearing as a defendant to a District Court civil claim brought against him. It is the same capacity as that in which he signed the lease, and the capacity in which he has defaulted on the contractual obligations he assumed. Enforcement of orders made in personam operate against him and any of his assets that may be sought in subsequent processes to execute the judgment against him. References to the admiralty jurisdiction are utterly irrelevant.
[51] Mr Hill purported to support many of his propositions by reference to archaic English statutes, several of which were mis-cited in any event. He offered no current legal authorities or principles to support the various arguments advanced, nor did he acknowledge any source of advice for those arguments. However, they bore the hallmarks of the same arguments that have been raised in New Zealand and in other common law jurisdictions in recent years, in attempts to avoid debt enforcement. Regrettably, the ideas for such fallacious arguments are available on pseudo-legal websites that hold out unrealistic prospects for debtors to avoid liability for indebtedness they have lawfully incurred. Resort to such stratagems by the gullible and the desperate is doubly regrettable as the outcome can only be a deterioration in their own position, by increasing the extent of the indebtedness by what are likely to
be substantial awards of costs, and on-going interest charges.
The judgment refers to the 'Canadian authority Meads v Meads 2012 ABQB 571, the subject of a case note in [2013] NZLJ 47; Ward v ANZ National Bank Ltd [2012] NZHC 2347; Hannah v Police [2012] NZHC 218 and France v Police [2014] NZHC 1656' regarding the regrettable stategies of the desperate and gullible.
