Sovereign Citizens

Another 'Sovereign Citizen' judgment: State of NSW v Mathers [2019] NSWSC 7.

The judgment states

 Mr John Mathers (a pseudonym for the defendant) was born in October 1972, and accordingly is 46 years of age. He has spent most but not all of his life living in the Newcastle area. As a teenager, his unfulfilled ambition was to join the RAAF. Instead, he studied jewellery-making at TAFE, and until recently rented premises in the Newcastle suburb of Charlestown in which he conducted a small business in that regard, and also resided.

In the early part of 2017, he commenced a dispute with the real estate agent for the lessor of those premises. In a nutshell, his complaint was that mould was growing inside the rented premises, and it was affecting his health. He put forward an odd explanation as to how the mould may have got there. He hung plastic sheets around the property, in an effort to protect himself from possible infection. His emails and texts to the real estate became more and more vitriolic.

Eventually, in May 2017 police were asked to check on the welfare of the defendant. They entered the premises and spoke to him. The living quarters of the defendant have been described by police as more like those of a teenager, rather than a middle-aged man. In the premises they found quite a few prohibited weapons, including two torch batons, a number of knives (some of them ceremonial in appearance, but no less sharp for that), and a Chinese made air gun that could readily be mistaken for a handgun capable of firing a deadly projectile.

They also found that the defendant had downloaded from the internet a very large volume of written material, and printed off some of it. Much of it was to do with the so-called Sovereign Citizen Movement (the Movement).

To interpolate a concise description of the Movement based upon the expert and other evidence placed before me, it originated in the United States of America, and is based on a conception of law that rejects the current United States polity as an imposed fraud that has unlawfully and immorally superseded the original ideas underpinning the American Revolution of 1776 and the US Constitution of 1787.

Its practical thesis is that individuals are entitled to resist the enforcement of laws made pursuant to that alleged fraud. For example, the Movement began as a rejection of the proposition that a citizen of that country is required to pay federal income tax.

The Movement has its idiosyncratic features quite apart from its fundamental thesis, an example of which is the adoption of a particular form of punctuation, which is preferred by adherents of the Movement to standard English usage.

In accordance with its underlying thesis, there has been on occasion violent resistance in the United States by its members to the enforcement of federal and state law, including by way of the murder of police officers and the attempted murder of judges.

The Movement has been connected to other aspects of political thought within that country, including survivalism (which involves preparedness for a post-apocalyptic world in which organised society has been destroyed), and armed militias (whereby US citizens take it upon themselves to form armed groups, often with an eye to defending not only the constitutional right to bear arms, but also a libertarian conception of the way in which the founding events and documents of that nation are said to mandate the current organisation of its society).

Some of the ideas of the Movement have been transposed to other countries, including Australia, despite its focus on particular aspects of the history of the United States. Returning now to the search conducted by the police, other downloaded items discovered in the premises of the defendant at that stage included a lengthy article about how to make booby traps. It was placed in evidence before me, and appears to be very out of date; in my opinion, it could date from the Korean War or even earlier.

There was also located a lengthy document about how to manufacture plastic explosives. 

In similar vein was a document entitled the “Guerilla’s Arsenal”.

Another document, seemingly prepared by an Australian, and to do with Australian politics, described itself as a “brief of evidence” accusing a former Australian Prime Minister of being “attainted with treason”, and is redolent of the thinking of the Movement.

So is another document authored by a person who describes himself as “Johnny Liberty”.

Other, even more radical, documents were also located. Some of them speak of Queen Elizabeth II as having been convicted by a European court of child abuse. Others speak of satanic conspiracies, and refer to the demon “Moloch”. Yet another shows a distressing image of what appeared to be mutilated human bodies being fed to children at a formal dinner (I presume that it had been “photo shopped”).

The police also located scribbled documents in the handwriting of the defendant. Some of them are illegible, some unintelligible. But some of them appear to constitute efforts to understand the statutory and common law of this country. It is possible that some of the writings relate to the dispute about the mould, because they seem to make reference to offence-creating provisions to do with the infliction of a grievous bodily disease.

After the search of May 2017, police made enquiries about the online and other activity of the defendant. They discovered that, in November 2016, the defendant had purchased a commercial pressure cooker on a website that facilitates private buying and selling (the asserted relevance of that will become apparent shortly).

In January 2017, the defendant had downloaded from the internet blueprints whereby a private individual is said to be able to manufacture plastic firearms by use of a 3-D printer. One of them was for an airgun that, according to the blueprints, looked very much like a real weapon. But others were plans for weapons that are indeed real: a plastic sub-machine gun, a carbine rifle well-known to be used by the United States Army, and a plastic semi-automatic pistol (I interpolate again that it is well known that the highly regarded Glock semi-automatic pistol is largely made of plastic).

On 6 February 2017, the computer of the defendant was used to access a YouTube video entitled “See the Difference Between Pipe Bombs and Pressure Cooker Bombs”. Separately, on 3 March 2017 two letters were discovered at the parliamentary office of an opposition member of the New South Wales Parliament (the MP). On the outside of each envelope, the following typewritten words appear verbatim:

To The Minister You are in TREASON ,,, you will be hung untill you are dead 

No Mercy , No Prisoners 

You are scum

Inside were located typewritten documents that provide a purported analysis of the Australian Constitution. That analysis is consistent with the approach of the Movement to such matters. The MP was understandably very distressed by the discovery, and the police were of course contacted. In due course, they located a DNA profile on adhesive tape attached to one of the envelopes that was consistent with the profile of the defendant.

As a result, he was charged with the following offences: sending a document threatening death or grievous bodily harm; two counts of possessing or using a prohibited weapon without a permit; and possessing an unregistered firearm, in the form of a pistol.

The defendant was granted bail. However, in August 2017, he failed to appear in answer to that bail, and was subsequently arrested and bail refused.

In due course, the defendant pleaded guilty to all offences. On 21 February 2018, he was convicted and sentenced to imprisonment in the Local Court. The aggregate sentence imposed comprised a head sentence of 1 year 4 months, with a non-parole period of 12 months, each to date from 19 September 2017, the former to expire on 18 January 2019, and the latter to expire on 18 September 2018.

Meanwhile, in October 2017, the digital material containing the blueprints for the firearms had been seized by police. It took quite some time for that material to be analysed, but after it was, the defendant was charged in November 2018 with offences arising from those downloads. He has always been bail refused on those charges.

In the meantime, it had been proposed that he be released at the end of his non-parole period on 18 September 2018. Once the nature of those downloads came to light, however, the State Parole Authority intervened and took steps to ensure that the defendant would not be released to parole.

His custodial position as at the date of the hearing before me, 11 December 2018, was therefore that his current sentence will expire in its entirety on 18 January 2019. He is also bail refused on the most recent charges, but of course could lodge a bail application (either to the court of charge, or to this Court) at any time. ...

It is in that context that the State of New South Wales (the plaintiff) has sought preliminary orders against the defendant pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act).

Building Regulation

Claddings that help your multi-storey building to go up like a roman candle? The Senate Economics Committee report on Non-conforming building products: the need for a coherent and robust regulatory regime last month comments

Confidence in the materials we use to build our domestic, commercial and public buildings is of paramount importance to all. Australians have a right to feel secure and safe in their built environment. As such, safety has always been a key motivator in the design and implementation of modern building regulations and construction codes. Often it is impossible for consumers and end users of building products to know whether a product is fit-for-purpose; trust is placed in those with the appropriate technical knowledge to ensure Australians are protected when they purchase or use building products, or that the appropriate product has been used in the place where they may work or live. 

Recent failures, such as the importation of asbestos-containing building products and the 2014 Lacrosse apartment building fire in Melbourne's Docklands, have highlighted the need for continued vigilance of building materials used in Australia. This is to ensure that building products and building practices in general, conform with the relevant building regulations and standards to guarantee public safety, along with building integrity and investment confidence in Australian building and construction. 

Non-conforming building products in Australia 

This inquiry into non-conforming building products in Australia was brought about following a number of industry-led forums that highlighted the growing body of evidence of the use of non-conforming building materials in the Australian construction industry. The inquiry has examined a range of issues surrounding the production, sourcing and use of non-conforming and non-compliant building products. 

A non-conforming product or material is one that claims to be something it is not, and does not meet the required Australian standard for the material—for example, the use of inferior grade material, or a product that contains illegal materials such as asbestos. A non-compliant building product is, one that has been used in a situation where its use does not comply with the requirements for such a material under the National Construction Code (NCC). 

As the inquiry's terms of reference detail, significant issues were raised by stakeholders regarding the impact of non-conforming products in industry supply chains (including the importers of products and the manufacturers and fabricators of products), workplace safety and the variety of risks and costs that could be passed on to Australian customers. Alongside these issues, the committee took evidence relating to the use of non-compliant building materials. The inquiry also considered and examined the effectiveness of the current Australian building regulatory frameworks that are designed to ensure that building products conform to, and have been used or installed in compliance with, the relevant Australian Standards. 

Inquiry's interim reports 

Through the course of the inquiry, the committee has tabled three interim reports in relation to the issues raised by submitters and at public hearings as outlined in Chapter 1. 

The interim reports were:

Interim report: Safety—'not a matter of good luck'—4 May 2016; 

Interim report: aluminium composite cladding—6 September 2017 [noted here]; and 

Interim report: protecting Australians from the threat of asbestos— 22 November 2017. 

The first interim report, in May 2016, raised a range of concerns; including, the illegal importation of building products containing asbestos; the 2014 Lacrosse apartment fire in Melbourne and the use of non-compliant aluminium composite cladding; and the national recall of Infinity electric cable. The committee found that there had been a serious breakdown in the regulation and oversight of both non-conforming and non-compliant building products. In particular, the committee highlighted the weakness in the regulatory regime, including the certification process and the disjointed regulation of the use of building products, both manufactured in Australia and overseas. Based on the findings in the first interim report, the committee made one recommendation which was to continue the inquiry. 

In September 2017, the committee tabled its second interim report—Interim report: aluminium composite cladding. This report focused on the issues raised around the use of polyethylene (PE) core Aluminium Composite Panels (ACPs) that had significantly contributed to the Lacrosse fire in Melbourne in 2014 and the tragic Grenfell Tower fire in London in 2017. The report found that deregulation and privatisation of building certification processes and the absence of proper regulatory controls, coupled with the increase in ACP product importation, led to the proliferation and installation of non-compliant building products. Importantly, the report was also critical of the lack of any timely government response to the Lacrosse fire, as well as any meaningful resolution between governments, the Building Ministers' Forum, and the Senior Officers' Group on possible steps forward in dealing with the proliferation of ACP panels. The committee's report put forward eight recommendations to address the importation and use of ACP panels and strengthen the regulatory system including recommending banning the importation of ACP panels and a national licencing scheme for all trades and professionals (See Appendix 3 for list of recommendations). 

In November 2017, the committee tabled its third interim report titled, Interim report: protecting Australians from the threat of asbestos. Like its predecessor, this report concentrated on one topic, the illegal importation of asbestos. This report made 26 recommendations addressing how best to combat the intentional and unintentional importation of asbestos in building and other materials, including complete machinery (See Appendix 4 for list of recommendations). 

Final inquiry report 

This final report outlines many of the common issues across the prior three reports. It also supports the compliance concerns raised in the Building Ministers' Forum report, Building Confidence—Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia, prepared by Professor Peter Shergold and Ms Bronwyn Weir, and draws attention to the progress being made in dealing with non-conforming products in some jurisdictions. Specifically, the committee was encouraged by the proactive work undertaken by the Queensland Government in their new legislation designed to strengthen the chain of responsibility for the importation and distribution of building materials. As such, Recommendation 6 of this report suggests that other jurisdictions also move to implement similar legislation to ensure responsibility and accountability is spread more evenly across supply chains. 

Recommendation 6 

The committee recommends that the Building Ministers' Forum give further consideration to introduce a nationally consistent approach that increases accountability for participants across the supply chain. Specifically, the committee recommends that other states and territories pass legislation similar to Queensland's Building and Construction Legislation (Non-conforming Building Products—Chain of Responsibility and Other Matters) Amendment Act 2017. 

Where to next? 

By and large, many of the 13 recommendations of this final report echo those recommendations put forward in the previous interim reports. The committee is cognisant that the Building Ministers' Forum is already moving on some of these issues as highlighted by the Shergold and Weir report. Nevertheless, the committee would encourage both the government and the Building Ministers' Forum to increase the level of momentum in implementing these recommendations and, moreover, those recommendations that have been raised previously. These include, expediting mandatory third party certification for high risk products, including a national register of non-compliant products if feasible, and the introduction of a national licencing scheme. A simple change that the committee put forward previously, and one which it strongly believes would assist stakeholders, is to consider making all Australian Standards freely available. All forms of legal requirements should be freely available, where feasible, so that stakeholders can inform themselves adequately of their obligations under the relevant law.

The Committee goes on to state

The recommendations contained in this report are aimed at strengthening accountability and compliance and providing greater information to stakeholders, in turn, allowing stakeholders to make informed choices and ensuring the development of a coherent and robust regulatory regime for building materials in Australia. The committee believes that the areas that would benefit from urgent action by the Building Ministers' Forum include the following recommendations: 1, 3, 5, 6 and 10. 

Recommendation 1  

The committee recommends that the Building Ministers' Forum develop improved consultative mechanisms with industry stakeholders. In addition, the Building Ministers' Forum should amend the terms of reference for the Senior Officers' Group and the Building Regulators Forum to include annual reporting requirements on progress to address non-conforming building products. 

Recommendation 3 

The committee calls on the Building Ministers' Forum to expedite its consideration of a mandatory third-party certification scheme for high-risk building products and a national register for these products. 

Recommendation 5 

The committee recommends that the Building Ministers' Forum, through the Senior Officers' Group, examine international approaches—including the European Union's regulations and processes—for testing of high-risk products prior to import and determine if they can be suitably adapted to benefit and enhance Australian requirements. 

Recommendation 10 

The committee gives in-principle support to Recommendation 12 of the Shergold and Weir Report '[t]hat each jurisdiction establishes a building information database that provides a centralised source of building design and construction documentation' so regulators are better placed to identify where non-compliant building products have been installed. 

The committee has also identified a range of specific recommendations (numbers: 2, 4, 7, 8, 9, 11, 12, and 13) that it believes are best placed for government to progress and, as indicated earlier, a number of these have been proposed in earlier interim reports. 

Recommendation 2 

The committee recommends that the Australian Government develop a confidential reporting mechanism through which industry and other stakeholders can report non-conforming building products. 

Recommendation 4 

The committee recommends that where an importer intends to import goods that have been deemed high-risk, the Australian Government require the importer, prior to the importation of the goods, to conduct sampling and testing by a NATA accredited authority (or a NATA equivalent testing authority in a another country that is a signatory to a Mutual Recognition Arrangement). 

Recommendation 7 

The committee recommends that the Australian Government work with state and territory governments to establish a national licensing scheme, with requirements for continued professional development for all building practitioners. 

Recommendation 8  

The committee strongly recommends that the Australian Government consider making all Australian Standards freely available. 

Recommendation 9 

The committee recommends that the Australian Government consult with industry stakeholders to determine the feasibility of developing a national database of conforming and non-conforming products. 

Recommendation 11 

The committee recommends the Australian Government consider imposing a penalties regime for non-compliance with the National Construction Code such as revocation of accreditation or a ban from tendering for Commonwealth funded construction work and substantial financial penalties. 

Recommendation 12 

The committee recommends that the Australian Government consider the merits of requiring manufacturers, importers and suppliers to hold mandatory recall insurance for high-risk building products. 

Recommendation 13 

The committee recommends that the Australian Government review the Customs Act 1901 (and other relevant legislation) to address the challenges of enforcing the existing importation of asbestos offence, with the aim to close loopholes and improve the capacity of prosecutors to obtain convictions against entities and individuals importing asbestos. This review should include consideration of increasing the threshold required to use 'mistake of fact' as a legal defence. The committee strongly advocates that the Australian Government and Building Ministers' Forum move quickly to adopt and implement these recommendations to provide greater confidence in building products and to protect all Australians.

Police, Data and Covert Recording

We might infer from an item in ITnews that supervision of Qld Police personnel is working (computer offences are being identified) but the thin blue line hasn't quite got the message.

In December ITnews reported

information released under Queensland’s right to information laws ... revealed that Queensland police took no disciplinary action against 52 of the 59 officers it investigated for computer hacking between August 2016 and September 2017.

Moving on to January, and perhaps in response to that revelation, ITnews states 'Yet another Qld cop charged with hacking: One of four to face charges since December'.

A senior constable has been charged with 'Computer Hacking and Misuse' offences (carrying a a maximum penalty of 10 years imprisonment) for unauthorised access to Qld Police's information systems. He is the state’s fourth police officer to face charges of computer hacking since the start of last month.

Queensland Police states

In keeping with our commitment to high standards of behaviour, transparency and accountability, we have undertaken to inform the public when an officer faces serious allegations of misconduct. 

This does not mean the allegations against the officer have been substantiated.

A 36-year-old undercover officer from the Brisbane region, was stood down  in early December following an internal investigation. A 52-year-old senior constable from Road Policing Command, was subsequently issued with a notice to appear for nine counts of computer hacking after being investigated for conducting unauthorised searches of QPS information systems. A 37-year-old constable from Central Region was then suspended in December after being served a notice to appear for 31 charges of computer hacking.

'Legal Responses to Non-Consensual Smartphone Recordings in the Context of Domestic and Family Violence' by Heather Douglas and Mark Burdon in (2018) 41(1) UNSW Law Journal 157 comments

The increasingly ubiquitous use of smartphones is further complicating the legal response to domestic and family violence (‘DFV’). Perpetrators can now use smartphone recording facilities to record private conversations and activities of their (ex-)partners. Such behaviour may be a criminal offence of breach of a domestic and family violence protection order or stalking. On the other hand, those who have experienced DFV can record perpetrators and use the recordings in legal proceedings. The use of non-consensual smartphone recordings as evidence in DFV related cases is increasing and courts must determine when recordings are admissible. A key factor in making such determinations is whether the recording contravenes state-based criminal laws and listening and surveillance devices law. Drawing on reported experiences of the use of smartphone recordings in the context of DFV we show why further consideration and legal reform is needed if the law is to keep pace with this issue. 

They state

Increasingly, domestic and family violence (‘DFV’) is understood as involving a complex pattern of coercive and controlling behaviour. Stark has observed that coercive control includes structural forms of deprivation including the micro-regulation of everyday behaviour which, among other effects, subverts victims’ rights to privacy. For Stark, DFV is a liberty crime which creates conditions of ‘un-freedom’. He explains that there are four factors that distinguish coercive control from domestic assault: the extent to which its mode of oppression is embedded in objective structural constraints, its specific focus on enforcing gender stereotypes, its inextricable link to sexual inequality, and the extent to which it restricts autonomy and basic freedoms such as speech, movement and self-determination. 

He references the United States Supreme Court’s seminal decision in Griswold v Connecticut, which established an affirmative protection against governmental intrusions into ‘zones of privacy’. These zones of privacy, Stark notes, ‘encompass many of the material and social conditions of equality and self-determination violated by coercive control’. Thus privacy can be understood as an aspect of freedom and autonomy, and coercive control as subverting the freedom of self-determination of the individual. 

In the DFV context, it is clear that the use of technology can enhance perpetrator possibilities for limiting a victim’s freedom. There is a growing literature that has situated technology-facilitated abuse as DFV/coercive control. In the Australian context, research by Hand, Chung and Peters drew attention to the variety of information and communication technologies used by perpetrators to abuse and control their intimate or former intimate partners. Woodlock’s recent research identified the increasing use of technology, especially smartphones, by perpetrators to facilitate stalking and other forms of abuse in the context of DFV. Research has also found that sexting coercion can be a form of intimate partner violence, providing perpetrators with another digital route for physical and sexual victimisation. Technology-facilitated abuse is becoming an increasingly important area of research in part because it is experienced by such a large proportion of women and also because, as technology has become cheaper and easier to use, technology-facilitated abuse has become increasingly prevalent. This is especially so in the context of smartphones, given the widespread use of such devices and the ability of smartphone technologies to challenge established notions of public and private spheres, or ‘zones’, as highlighted by Stark above. The application of privacy-related protections, in this context, is further complicated because privacy law has traditionally afforded greater protections to the private, rather than the public, sphere.[13] The once binary relationship between the private and privacy law protections accorded to such spheres is now widely recognised as problematic in the contemporary privacy law literature. Likewise, it is becoming increasingly clear that the applications of new technologies, such as smartphones, are impacting upon individual relationships within such spheres. 

As this article shows, certain forms of technological output, such as smartphone recordings, can be used by both perpetrators and victims. Perpetrators can use non-consensual recordings for the purposes of coercively controlling their victim. However, victims are also employing non-consensual smartphone recordings of their abusive partners in an effort to protect themselves, and sometimes for evidence in subsequent legal proceedings. Accordingly, regulating the use of technology, and non-consensual smartphone recordings in particular, presents a conundrum for policymakers. While technology can be used to perpetuate abuse it can also assist survivors to obtain the legal redress and safety they need. The fact that a non-consensual smartphone recording can be used for both positive and negative purposes makes judicial considerations about such recordings complex. 

Two similar non-consensual recordings, conducted by both perpetrator and victim in the context of DFV, can have very different purposes or uses and result in different legal consequences. How then are courts to differentiate between the two and determine whether a recording by an abuser is DFV and a form of stalking or intimidation, and whether a recording by a victim is for self-protection or a contravention of relevant listening and surveillance device legislation? 

The perspectives of survivors continue to be important in informing appropriate legal responses to DFV, and in this article we draw on interviews undertaken as part of a qualitative study involving women who have experienced DFV and have engaged with the legal system. Interviewees in this study explained how smartphone recording may help to increase their sense of safety and provide valuable evidence for legal proceedings. However, in contrast to this, some interviewees also reported that where abusive partners undertake recording, this may be experienced as intimidating and cause an abused person to be fearful. There are several legal responses to recording depending on the context. In some cases, a person’s act of recording may justify a criminal charge of stalking or intimidation. Depending on whether there is a domestic and family violence protection order (‘DFVO’) in place, and depending on the conditions of the DFVO, recording may be a breach of the DFVO. Finally, in some cases parties may seek to have the recording admitted into evidence and, in most cases, the deciding factor on admitting evidence seems to regard whether the recording is in breach of the various listening and surveillance devices legislation in place in each jurisdiction. In the next section, we provide some further background to the Leaving Domestic Violence Study. We then draw on the reports of the interviewees to frame our discussion of legal responses to recording as abuse and then to recording as a response to abuse, before highlighting the complex concerns for courts in adjudicating legal responses to DFV involving smartphone recordings.

Misbehaving Robots and the automation tax

The 108 page 'Remedies for Robots' (Stanford Law and Economics Olin Working Paper No. 523) by Mark A. Lemley and Bryan Casey asks

What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence (AI) systems increasingly integrate into our society, they will do bad things. They have already killed people. These new technologies present a number of interesting substantive law questions, from predictability, to transparency, to liability for high stakes decision making in complex computational systems. Our focus here is different. We seek to explore what remedies the law can and should provide once a robot has caused harm. 

The authors state

 Where substantive law defines who wins legal disputes, remedies law asks, “What do I get when I win?” Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. For instance, the law will often act to deprive a defendant of its gains even if the result is a windfall to the plaintiff, because we think it is unfair to let defendants keep those gains. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful. 

Each of these goals of remedies law, however, runs into difficulties when the bad actor in question is neither a person nor a corporation but a robot. We might order a robot—or, more realistically, the designer or owner of the robot—to pay for the damages it causes. (Though, as we will see, even that presents some surprisingly thorny problems.) But it turns out to be much harder for a judge to “order” a robot, rather than a human, to engage in or refrain from certain conduct . Robots can’t directly obey court orders not written in computer code. And bridging the translation gap between natural language and code is often harder than we might expect. This is particularly true of modern AI techniques that empower machines to learn and modify their decision making over time. If we don’t know how the robot “thinks,” we won’t know how to tell it to behave in a way likely to cause it to do what we actually want it to do. 

Moreover, if the ultimate goal of a legal remedy is to encourage good behavior or discourage bad behavior, punishing owners or designers for the behavior of their robots may not always make sense—if only for the simple reason that their owners didn’t act wrongfully in any meaningful way. The same problem affects injunctive relief. Courts are used to ordering people and companies to do (or stop doing) certain things, with a penalty of contempt of court for noncompliance. But ordering a robot to abstain from certain behavior won’t be trivial in many cases. And ordering it to take affirmative acts may prove even more problematic. 

In this paper, we begin to think about how we might design a system of remedies for robots. It may, for example, make sense to focus less of our doctrinal attention on moral guilt and more of it on no-fault liability systems (or at least ones that define fault differently) to compensate plaintiffs. But addressing payments for injury solves only part of the problem. Often we want to compel defendants to do (or not do) something in order to prevent injury. Injunctions, punitive damages, and even remedies like disgorgement are all aimed, directly or indirectly, at modifying or deterring behavior. But deterring robot misbehavior too is going to look very different than deterring humans. Our existing doctrines often take advantage of “irrational” human behavior like cognitive biases and risk aversion. Courts, for instance, can rely on the fact that most of us don’t want to go to jail, so we tend to avoid conduct that might lead to that result. But robots will be deterred only to the extent that their algorithms are modified to include sanctions as part of the risk-reward calculus. These limitations may even require us to institute a “robot death penalty” as a sort of specific deterrence against certain bad behaviors. Today, speculation of this sort may sound far-fetched. But the field already includes examples of misbehaving robots being taken offline permanently—a trend which only appears likely to increase in the years ahead. 

Finally, remedies law also has an expressive component that will be complicated by robots. We sometimes grant punitive damages—or disgorge ill-gotten gains—to show our displeasure with you. If our goal is just to feel better about ourselves, perhaps we might also punish robots simply for the sake of punishing them. But if our goal is to send a slightly more nuanced signal than that through the threat of punishment, robots will require us to rethink many of our current doctrines. It also offers important insights into the law of remedies we already apply to people and corporations.

Should Robots Pay Taxes? Tax Policy in the Age of Automation' by Ryan Abbott and Bret Bogenschneider in (2018) 12 Harvard Law and Policy Review 145-176 comments

Existing technologies can already automate most work functions, and the cost of these technologies is decreasing at a time when human labor costs are increasing. This, combined with ongoing advances in computing, artificial intelligence, and robotics, has led experts to predict that automation will lead to significant job losses and worsening income inequality. Policy makers are actively debating how to deal with these problems, with most proposals focusing on investing in education to train workers in new job types, or investing in social benefits to distribute the gains of automation. 

The importance of tax policy has been neglected in this debate, which is unfortunate because such policies are critically important. The tax system incentivizes automation even in cases where it is not otherwise efficient. This is because the vast majority of tax revenues are now derived from labor income, so firms avoid taxes by eliminating employees. Also, when a machine replaces a person, the government loses a substantial amount of tax revenue potentially hundreds of billions of dollars a year in the aggregate. All of this is the unintended result of a system designed to tax labor rather than capital. Such a system no longer works once the labor is capital. Robots are not good taxpayers. 

We argue that existing tax policies must be changed. The system should be at least "neutral" as between robot and human workers, and automation should not be allowed to reduce tax revenue. This could be achieved through some combination of disallowing corporate tax deductions for automated workers, creating an "automation tax" which mirrors existing unemployment schemes, granting offsetting tax preferences for human workers, levying a corporate self-employment tax, and increasing the corporate tax rate.

'Digitalisation and the Future of National Tax Systems: Taxing Robots?' by Joachim Englisch comments 

It is generally assumed that already in the next decade, the use of labour-saving robots with implemented artificial intelligence will lead to a dramatic transition of the workforce in almost all sectors of production and services. The ensuing loss of jobs that have traditionally been performed by a human employees is likely to result at least temporarily in reduced wage tax and payroll tax revenues, increasing income inequality and a disruption of the labour market. Against this backdrop, the idea of taxing the use of robots that replace human workforce, or even taxing the robots themselves, has emerged in politics and scholarly writings. Several justifications have been brought forward by its proponents: the robot tax has been regarded, respectively, as a corollary to a soon-to-be-expected concession of civil law personhood to robots, as a tax on imputed income earned by means of the robot, as an equalisation levy to restore the level playing field regarding the taxation of robots and of human workers, as an instrument for economically efficient wage compression between winners and losers of automation among the human workforce, or as a corrective tax to slow down the disruption of the labour market. 

This paper argues that upon a closer look, the case for taxing robots or their use is relatively weak, though, except when specific conditions are met. There is currently no compelling argument to make robots themselves taxable persons, neither for the purposes of income taxation nor for the purposes of indirect taxes on consumption expenditure. Moreover, significant objections can also be raised regarding suggestions to tax the use of robots. Some of the concepts advanced in literature rely on presumptions that are either conceptually flawed or lack credible empirical support. Other proposals have their merits, but when weighing in on their potential benefits, policymakers will also have to take into account that any tax on robots is liable to result in distortions, complexities, and reduced growth. Besides, proponents of a robot tax tend to underestimate how capital mobility and international tax competition could easily undermine the respective objective of such a tax. As a Pigouvian tax, a robot tax will therefore likely have a very limited field of reasonable application. Regarding income redistribution and revenue raising objectives, the taxation of robots should only be considered as a measure of last resort, and in any event a provisional one. Where politically feasible, priority should instead be given to intensified efforts to tax the return on capital investments and on profits in general, including an adequate taxation of ultimate shareholders. In any event, increasing automation should have implications for the international allocation of taxing rights.

'A tax on robots? Some food for thought' by Germana Bottone argues 

 Tax administrations face new and ever greater challenges. Some data collected show that the use of industrial robots has been increasing since 1990; therefore their entry in our life is not more a fantasy and it will generate relevant changes in legal, economic and social systems. As far as tax policy is concerned, if robots have a high elasticity of substitution with labour a fall in tax revenue is expected, as labour taxes represent a significant portion of tax revenue. In addition, since robotization seems to jeopardise especially routine and low skilled workers, governments need growing public resources to be invested in education and training system. Starting from these premises, the paper deals with the possible design and the effects of the introduction of a robot tax.

Bottone comments

The coming age of “robots” raises a lot of questions with regard to social, economic and legal order. Therefore, it may be helpful to begin thinking about how to face the issues arising in the future from robotization and trying to control them rather than being mere bystanders. First of all, the paper deals with the definition of artificial intelligence (AI), which seems to bring about a technological revolution in many ways different from the past ones, given that AI may reproduce human cognitive capabilities. The second step is to establish the actual diffusion of AI mainly in productive activities and try to predict future scenarios. These premises are preparatory to a discussion about the introduction a robot tax, provided that robots progressively substitute labour and policy makers have to face massive unemployment and the lack of public resources. Two issues are at stake: a) labour taxes supplies a large portion of tax revenue almost everywhere, therefore if robots progressively substitute labour, a fall in tax revenue is expected; b) most of the economic literature suggest to invest in education and training to face unemployment brought about by AI, since data show that robotization hampers especially routine/low-skilled workers. As a consequence the need of public resources may increase. Summing up, a robot tax – restoring tax neutrality among productive inputs - may slow down the growth of unemployment and provide the necessary public resources. 

In addition, the literature in favour of a robot tax highlight that labour taxes are very high as they include also payroll taxes, while capital taxation is more favourable also because policy makers aim at fostering private investments, infringing the principle of neutrality with a view to promote economic growth. This is a relevant issue in the discussion about a robot tax, especially considering globalization and tax competition among global jurisdictions. Therefore, the conclusion of this paper is that, if we agree upon the convenience to introduce a robot tax, a global effort is required to include this topic in the international agreements already in place to fight global tax competition.

'Taxing the Robots' by Orly Mazur in (2018-2019) 46 Pepperdine Law Review 277-330 comments

Robots and other artificial intelligence-based technologies are increasingly outperforming humans in jobs previously thought safe from automation. This has led to growing concerns about the future of jobs, wages, economic equality, and government revenues. To address these issues, there have been multiple calls around the world to tax the robots. Although the concerns that have led to the recent robot tax proposals may be valid, this Article cautions against the use of a robot tax. It argues that a tax that singles out robots is the wrong tool to address these critical issues and warns of the unintended consequences of such a tax, including limiting innovation. Rather, advances in robotics and other forms of artificial intelligence merely exacerbate the issues already caused by a tax system that undertaxes capital income and overtaxes labor income. Thus, this Article proposes tax policy measures that seek to rebalance our tax system so that capital income and labor income are taxed in parity. Because tax policy alone cannot solve all of the issues raised by the robotics revolution, this Article also recommends non-tax policy measures that seek to improve the labor market, support displaced workers, and encourage innovation. Together, these changes have the potential to manage the threat of automation while also maximizing its advantages, thereby easing our transition into this new automation era.

'Vital, Sophia, and Co. — The Quest for the Legal Personhood of Robots' by Ugo Pagallo in (2018) 9(9) Information 230 comments

The paper examines today’s debate on the legal status of AI robots, and how often scholars and policy makers confuse the legal agenthood of these artificial agents with the status of legal personhood. By taking into account current trends in the field, the paper suggests a twofold stance. First, policy makers shall seriously mull over the possibility of establishing novel forms of accountability and liability for the activities of AI robots in contracts and business law, e.g., new forms of legal agenthood in cases of complex distributed responsibility. Second, any hypothesis of granting AI robots full legal personhood has to be discarded in the foreseeable future. However, how should we deal with Sophia, which became the first AI application to receive citizenship of any country, namely, Saudi Arabia, in October 2017? Admittedly, granting someone, or something, legal personhood is—as always has been—a highly sensitive political issue that does not simply hinge on rational choices and empirical evidence. Discretion, arbitrariness, and even bizarre decisions play a role in this context. However, the normative reasons why legal systems grant human and artificial entities, such as corporations, their status, help us taking sides in today’s quest for the legal personhood of AI robots. Is citizen Sophia really conscious, or capable of suffering the slings and arrows of outrageous scholars?

Pagallo argues

The legal personhood of robots has been a popular topic of today’s debate on the normative challenges brought about by this technology. In 2007, for example, Carson Reynolds and Masatoshi Ishikawa explored the scenarios of Robot Thugs, namely, machines that choose to commit and, ultimately, carry out a crime: their aim was to determine whether and to what extent these machines can be held accountable [1]. Three years later, I expanded this analysis on agency and criminal responsibility, to the fields of contracts and extra-contractual liability [2]. In homage to Reynolds and Ishikawa’s creature Picciotto Roboto, my next paper then provided a concise phenomenology on how smart AI systems may affect pillars of the law, such as matters of criminal accountability, negligence, or human intent [3]. In 2013, I summed this analysis up with my monograph on The Laws of Robots [4]. There, I suggested a threefold level of abstraction, so as to properly address today’s debate on the legal personhood of robots and smart AI systems, that is: (i) The legal personhood of robots as proper legal “persons” with their constitutional rights (for example, it is noteworthy that the European Union existed for almost two decades without enjoying its own legal personhood); (ii) The legal accountability of robots in contracts and business law (for example, slaves were neither legal persons nor proper humans under ancient Roman law and still, accountable to a certain degree in business law); (iii) New types of human responsibility for others’ behaviour, e.g., extra-contractual responsibility or tortuous liability for AI activities (for example, cases of liability for defective products. Although national legislation may include data and information in the notion of product, it remains far from clear whether the adaptive and dynamic nature of AI through either machine learning techniques, or updates, or revisions, may entail or create a defect in the “product”). 

Against this framework, the aim of the paper is to shed further light on such threefold status that AI robots may have in the legal domain, by taking into account what has happened in this domain of science, technology, and their normative challenges over the past years. Whereas most legal systems, so far, have regulated the behaviour of AI robots as simple tools of human interaction and hence, as a source of responsibility for other agents in the system [4], have advancements of technology affected this traditional framework? Do certain specimens of AI technology, such as smart humanoid robots, recommend that we should be ready to grant some of these robots full legal personhood and citizenship? Or, would such legislative action be morally unnecessary and legally troublesome, in that holding AI robots accountable outweighs the “highly precarious moral interests that AI legal personhood might protect” [5]? 

To offer a hopefully comprehensive view on these issues, the paper is presented in three parts. First, focus is on current trends of AI technology and robotics, so as to stress both benefits and threats of this field. Then, attention is drawn to the confusion that prevails in most of today’s debate between the legal personhood of AI robots and their legal accountability in contracts and business law. Finally, the analysis dwells on the pros and cons of granting AI robots full legal personhood, as opposed to the status of legal accountability, or as a source of responsibility for other agents in the legal system. At the risk of being lambasted for reactionary anthropocentrism, the conclusion of the paper is that such a quest for the legal personhood of AI robots should not have priority over the regulation of more urgent issues triggered by the extraordinary developments in this field.