Waisman

'Friedrich Waismann and the Distinctive Logic of Legal Language' by Frederick Schauer, written as a keynote address for a University of Vienna/Vienna Circle conference on Friedrich Waismann’s Legacy and Presence, comments

 Although Waismann’s contributions to legal theory are best known through H.L.A. Hart’s use of Waismann’s idea of open texture, many of Waismann’s writings also offer the suggestion that different linguistic domains have their own distinctive grammars and structures in addition to their own semantics. In “Language Strata,” in “Analytic-Synthetic,” in “The Linguistic Technique,” and elsewhere, Waismann thus gave us some of the resources to consider the extent, if at all, that legal language should be understood as a technical language with domain-specific structure, including a structure of meaning that emerges out of law’s own goals and methods. More particularly, the paper explores the possibility that law’s pervasive (even if not strictly necessary) defeasibility infuses the meaning not only of specific legal words, but of all of legal language.

Time Travel

With imminent release of the special 'Zombies issue of Canberra Law Review in mind it is interesting to see 'The Law of Time Travel' by Akiva Miller, who comments

Even as time machines remain as fictional as ever, time-travel stories hold important lessons for legal reasoning. Starting from the ancient paradigms of prophecy, the article explores the key features of the genre. Considering four key time-travel themes — the self-fulfilling prophecy, predictive policing, evil time-travelers, and getting one shot to undo a fateful moment — the article discusses how time-travel movies express subtle (and not-so-subtle) critiques of cornerstone legal concepts such as mens rea, culpability, obedience to law and individual freedom, regulation of information asymmetries, and negligence. Through this analysis, the article aims to introduce time-travel movies into the broader field of law and film studies.

Miller states

Engaging with the law starts with imagining hypothetical situations: what would I have done if I we’re in the defendant’s shoes? What will I do if the other guy doesn’t keep to the contract? What will government officials do if I do this or that? We learn and teach the law through stories—cases—of real disputes and the judgements that followed them, and we calculate our interactions with government bodies and each other by tracing the law’s blueprint to help us anticipate their possible reactions to our actions. It is no surprise, therefore, that fiction and storytelling play such an important role for honing our ideas of laws and morality. 

If all stories are thought experiments, then time travel stories choose especially good laboratory conditions. In the real world, the messy connections between knowledge, action, and outcome are hard to untangle. Time travel stories are like the frictionless universe of the theoretical physicist. Instead of uncertainty, the hero is given perfect foresight of a future course of events. The hero can then play with the variables, choosing a point on the space-time continuum to tinker with the trajectory of causes and effects. The hero’s success or failure brings into focus other determinants of our lives’ stories, such as fate, luck, morality, weakness, and folly. 

Time travel stories1 are especially well suited for examining questions of moral choices and the pursuit of justice. Real-life judgment is invariably distorted by hindsight; the answer to the question “what should I do” is always different from the answer to “what should I have done”. The genre’s pattern is familiar: looking at the devastations of crime and calamity, a fictional hero is driven by a moral impulse to set things right, and is given a chance to do something about it. But even with 20/20 hindsight, it is not easy to do the right thing the second time around. Obstacles abound, and results are not guaranteed. In this way, stories of time-travelling heroes illuminate the factors that stymie and blind us from taking moral action and achieving justice.

Spillovers and Patent Rationales

The Office of the Chief Economist at the national Department of Industry, Innovation and Science has released a research paper on The role of spillovers in research and development expenditure in Australian industries.

The paper, by Sasan Bakhtiari and Robert Breunig, uses administrative data from firms in Australia that conduct research and development (R and D) in an examination of how R and D activity of other firms and public institutions affect a firm’s own R and D expenditure.

The authors state

We distinguish between the impact of peers, suppliers and clients. We examine whether geographical proximity and industrial clustering affect R and D spillovers. Overall, we detect positive effects on R and D expenditure from spillovers from peers and clients to firms that are nearby; within 25 or 50 km. R and D expenditure by academia, unlike by government bodies, has a positive influence on a firm’s own R and D expenditure within state boundaries. We fail to find any significant role for industrial clusters in augmenting spillover effects.

They comment

Research and development play a central role in long-run productivity and economic growth. Theory suggests that R and D spillovers (where the R and D activity of a firm affects the well-being of consumers or the profitability of other firms) also play an important role in economic growth and that the benefits of R and D extend well beyond the firm that makes the R and D investment. Thus, the social returns to R and D as a whole may be greater than the sum of the private returns to firms who make R and D investment decisions. The existence of R and D spillovers may also increase the incentive for firms to invest in R and D if other firms’ R and D is complementary — that is if it makes a firm’s own R and D more productive. This could happen if spillovers from other firms make a firm’s R and D more likely to succeed or if knowledge from other firms’ R and D combines with an individual firm’s R and D to increase the returns to a firm’s own R and D expenditure.

However, the existence of R and D spillovers also has the potential to disincentivise firms from investing in R and D. The partially public nature of knowledge and competition in markets reduces the firm’s ability to appropriate rents from their innovative activities. This may lead firms to reduce their R and D expenditure. A priori, it is not known whether the positive or negative effects of spillovers on firm-level R and D expenditure will dominate.

Recognising the latter possibility, governments around the world offer a range of incentives such as patents and licenses (that grant a temporary monopoly to the inventor) or R and D grants and subsidies. These measures compensate for the lack of incentive for firms to invest in R and D.

In this paper we focus on the R and D expenditure decisions of individual firms and how they are affected by the R and D activity of other firms. We find that overall, the negative disincentives dominate. The presence of spillovers results in firms making less R and D investment than they otherwise would.

However, both distance and relationship matter. For peers and clients, we find a positive role for proximity. After trying a few discrete radii, we find that spillovers from peers within 25 km, and for clients within 50 km, result in higher R and D expenditure. For suppliers, we find that spillover effects are always negative but less strongly so at greater distances. This gives us insight into which types of spillovers might be most important for which types of relationships, as we discuss below.

We also test for the role of industrial clustering in spillovers. We find that R and D activity is on average higher in industrial clusters but that clustering does not amplify the effect of spillovers on R and D expenditure. For public sources of R and D expenditure, we find that higher education expenditure has a positive influence on firm-level R and D expenditure. Direct government spending on research seems to crowd out private R and D expenditure.

In the next section we elaborate on the conceptual background of our approach. We provide a short literature review in Section 3 and a discussion of our data in Section 4. Our model and methodology are described in Sections 5 and 6. Our results are presented in Section 7 with the geographical refinements presented in 7.2 and the results on industrial clustering discussed in 7.3. We conclude in Section 8.

'Connect the Dots: Patents and Interdisciplinarity' by  Michal Shur-Ofry in (2017) University of Michigan Journal of Law Reform comments

This article unravels a troubling paradox in the ecosystem of innovation. Interdisciplinarity is widely recognized as a source of valuable innovation and a trigger for technological breakthroughs. Yet, patent law, a principal legal tool for promoting innovation, fails to acknowledge it in an explicit, consistent manner. Moreover, while the scientific understanding of the significance of interdisciplinarity for innovation increasingly relies on big data analyses of patent databases, patent law practically ignores patent data as a source of information about interdisciplinary innovation. This article argues that patent law should connect the dots: explicitly recognize interdisciplinarity as a positive indication in the decision whether an invention deserves patent protection, and use information derived from patent databases to evaluate the interdisciplinarity of inventions. Relying on cutting edge research in economics and network-science, the article explores nuanced manners for implementing these proposals, calling, ultimately, for the development of an algorithmic “recombination metrics” that would allow courts and patent offices to identify interdisciplinary inventions in an accessible, standardized, manner. The adoption of this article’s proposals would align patent doctrine with its ultimate goal of promoting high-risk, socially valuable, innovation; would inject an objective and measurable criterion into various patent doctrines famously criticized for their ambiguity and unpredictability; and would also allow patent law to realize some of the enormous potential of patent data — a treasure that current patent doctrine leaves untapped.

Whistleblowing Policies

'Honesty Without Fear? Whistleblower Anti-Retaliation Protections in Corporate Codes of Conduct' by Olivia Dixon in (2016) 40(1) Melbourne University Law Review 168 comments 

Whistleblowing is considered to be an integral component of corporate governance through exposing and remedying corruption, fraud and other types of wrongdoing in both the public and private sector. While whistleblowers face a very real threat of retaliation, the current regime which purports to prohibit retaliation against private-sector whistleblowers is fragmented, complex and suffers from significant gaps. This article argues that in the absence of progress towards comprehensive private-sector whistleblower protection, private commitments contained in corporate codes of conduct may provide an interim regulatory solution by setting a ‘best practices’ benchmark and diffusing norms that influence organisational behaviour and culture. By examining the whistleblower policies of Australia’s 200 largest listed companies, this article further argues that private commitments potentially provide broader protection for whistleblowers than currently available under statute, and, in their strongest form, may provide an alternative route for enforcement, through contract. 

Dixon argues

 Over the past decade whistleblowers have emerged as an integral component of corporate governance through the monitoring and control of agency costs in large public companies. By virtue of their relationships or position, whistleblowers often have privileged access to information about corporate misconduct. As such, ‘[w]histleblowing is now considered to be among the most effective, if not the most effective means to expose and remedy corruption, fraud and other types of wrongdoing in the public and private sectors.’ The expression ‘whistleblowing’ is often traced to United States consumer activist Ralph Nader in 1971;  however, it is most commonly defined as ‘disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action.’ The disclosed misconduct most often relates to a violation of a law, rule, regulation or a direct threat to the public interest such as health or safety violations, fraud, bribery or corruption.

Australian whistleblowing legislation emerged in the aftermath of the systemic government corruption inquiries of the late 1980s, meaning that although whistleblower protection was squarely on the political agenda, legislative development was firmly fixed on the public sector. The Commonwealth, states and territories have all enacted public sector whistleblower protection or public interest disclosure Acts (based on an ‘“anti-retaliation” model ... albeit with [a] stronger ... “structural” model of protection’) which prohibit retaliation against whistleblowers for reporting misconduct. While academic debate continues as to whether private sector legislation should ultimately be based on a ‘structural’, ‘anti-retaliation’, ‘reward’ or blended model, political will to enact comprehensive private sector legislation has effectively stagnated and current legal avenues that are available to targets of retaliation are inherently complex, fragmented and unpredictable.

At the Commonwealth level, the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (‘CLERP’) introduced whistleblower protection provisions into the Corporations Act 2001 (Cth) (‘Corporations Act’) to encourage company officers, employees and contractors to report potential violations of the Corporations Act; however, the provisions are poorly regarded and rarely used. More generalised remedies for targets of retaliation may exist through occupational health and safety legislation, anti-discrimination legislation or workers’ compensation legislation, and, in certain circumstances, targets of retaliation may seek recourse through the Fair Work Act 2009 (Cth) (‘Fair Work Act’) if they can demonstrate workplace bullying or an adverse action. At the state and territory level, only the South Australian and Queensland  whistleblower protection acts incorporate aspects of private sector protection. At common law, retaliation may give rise to a number of actions both in tort and contract; however, onerous burdens, fiduciary duties, defamation laws and private confidentiality agreements have all traditionally undermined the viability of this option.

As regulators are becoming increasingly reliant upon ‘private initiatives [as] the first line of enforcement’,[17] this article argues that in the absence of progress towards comprehensive private sector whistleblower protection, private commitments can provide an important interim regulatory function. Under Listing Rule 4.10.3, Australian Securities Exchange (‘ASX’) listed entities are required to benchmark their corporate governance practices against the ASX Corporate Governance Council’s Corporate Governance Principles and Recommendations and, where they do not conform, to disclose that fact and the reasons why. Recommendation 3.1 states: ‘A listed entity should: (a) have a code of conduct for its directors, senior executives and employees; and (b) disclose that code or a summary of it.’ Increasingly, companies are incorporating whistleblowing policies within these corporate codes of conduct (‘Codes’). Vandekerckhove and Commers refer to these policies as ‘[i]nstitutionalized whistle blowing’, defined as ‘the set of procedures allowing potential whistle blowers to raise the matter internally before they become whistle blowers in the strict sense.’[20] The benefits of institutionalised whistleblowing are manifold. Wrongdoing that is corrected by the company in a timely manner will avoid external disclosures and potential reputational and financial damage. Further, an appropriate management response to disclosures of wrongdoing enhances the organisational culture, and employee satisfaction and commitment.

A distinguishing feature of Codes is that they are a form of voluntary regulation and prima facie are not legally enforceable. However, the promulgation of Codes by companies has a regulatory effect through signalling appropriate behaviour.Whistleblower protection policies are therefore, at least in part, expressive in character. That is, their function is about ‘“making statements” as opposed to controlling behaviour directly.’ The whistleblower policies contained in Codes not only set a benchmark, causing some companies to alter or modify their behaviour, but by diffusing norms, they positively influence organisational behaviour and culture.

By examining the whistleblower policies of Australia’s 200 largest listed companies, this article further argues that private commitments potentially provide broader protection against retaliation for whistleblowers than currently available under statute. The majority of Codes frame the good faith reporting of misconduct as a requirement, duty or responsibility of employment; either promising that the company will not retaliate against a whistleblower or prohibiting retaliation against whistleblowers. The unqualified breadth of these promises avoids many of the problems inherent in the legal avenues currently available to targets of retaliation and, in their strongest form, may provide an alternative route for enforcement, through the employment contract.

This article proceeds as follows. Part II summarises the traditional statutory and common law protections afforded to private sector whistleblowers and examines the weaknesses of each approach. Part III considers the whistleblower policies of Australia’s largest 200 listed companies, analysing the breadth of the voluntary promises made by companies against current statutory benchmarks and guidelines. Part IV considers the circumstances under which whistleblower protection policies contained in Codes may bind the company and employee as part of the employment contract, providing an alternate cause of action for targets of retaliation. Consistent with policy rationales, enforcement of promises in Codes may provide important substantive benefits to whistleblowers by facilitating less retaliation, more certainty and therefore more whistleblowing. Part V argues that enforcement of Code provisions will incur normative benefits through encouraging the movement towards corporate self-regulation. Part VI concludes that while broader statutory protection is necessary to ensure consistent application of promises and protection of private sector whistleblowers, permitting whistleblowers to enforce a company promise through a breach of contract action could serve as a valuable additional cause of action and a deterrent to retaliation.

Standing and Disrespect

The ABC reports that Moutia Elzahed is apparently considering an appeal if convicted for disrespectful behaviour in Sydney District Court Judge Audrey Balla in November and December 2016, for example in the course of Moutia Elzahed and Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 353.

Elzahed has featured in a number of judgments (e.g. noted here), such as Moutia Elzahed and Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327 and Elzahed v Commonwealth of Australia [2015] NSWDC 271.

The Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW)  amended the Supreme Court Act 1970 (NSW) and other statutes.

Section 131 of the Supreme Court Act for example now provides

131 Disrespectful behaviour in Court 

(1) Offence 

A person is guilty of an offence against this section if: 

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and 

(b) the person intentionally engages in behaviour in the Court during the proceedings, and 

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both. 

(2) In this section, behaviour means any act or failure to act. 

(3) This section does not apply to an Australian legal practitioner appearing in that capacity. 

(4) Proceedings for offences 

Proceedings against a person for an offence against this section are to be dealt with summarily before:

(a) if the person is a child—the Children’s Court, or 

(b) if the person is not a child—the Local Court or the Supreme Court in its summary jurisdiction.

(5) Proceedings for an offence against this section may be brought at any time within 12 months after the date of the alleged offence. 

(6) Proceedings for an offence against this section may be brought only by a person or a member of a class of persons authorised, in writing, by the Secretary of the Department of Justice for that purpose. 

(7) A Judge may refer any disrespectful behaviour in proceedings over which the Judge is presiding to the Attorney General. 

(8) Proceedings for an offence against this section may be commenced only with the authorisation of the Attorney General. Authorisation may be given by the Attorney General whether or not the disrespectful behaviour is referred to the Attorney General by a Judge under this section. 

(9) Evidence 

An official transcript or official audio or video recording of the proceedings in the Court is admissible in evidence in proceedings for an offence against this section and is evidence of the matter included in the transcript or audio or video recording. 

(10) The Judge presiding over the proceedings in which the alleged disrespectful behaviour occurred cannot be required to give evidence in proceedings before any court for an offence against this section. 

(11) Contempt and double jeopardy 

This section does not affect any power with respect to contempt or the exercise of any such power. 

(12) A person cannot be prosecuted for an offence against this section and proceeded against for contempt in respect of essentially the same behaviour. However, nothing in this section prevents proceedings for contempt in respect of behaviour that constitutes an offence against this section.

The 2nd Reading Speech (12 May 2016) states

The Government is pleased to introduce the Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016. Courts are a fundamental part of our society and our system of government. We rely on our courts to enforce our laws to adjudicate individual disputes and, most importantly, to deliver justice and uphold the rule of law. The tradition and revered role of the courts is such that the community expects that certain levels of behaviour should be adhered to in the courtroom. The courts of New South Wales deal with thousands of cases every year in situations that are sometimes difficult and stressful. Following and respecting the procedures and rules of the court is integral to the smooth flow of proceedings and affording all involved their right to procedural fairness. 

Judges and magistrates in New South Wales have several ways of ensuring the smooth running of their courts, including the law of contempt, which deals with serious behaviour intended to disrupt and undermine the operation of a court. However, in November 2015, a New South Wales District Court trial highlighted that other types of disrespectful behaviour, such as a failure to stand for a judge unaccompanied by any other overt intentions or actions, may not amount to contempt. The public reaction to this case revealed a strong and widely held community sentiment that behaviour in courts, such as refusing to stand for a judge, is unacceptable. However, the behaviour did not, in that instance, meet the threshold for a charge of contempt. This case confirmed the current law of contempt does not adequately reflect widespread community concern about the level of respect that should be shown to the court, judiciary, court officers and the wider justice system by people who appear in court. 

In December 2015 the Attorney General announced that the New South Wales Government would introduce a bill into Parliament in 2016 to bridge this gap between contempt and community expectations of behaviour in court. The new offence introduced by this bill is a summary offence against deliberate behaviour in court that is disrespectful. The elements of the offence require an intentional physical act rather than an involuntary act, but as the offence is seeking to establish court practice and convention, it will not require the person to intend to be disrespectful to the court; for example, deliberately failing to stand when requested may be disrespectful, even if the person did not intend to cause disrespect by remaining seated. 

The benefits of the bill are twofold. First, judges and magistrates will be provided with an additional tool to regulate proceedings and manage their courtrooms. However, the courts will still have all the existing tools at their disposal to conduct their proceedings. Secondly, the bill sends a clear message that adherence to our laws and procedures of the judicial system is a fundamental expectation of all who appear before the courts. Following the Attorney's announcement of a new offence in December 2015, the Department of Justice consulted with key stakeholders, including the courts, the NSW Police Force, the Law Society of New South Wales, New South Wales Bar Association, Legal Aid, the Office of the Public Defender and other government agencies about the proposed new offence. The feedback received from stakeholders has been considered and taken into account in drafting the new offence, where possible. The Government is of the firm view that this bill is an appropriate response to a gap in the law as it currently stands. 

I now turn to the detail of the bill. The bill creates an offence of disrespect in court in court-specific legislation such as the Supreme Court Act 1979, the District Court Act 1973, the Land and Environment Court Act 1979, the Local Court Act 2007 and the Coroners Act 2009. This approach will allow slight jurisdictional differences to be taken into account in each court. The offence will apply in all courts in New South Wales other than the Children's Court. The Children's Court adopts a less formal procedure that is tailored to the needs of children and young people. The offence will also not apply in tribunals. Tribunal hearings involve civil matters presided over by members or commissioners rather than judges or magistrates. Tribunals have a more informal approach to the rules of evidence and procedure, and there is a high proportion of self-represented parties. Similarly in the Land and Environment Court, the offence has been made applicable only to judicial proceedings before a judge, not administrative matters that are presided over by a commissioner. 

The new offence will apply to behaviour within the courtroom by people appearing before a court and will include the accused, defendants, parties and witnesses. These are people whose presence in court is necessary for the court's proceedings. The offence will not apply to people in the public gallery who can simply be ejected from the courtroom; legal practitioners, as have they have their own set of professional standards and responsibilities enforced by the professional bodies, such as the Solicitors Rules and Barristers Rules; or police prosecutors in the Local Court because these officers are subject to separate standards set out in the Police Act 1990. 

The offence will apply to behaviour that is disrespectful to the court or the judge according to established court practice and convention. In this way, the offence will reflect community expectations as to how people should conduct themselves when appearing in court. It is not uncommon for courts to apply objective tests that reflect current community standards such as this, including when determining summary offences such as offensive conduct or offensive language. The offence requires intentional or deliberate behaviour, which will include a physical or verbal act or failure to act. This means an offence will not be committed where, for example, a failure to stand was the result of a linguistic miscommunication or the physical act was the result of an involuntary impulse that the person cannot control. Importantly, it will not be necessary to show a person has an intention to be disrespectful to the court in order for the offence to be made out. In other words, the physical or verbal act must be a voluntary action, but the offender need not have been motivated by disrespect for the court in doing that action for it to be captured by this section. 

The judicial benchbook will be updated to provide guidance to judges, magistrates and the community about the procedure relating to this new offence, including issues of procedural fairness, which are currently accorded to persons relating to possible contempt matters and will likewise apply to the new offence. This includes recommending that the judge or magistrate provide the person concerned with a warning that their conduct may amount to a breach of the section and allowing that person an opportunity to correct their behaviour or apologise before deciding to refer the matter to the Attorney General. The decision to refer a person to be charged with a new offence will be at the discretion of the presiding judge or magistrate or on the initiative of the Attorney General. Proceedings may be brought only with the consent of the Attorney General or the Attorney's delegates, being the Solicitor-General or Crown advocate. This is a significant safeguard because judges and magistrates have several tools to deal with unacceptable behaviour in court and, as with contempt referrals, this new offence should be used only where appropriate. 

The process for prosecuting the new offence will be similar to when a possible contempt of court matter is referred to the Attorney General for consideration. In keeping with the procedure for contempt, the matter would be referred to the Crown Solicitor's Office which would then prepare an advice. The advice is then forwarded to the Solicitor General or Crown Advocate, who, as the delegate of the Attorney General, will then make a determination as to whether a prosecution should proceed. 

The bill provides that the offence can only be prosecuted by a person or class of persons authorised to do so by the Secretary of the Department of Justice. The prosecution of the offence will be conducted by the Crown Solicitor's Office, as instructed by the Department of Justice. The Crown Solicitor's Office already handles prosecutions for contempt in the Supreme Court and therefore has expertise in the area. Police will not be able to lay charges for disrespect of court. 

The Crown Solicitor's Office will have regard to the Prosecution Guidelines issued by the Office of the Director of Public Prosecutions. In accordance with the Prosecution Guidelines, the Crown Solicitor's Office will consider discretionary factors in balancing whether prosecuting the matter is in the public interest. 

Even where there is a prima facie case and reasonable prospects of securing a conviction, the Prosecution Guidelines require regard to public interest and policy considerations, including vulnerabilities of the accused, such as the youth, age, maturity, intelligence, physical health, mental health or special disability or infirmity of the accused; the accused's antecedents and background, including culture and language ability; seriousness or triviality of the alleged offence; and the extent to which the alleged offence is of considerable general public concern. These safeguards will militate against the risk the new offence could have a disproportionate impact on children, Aboriginal and Torres Strait Islander people and other vulnerable people. 

Prosecutions for the new offence will generally occur in the Local Court after the relevant court appearance which gives rise to the charge. This means the court proceeding where the alleged disrespectful behaviour occurs would not be interrupted to deal with the behaviour. It is also possible to prosecute these matters in the Children's Court if the accused is a juvenile, or in the summary jurisdiction of the Supreme Court if the alleged offence occurred in that jurisdiction. 

The Crown Solicitor's Office, acting on instructions from the Department of Justice, will have 12 months to commence a prosecution before the matter becomes statute barred. This will allow time for the substantive legal proceeding to be finalised and for the appropriate level of consideration to be given to possible prosecutions. The penalty for the new offence will be half the maximum penalty for contempt when dealt with summarily by the Local Court or District Court. The maximum penalty will be 14 days imprisonment, as opposed to 28 days for contempt, and/or 10 penalty units, which is currently $1,100, as opposed to $2,200 for contempt. A lower penalty is appropriate as the offence is intended to capture behaviour that does not meet the higher threshold for contempt. 

The bill provides that judges and magistrates cannot be called as witnesses in these matters. This is the same as the position in proceedings for contempt, where judges and magistrates are generally not called as witnesses to give evidence. 

The bill also provides that certain types of evidence will be admissible in proceedings for the charge of disrespect in court. Official transcripts and recordings will often provide the best evidence of what occurred in court but other forms of evidence, such as eyewitness accounts, may be necessary. This evidentiary provision of course does not alter the burden of proof in criminal matters where the prosecution must prove all elements of the offence beyond reasonable doubt. 

This new offence is not intended to affect the inherent jurisdiction or any powers the court has to regulate its proceedings. This includes the other practical tools that judges and magistrates use to preside over their courts, such as the power to eject a person from the courtroom, issue a warning or seek an apology. Often the best response to disrespectful behaviour is a practical one, and the community must not lose sight of the fact that the primary purpose of our courts is to finalise the cases before them in a just, fair and expeditious manner. Importantly, the new offence will not curtail or limit the power and authority of judges and magistrates to find a person in contempt of court, or to refer matters of possible contempt to the Solicitor General or Crown Advocate, as the delegate of the Attorney General, or the Supreme Court to consider whether contempt proceedings should be commenced. However, the bill also makes clear that a person cannot suffer double jeopardy for behaviour that may be viewed as both disrespectful and contemptuous. 

The bill will commence on proclamation once the appropriate education and training have been released by the Judicial Commission and provided to the legal profession. This bill makes sure our laws are in line with community expectations. In a State governed by the rule of law, the courts are a vital institution that must be respected. The Government believes that the creation of this new offence reinforces the expectation that the courts and the law should be respected, and that a certain standard of behaviour is therefore appropriate. I commend the bill to the House.

Elzahed is facing nine charges of disrespectful behaviour in court for not standing when Balla J entered or left the court room during a civil hearing in November and December 2016. She is the first person in NSW to be charged with the offence of disrespectful behaviour in court.

Theory Fade

'Working Themselves Impure: A Life Cycle Theory of Legal Theories' by Jeremy K. Kessler and David Pozen in (2016) 83 University of Chicago Law Review 1819-1892 comments

 Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. 

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory’s persistence may foster down the line.

'Working for the Weekend: A Response to Kessler & and Pozen' (Virginia Public Law and Legal Theory Research Paper No. 2017-33) by Charles L. Barzun comments

In Working Themselves Impure: A Life Cycle Theory of Legal Theories, Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

Barzun concludes

The authors are hardly the first to succumb to the temptation of conceptualizing methodological debates in law around a dichotomy between internal and external points of view.  The distinction tempts the legal metatheorist because it promises to yield insights free of controversial moral or metaphysical commitments. Maybe that is why the distinction is now endemic to legal theory. But in my view, the distinction is an intellectual crutch that ought to be kicked away for good. It no longer serves any useful purpose, and it blocks clear and creative ways of thinking about law. ... 

Is there a better alternative? I am not sure, but if so, I think it begins with the recognition that two things are simultaneously true: (1) all human endeavors to organize immediate human experience into systems or patterns of thought are imperfect and so contain anomalies and contradictions, and (2) we cannot live or think other than by relentlessly engaging in such organizing and generalizing endeavors, sometimes consciously and often not. Accepting (1) means that we should not be surprised by the authors’ observations about legal theories because, as their own illuminating discussion shows, the adulteration process they identify is pervasive in intellectual life. Accepting (2) means that there is no escaping the difficulties recognized by (1). So the authors are right that no decision procedure can free judges from the need to make controversial evaluative judgments when deciding cases. But nor can any “perspective” be reached that will free legal theorists (or metatheorists) from the need to make controversial conceptual, causal, or evaluative judgments when analyzing theories for the sake of practical decision-making of any sort. If there is no exit from this predicament, then the best the metatheorist can hope for is that she be- comes marginally more aware of the “interests and ideals” driving her own judgments and perhaps someday even learns to distinguish between the two. In the meantime, all she can do is keep on trying to get it right, get it right.

There's a lighter perspective in Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533, a 'sovereign citizen' case with catchwords featuring

applicant arrested on warrant after failing to appear on charge of possession of cannabis – applicant alleging plants supplied by God – whether the criminal law can prohibit conduct approved by God – whether applicant bound by the laws and usages of this State – where applicant claiming to be a self-governed man who believes the King James Version Bible 1611 is the supreme law. 

The judgment states

The application was brought on behalf of a man described as “Adrian Ashley of the House of Cooper”. He was purportedly represented by a man who describes himself as “Keith Charles of the House of Haffey” as “petitioner”. The petitioner objected when I addressed him as “Mr Charles”, asserting that “Mister” is a military title and that he is not in the military. Without acceding to the correctness of that contention, I will refer to him (as a matter of respect) as the petitioner. The petitioner indicated that Adrian Ashley also objects to the title “Mister” on the same basis. I will refer to Adrian Ashley as the applicant.

Further

The petitioner presented a number of witness statements and other documents to the Court. He also addressed the Court orally and provided additional information in response to questions asked by me. As best I was able to ascertain from the information provided, the application was based on a number of grounds. I will address those grounds in the order I consider logical rather than the order in which they were presented in the material relied upon by the petitioner.

First, it was suggested that the applicant was arrested for conduct which is incapable of amounting to an offence. The petitioner explained that the applicant was charged after being found in possession of cannabis. The petitioner contended that all plants were given to man by God, citing Genesis 1:29 of the King James Version Bible 1611, which states: And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.

The point might have been made in response to the petitioner’s submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes. In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act 1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

The second basis for the application revealed by the material put before the Court by the petitioner was that the manner of the applicant’s arrest was unlawful. The petitioner presented a witness statement by a person described as “Izabella-marie, a living soul (woman) of majority in age”. She stated that the applicant answered a knock on the door one morning. She heard him calling for help and went to the front patio where she saw “two casually dressed strangers assaulting Adrian” (they were later identified to be police officers). The applicant asked her to call the petitioner in his capacity as “Occupant of the Office of Special Executor for the Cooper, Adrian Ashley, Estate”, which she did.

At the petitioner’s suggestion, she asked the strangers why they were arresting the applicant. The strangers said they were arresting him “for not appearing at a court hearing”. According to the statement, the applicant was arrested forcefully and assaulted by police.

The petitioner also provided his own statement, headed “Testimony to the facts”. As noted in the statement of Izabella-marie, the petitioner was not present at the premises when the applicant was arrested but spoke to her and to police by telephone throughout the incident. In order to make sense of the petitioner’s statement, it is necessary to understand that he adopts the curious practice of referring to himself variously in the third person singular, as “One”, and in the first person plural, as “We”. He stated:

(12) Throughout the time we were communicating it was also made known that One is the Occupant of the office of Commonwealth public official (Crimes Act 1914 – Section 13), common law notary public and Special Executor of the Cooper, Adrian Ashley, Estate, and that they had not followed due process of law and were assaulting Adrian without warrant and had made a false arrest and if they were to now take him from the property it could be seen as abduction and kidnap and as they were armed with guns, armed kidnap in company, and they were reminded at one point that ignorance of the law is no excuse.

(13) Despite being made aware of these above facts, they forcefully removed Adrian against his will, and took him to Newtown Police Station, which to our knowledge of the law is false imprisonment. As the men stepped out of their alleged office when they first laid hands on Adrian without following due process of law to which Adrian is fully entitled, along with his unalienable freedoms/liberties and rights. ...

The Court states

The letter asserted, in effect, that the applicant is beyond the reach of the criminal law:

Adrian-ashley is a national of the Commonwealth of Australia and not an Australian citizen, therefore the statute/legislation that is being forced upon him does not apply as he is a self-governing man who does not consent to be governed, and has only complied to police demands under duress so as to remain neutral and not be construed as belligerent.

The letter concluded by expressing the hope that the attached documents “make clear to all those concerned the position Adrian-ashley holds as a loyal subject of The Queen and his belief that the King James Version Bible 1611 as the supreme law” [sic].

The documents attached with the letter included an “Affirmation of Truth” and “Testament to Will by Proclamation” each signed by the applicant. Those documents were evidently calculated to achieve or record the applicant’s status as a self-governing person who is not bound by the law of any Sovereign State. An aspect of the position adopted by the applicant is that he expressly does not accept “any benefits or privileges of any Sovereign State”. It was not explained how, consistently with that position, he can invoke the jurisdiction of this Court. 

I did not think it was reasonably arguable that the applicant’s affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law. Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).

After hearing from the applicant at length, I formed the view that no reasonable basis for a writ of habeas corpus was disclosed and, indeed, that the application was manifestly hopeless. In that circumstance, I did not consider it appropriate to grant the relief sought or to make orders for any further step to be taken in the proceedings.

I wish to record that, during the hearing, I informed the petitioner on a number of occasions that it remains open to the applicant to make a release application under the Bail Act 2013 (NSW). The petitioner appeared to reject that proposition, evidently taking the view that a release application is only appropriate in circumstances of lawful detention, whereas he contends the applicant’s detention is unlawful. The petitioner’s view is misconceived in that respect and he potentially does the applicant a disservice in adhering to it. It is to be hoped that the applicant is aware of his entitlement (notwithstanding his stated position of eschewing the benefits and privileges conferred upon him by the State) to bring a release application under the Bail Act. Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.

Privacy

Stuart P. Green (Rutgers Law School) has posted 'To See and Be Seen: Reconstructing the Law of Voyeurism and Exhibitionism' by Stuart P. Green in (2017) 54 American Criminal Law Review comments

 Although the incidence of voyeurism and indecent exposure is relatively low compared to other sexual offenses, both crimes raise fundamental questions about the proper scope of the criminal law in a liberal society. The two offenses mark out, and mutually reinforce, the borders of the ever-changing and culturally variable understanding of what is public and what is private. In voyeurism, the offender violates the victim's right to exclude others from her private domain. In indecent exposure, the offender violates the victim's right not to be included in the private domain of others. The interests and rights at stake in the two offenses are in a sense complementary. But they also reflect significant asymmetries. The wrongs of voyeurism seem relatively clear and uncontested, and this is true even across otherwise wide cultural divides. The law of public indecency, by contrast, will prove to be messier, more sensitive to cultural variations, and more attuned to the specific circumstances in which such exposure occurs. We will see this, for example, when we consider cases in which a person exposes himself in contexts as varied as Mardi Gras parades, political protests, performance art, nude beaches, and fraternity pranks. We will also consider the ways in which the emergence of new technologies and new social practices have simultaneously lowered the threshold of what society regards as private, while increasing the potential for resulting harm to victims.

Telco Facilities and Immunities

The national government is conducting a Consultation on possible amendments to telecommunications carrier powers and immunities, centred on facilities.

The paper states

Telecommunications services play an important and expanding role in how people, businesses and governments go about their daily lives. The Australian Government is committed to Australians having ready access to high-quality, reliable and affordable telecommunications services. 

To help provide Australians with better telecommunications services more quickly and cost effectively, telecommunications carriers have powers and immunities under Schedule 3 of the Telecommunications Act 1997 (the Act). These powers and immunities help them install and maintain telecommunications network facilities. 

So they can better meet consumer’s needs faster and at lower cost, telecommunications carriers have asked the Australian Government to consider making changes to carrier powers and immunities. This would include changes to the Telecommunications (Low-impact Facilities) Determination 1997 (LIFD), the Telecommunications Code of Practice 1997 (Tel Code) and potentially Schedule 3 to the Act itself. The telecommunications industry has indicated that the changes could lead to significant time and cost savings and improved services to the community. It will also reduce burden on government and other agencies to administer these regulations. Generally, the proposed changes would:

• clarify the operation of existing powers and immunities (e.g. heritage overlays), 

• allow some increases in the size of existing facilities (e.g. solar cells), 

• allow some new type of facilities (e.g. lens antennas) , 

• allow some types of facilities in new areas (e.g. omnidirectional antennas), 

• alter some land owner and occupier notification and objection timeframes and processes in the Tel Code, and 

• potentially, enable temporary or replacement towers or extensions to be installed in some limited circumstances

The paper states Carrier powers and immunities give telecommunications carriers the ability to enter land and install and maintain some types of telecommunications network facilities. They are critical to the efficient construction and maintenance of telecommunications networks. They minimise the regulatory burden on carriers so that they can quickly and cost-effectively meet the community’s need for access to affordable, fast and reliable telecommunications services. 

Most aspects of carrier powers and immunities have been in place since 1997. Since then, communications technologies have evolved rapidly, and demand for services and data has increased dramatically. For example, in 1997, Wi-Fi was a new technology and not widespread, mobile phones did not connect to the internet, and only 25 per cent of Australians had a mobile phone subscription . 

Telecommunications carriers have proposed that powers and immunities should be amended to reflect new technologies, enhanced work practices, and reduce the regulatory cost and burden. Where carrier powers and immunities do not apply, carriers are typically required to seek planning approval for their activities under differing state and territory planning laws. These approval processes can significantly increase the time and costs for carriers to install facilities that are important for improving telecommunications services to the community and businesses. These costs flow through to consumer prices. Giving carriers uniform, streamlined powers and immunities under Commonwealth law helps them meet consumer demand for services while reducing the administrative burden on carriers and state, territory and local governments. 

Carriers have estimated that if the proposed changes proceed, they could result in over $100 million per year in regulatory cost savings to industry and government and over $50 million per year in economic and social productivity benefits to consumers. ... 

Carrier powers and immunities are set out in Schedule 3 to the Act. Schedule 3 provides carriers with powers to enter land (including public areas of buildings) for inspection, and to install and maintain certain types of facilities. It also provides certain immunities, including from a range of State and Territory laws when carrying out those activities, such as those laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection. These are collectively referred to as ‘planning laws’ in this paper. 

Most importantly, Schedule 3 covers the installation of ‘low impact facilities’, which are specified in the LIFD and discussed further below. When using carrier powers and immunities, the Act requires carriers to notify affected land owners and occupiers of their intended activities, and give them the opportunity to object. The Act also imposes a range of conditions on carriers engaging in authorised activities, including a requirement to comply with the conditions in the Tel Code which are discussed below. It requires carriers to do as little damage as practicable and restore land to a condition that is similar to before the activity began. They must act in accordance with good engineering practice, protect the safety of people and property, interfere with other users of the land as little as practicable, and protect the environment. Compliance with the requirements under Schedule 3 to the Act is a carrier licence condition. 

If Schedule 3 to the Act does not cover a particular telecommunications facility, carriers need to comply with applicable State and Territory planning laws and obtain landowner consent. For example, Schedule 3 does not permit new free standing telecommunications towers to be specified as low impact facilities. These facilities must be authorised through relevant state and territory planning laws, which typically require a development application.

Elder Abuse

The Australian Law Reform Commission's Elder Abuse report - which quotes Associate Professor Dr Wendy Bonython and myself - features the following recommendations

3. A National Plan to Combat Elder Abuse 

Recommendation 3–1 The Australian Government, in cooperation with state and territory governments, should develop a National Plan to combat elder abuse. The Plan should: (a) establish a national policy framework; (b) outline strategies and actions by government and the community; (c) set priorities for the implementation of agreed actions; and (d) provide for further research and evaluation. 

Recommendation 3–2 The National Plan to combat elder abuse should be led by a steering committee under the imprimatur of the Law, Crime and Community Safety Council of the Council of Australian Governments. 

Recommendation 3–3 The National Plan to combat elder abuse should identify goals, including: (a) promoting the autonomy and agency of older people; (b) addressing ageism and promoting community understanding of elder abuse; (c) achieving national consistency; (d) safeguarding at-risk adults and improving responses; and (e) building the evidence base. 

Recommendation 3–4 The National Plan should take into account the different experiences and needs of older persons with respect to: (a) gender; (b) sexual orientation; (c) disability; and (d) cultural and linguistic diversity. The Plan should also take into account the experiences and needs of: (a) older Aboriginal and Torres Strait Islander people; and (b) older people living in rural and remote communities. Recommendation 3–5 There should be a national prevalence study of elder abuse to build the evidence base to inform policy responses. 

4. Aged Care 

Recommendation 4–1 Aged care legislation should provide for a new serious incident response scheme for aged care. The scheme should require approved providers to notify to an independent oversight body: (a) an allegation or a suspicion on reasonable grounds of a serious incident; and (b) the outcome of an investigation into a serious incident, including findings and action taken. This scheme should replace the current responsibilities in relation to reportable assaults in s 63-1AA of the Aged Care Act 1997 (Cth). 

Recommendation 4–2 The independent oversight body should monitor and oversee the approved provider’s investigation of, and response to, serious incidents, and be empowered to conduct investigations of such incidents. 

Recommendation 4–3 In residential care, a ‘serious incident’ should mean, when committed against a care recipient: (a) physical, sexual or financial abuse; (b) seriously inappropriate, improper, inhumane or cruel treatment; (c) unexplained serious injury; (d) neglect; unless committed by another care recipient, in which case it should mean: (e) sexual abuse; (f) physical abuse causing serious injury; or (g) an incident that is part of a pattern of abuse. 

Recommendation 4–4 In home care or flexible care, ‘serious incident’ should mean physical, sexual or financial abuse committed by a staff member against a care recipient. 

Recommendation 4–5 An act or omission that, in all the circumstances, causes harm that is trivial or negligible should not be considered a ‘serious incident’. 

Recommendation 4–6 The serious incident response scheme should: (a) define ‘staff member’ consistently with the definition in s 63-1AA(9) of the Aged Care Act 1997 (Cth); (b) require the approved provider to take reasonable measures to require staff members to report serious incidents; (c) require the approved provider to ensure staff members are not victimised; (d) protect informants’ identities; (e) not exempt serious incidents committed by a care recipient with a pre-diagnosed cognitive impairment against another care recipient; and (f) authorise disclosure of personal information to police. 

Recommendation 4–7 The Department of Health (Cth) should commission an independent evaluation of research on optimal staffing models and levels in aged care. The results of this evaluation should be made public and used to assess the adequacy of staffing in residential aged care against legislative standards. 

Recommendation 4–8 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers. 

Recommendation 4–9 There should be a national employment screening process for Commonwealth-regulated aged care. The screening process should determine whether a clearance should be granted to a person to work in aged care, based on an assessment of: (a) a person’s criminal history; (b) relevant incidents under the recommended serious incident response scheme; and (c) relevant disciplinary proceedings or complaints. 

Recommendation 4–10 Aged care legislation should regulate the use of restrictive practices in residential aged care. Any restrictive practice should be the least restrictive and used only: (a) as a last resort, after alternative strategies have been considered, to prevent serious physical harm; (b) to the extent necessary and proportionate to the risk of harm; (c) with the approval of a person authorised by statute to make this decision; (d) as prescribed by a person’s behaviour support plan; and (e) when subject to regular review. 

Recommendation 4–11 The Australian Government should consider further safeguards in relation to the use of restrictive practices in residential aged care, including: (a) establishing an independent Senior Practitioner for aged care, to provide expert leadership on and oversight of the use of restrictive practices; (b) requiring aged care providers to record and report the use of restrictive practices in residential aged care; and (c) consistently regulating the use of restrictive practices in aged care and the National Disability Insurance Scheme. 

Recommendation 4–12 The Australian Government should further consider Recommendation 6–2 of ALRC Report No 124 Equality, Capacity and Disability in Commonwealth Laws, that aged care laws and legal frameworks should be amended consistently with the National Decision-Making Principles set out in that Report. 

Recommendation 4–13 Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters. 

Recommendation 4–14 The Department of Health (Cth) should develop national guidelines for the community visitors scheme. The guidelines should include policies and procedures for visitors to follow if they have concerns about abuse or neglect of care recipients. 

5. Enduring Appointments 

Recommendation 5–1 Safeguards against the misuse of an enduring document in state and territory legislation should: (a) recognise the ability of the principal to create enduring documents that give full powers, powers that are limited or restricted, and powers that are subject to conditions or circumstances; (b) require the appointed decision maker to support and represent the will, preferences and rights of the principal; (c) enhance witnessing requirements; (d) restrict conflict transactions; (e) restrict who may be an attorney; (f) set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and (g) mandate basic requirements for record keeping. 

Recommendation 5–2 State and territory civil and administrative tribunals should have: (a) jurisdiction in relation to any cause of action, or claim for equitable relief, that is available against a substitute decision maker in the Supreme Court for abuse, or misuse of power, or failure to perform their duties; and (b) the power to order any remedy available to the Supreme Court. 

Recommendation 5–3 A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators, should be established after: (a) agreement on nationally consistent laws governing: (i) enduring powers of attorney (including financial, medical and personal); (ii) enduring guardianship; and (iii) other personally appointed substitute decision makers; and (b) the development of a national model enduring document. 

6. Family Agreements 

Recommendation 6–1 State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement. 

Recommendation 6–2 The Social Security Act 1991 (Cth) should be amended to require that a ‘granny flat interest’ is expressed in writing for the purposes of calculating entitlement to the Age Pension. 

7. Superannuation 

Recommendation 7–1 The structure and drafting of the provisions relating to death benefit nominations in ss 58 and 59 of the Superannuation Industry (Supervision) Act 1993 (Cth) and reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) should be reviewed. The review should consider: (a) witnessing requirements for making, amending and revoking nominations; (b) the authority of a person who holds an enduring power of attorney in relation to the making, alteration and revocation of a nomination; (c) whether a procedure for the approval of a nomination on behalf of a member should be introduced; and (d) the extent to which other aspects of wills law may be relevant. 

Recommendation 7–2 The Superannuation Industry (Supervision) Act 1993 (Cth) should be amended to include ‘replaceable rules’ for self-managed superannuation funds which provide a mechanism for an enduring attorney to become a trustee/director where this was provided for in the enduring document and notwithstanding the terms of the trust deed and constitution of the corporate trustee or the actions of the other trustees/directors. 

Recommendation 7–3 The relevant operating standards for self-managed superannuation funds in cl 4.09 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), should be amended to add an additional standard that would require the trustee to consider the suitability of the investment plan where an individual trustee or director of the corporate trustee becomes ‘under a legal disability’. 

Recommendation 7–4 Section 104A of the Superannuation Industry (Supervision) Act 1993 (Cth) and the accompanying Australian Taxation Office Trustee Declaration form should be amended to require an individual to notify the Australian Taxation Office when they become a trustee (or director of a company which acts as trustee) of a self-managed superannuation fund as a consequence of being an attorney under an enduring document.   

8. Wills 

Recommendation 8–1 The Law Council of Australia, together with state and territory law societies, should develop national best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as: (a) elder abuse in probate matters; (b) common risk factors associated with undue influence; (c) the importance of taking detailed instructions from the person alone; (d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and (e) the importance of ensuring that the person has ‘testamentary capacity’—understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits. 

9. Banking 

Recommendation 9–1 The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of vulnerable customers, in accordance with the industry guideline, Protecting Vulnerable Customers from Potential Financial Abuse. The guideline should set out examples of such reasonable steps, including in relation to: (a) training staff to detect and appropriately respond to abuse; (b) using software and other means to identify suspicious transactions; (c) reporting abuse to the relevant authorities, when appropriate; (d) guaranteeing mortgages and other loans; and (e) measures to check that ‘Authority to Operate’ forms are not obtained fraudulently and that customers understand the risks of these arrangements. 

10. Guardianship and Financial Administration 

Recommendation 10–1 Newly-appointed private guardians and private financial administrators should be required to sign an undertaking with respect to their responsibilities and obligations. 

Recommendation 10–2 The Australian Guardianship and Administration Council should develop best practice guidelines on how state and territory tribunals can support a person who is the subject of an application for guardianship or financial administration to participate in the determination process as far as possible. 

12. Social Security 

Recommendation 12–1 The Department of Human Services (Cth) should develop an elder abuse strategy. 

Recommendation 12–2 Payments to nominees should be held separately from the nominee’s own funds in a dedicated account nominated and maintained by the nominee. 

Recommendation 12–3 Centrelink staff should speak directly with persons of Age Pension age who are entering into arrangements with others that concern social security payments. 

14. Safeguarding Adults at Risk 

Recommendation 14–1 Adult safeguarding laws should be enacted in each state and territory. These laws should give adult safeguarding agencies the role of safeguarding and supporting ‘at-risk adults’. 

Recommendation 14–2 Adult safeguarding agencies should have a statutory duty to make inquiries where they have reasonable grounds to suspect that a person is an ‘at-risk adult’. The first step of an inquiry should be to contact the at-risk adult. 

Recommendation 14–3 Adult safeguarding laws should define ‘at-risk adults’ to mean people aged 18 years and over who: (a) have care and support needs; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) are unable to protect themselves from abuse or neglect because of their care and support needs. 

Recommendation 14–4 Adult safeguarding laws should provide that the consent of an at-risk adult must be secured before safeguarding agencies investigate, or take any other action, in relation to the abuse or neglect of the adult. However, consent should not be required: (a) in serious cases of physical abuse, sexual abuse, or neglect; or (b) if the safeguarding agency cannot contact the adult, despite extensive efforts to do so; or (c) if the adult lacks the legal capacity to give consent, in the circumstances. 

Recommendation 14–5 Adult safeguarding laws should provide that, where a safeguarding agency has reasonable grounds to conclude that a person is an at-risk adult, the agency may take the following actions, with the adult’s consent: (a) coordinate legal, medical and other services for the adult; (b) meet with relevant government agencies and other bodies and professionals to prepare a plan to stop the abuse and support the adult; (c) report the abuse to the police; (d) apply for a court order in relation to the person thought to be committing the abuse (for example, a violence intervention order); or (e) decide to take no further action. 

Recommendation 14–6 Adult safeguarding laws should provide adult safeguarding agencies with necessary coercive information-gathering powers, such as the power to require a person to answer questions and produce documents. Agencies should only be able to exercise such powers where they have reasonable grounds to suspect that there is ‘serious abuse’ of an at-risk adult, and only to the extent that it is necessary to safeguard and support the at-risk adult. 

Recommendation 14–7 Adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency should not, as a consequence of their report, be: (a) liable civilly, criminally or under an administrative process; (b) found to have departed from standards of professional conduct; (c) dismissed or threatened in the course of their employment; or (d) discriminated against with respect to employment or membership in a profession or trade union. 

Recommendation 14–8 Adult safeguarding agencies should work with relevant professional bodies to develop protocols for when prescribed professionals, such as medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.

VR Trespass

'Virtual Reality Intrusion' by Gilad Yadin in (2016) 53(1) Willamette Law Review

ventures into the unchartered waters of virtual reality criminal law, presenting both a novel multidisciplinary insight into a technological medium that many believe will shape future human society and an unexpected challenge to an inherently flawed cyber intrusion legal doctrine. 

Thirty years ago, lawmakers in countries all over the world enacted new and specialized computer misuse legislation, acting on the notion that existing criminal law is insufficient to the task of prosecuting and resolving computer intrusion cases. Unfortunately, the resulting unauthorized access regime has created significant problems. One is the potential criminalization of everyday technological behavior, brought about by an overly extensive normative scope; another is chronic under-enforcement; and yet another is a wider chilling effect on creativity and digital freedoms. 

Lately, interest in virtual reality, a fairly old concept, has reawakened. Unlike other information technologies, virtual reality is built to deliver a psychological effect believably simulating the physical world; it possesses three-dimensional spatial characteristics, infuses users with real legal expectations, and mirrors human social institutions and values. Many actions within virtual reality, lawful and criminal, are subjectively and conceptually closer to physical acts than to user actions in cyberspace. Subsequently, considering some forms of virtual reality intrusion may warrant reverting back to the ancient common law doctrines of burglary and trespass as an alternative to the severely flawed modern computer misuse laws governing unauthorized access to computers and data.

Educational Liability

'Liability of Educational Providers to Victims of Abuse: A Comparison and Critique' by Anthony Gray  in (2017) 39 Sydney Law Review 167 comments

 The principle of vicarious liability is, to some extent, incoherent. It is indisputable that the case law has moved well beyond the original confines of the doctrine — the basis of its imposition having, to some extent, undercut by development elsewhere in tort law, and its rationale continuing to be subject to conjecture and disagreement. This article seeks to improve the situation by suggesting that the law of vicarious liability should be reconceptualised as having its basis in the law of agency. It does so in the context of the liability of educational providers to victims of abuse.

Gray argues

The Royal Commission into Institutional Responses to Child Sexual Abuse (‘Royal Commission’) continues to hold hearings into alleged abuse within institutions, primarily educational institutions. The scale of the alleged abuse is staggering. The Royal Commission’s Redress and Civil Litigation Report estimates a possible 60 000 survivors of institutional sexual abuse thus far. The Commission’s hearings and findings will have flow-on effects on many facets of the legal system. It is expected that there may be an increase in civil claims against educational providers for alleged abuse, as well as substantial reform to relevant legislation. 

Several cases have recently considered the civil liability of educational providers for abuse, committed by their employees, of victims under their care (usually children), including the recent High Court of Australia decision Prince Alfred College Inc v ADC.  This sad situation raises many important and difficult legal issues, primarily: the question of the extent to which the educational provider is vicariously liable for the abuser’s actions; the extent to which the educational provider may be deemed directly negligent for what has occurred; and, in some cases, questions of limitation periods, given that the survivor of the abuse may not seek legal redress until long after the events. It goes without saying that, quite apart from any legal issues, survivors of sexual abuse require society’s deepest compassion and caring for what they have suffered, the symptoms and consequences of which may endure through their lives. As a society, we must do what we can to assist in the healing process, and it is recognised that the legal system can play its part in this, as part of a much broader response. However, in and of itself, the fact a person has suffered abuse does not (and should not) automatically translate to an actionable legal claim against the institution who engaged the abuser. 

The extent to which an educational provider may be vicariously liable for the actions of their employee is part of a bigger issue of the future of the principle of vicarious liability in the law. Courts in the modern era continue to struggle to articulate a rational basis for the doctrine, tests of liability remain very difficult to apply in particular cases, and fine distinctions are made that may not reflect the realities of current employment settings. The likely increase in the number of claims in this area will place in the spotlight the appropriateness of current legal principle. 

This article surveys recent major developments in the law on vicarious liability. The main focus of the discussion will be the question of the liability of educational providers for abuse. However, these questions cannot be answered in isolation from the more general principles of vicarious liability and other liability issues, including limitation periods. Thus, some cases that do not directly involve questions of educational institutions and abuse will be discussed. Part II of this article summarises the existing law in three jurisdictions: Canada, the United Kingdom (‘UK’) and Australia, including the recent High Court of Australia decision in Prince Alfred College. A comparison among these jurisdictions is appropriate given the common law tradition they share, and because superior courts of each jurisdiction regularly refer to, and often adopt, principles developed from the others in this area of law. Part III critiques existing theories of vicarious liability. 

Part IV explores the potential of agency principles to rationalise principle in this area. This is important because, while historically vicarious liability had an agency basis, modern case law tends not to use this concept. The thesis of this article is that vicarious liability is best sourced in principles of agency, and the law should return to it, and its limits. Concededly, the High Court in Prince Alfred College did not utilise agency principles. However, over the long term, the basis of vicarious liability has changed greatly. Furthermore, in tort law more broadly, concepts have undergone rapid transformation and refinement, for example strict liability and liability of public authorities for non-feasance. In this light, it is not too late for reconceptualisation of the law of vicarious liability. In saying this, it is acknowledged that the legal principle of vicarious liability is just one of the legal principles affecting the question of financial compensation for survivors of institutional sexual abuse. Other legal rules, for instance statutes of limitation and the so-called ‘Ellis defence’, have made it difficult in practice for survivors of sexual abuse to obtain legal redress. There has been both successful  and unsuccessful legislative reform in this area. An outcome of the Royal Commission may well be further legal reforms, in substantive and procedural law, to facilitate compensation claims by survivors of institutional sexual abuse. Further, the full force of negligence principles should be applied directly against institutions that do not take proper care in the selection or supervision of staff members. While in the past, institutions may have argued ignorance about possible child sexual abuse, or difficulty in obtaining information about a person’s past record, no one today can claim to be unaware of the risk of abuse, or legitimately complain of difficulties in researching an individual’s past. 

In other words, there have been legitimate arguments in the past that vicarious liability must be robustly applied to institutions because otherwise survivors of such abuse may be left without a remedy. However, given robust application of negligence principles, developments in accessibility of information, past recent reforms and possible future reform due to the Royal Commission’s work, these concerns may be lessened. The article will now briefly consider the history and rationale of vicarious liability, examine the authorities, and critique existing rationales, before suggesting a reconception of this area of law on the basis of agency principles. It will be argued that given changes in the law of negligence, the rationale for imposing vicarious liability has (largely) evaporated, even if this is little recognised in the cases.