Data Breach and EU competition law

'Can competition law protect consumers in cases of a dominant company breach of data protection rules?' by Marija Stojanovic in (2020) European Competition Journal comments 

 This paper focuses on the “burning debate” of whether competition law and data protection could go: “hand in hand”. More accurately, whether a breach of data protection law could be considered a breach of competition law and serve as a tool to define that a dominant company abused its dominant position in digital markets. Notably, the recent preliminary finding in the favour of dual proceedings was brought by Bundeskartellamt in the Facebook case but the “too harsh” decision by the Düsseldorf Higher Regional Court created additional confusion and contradicted Bundeskartellamt’s approach. However, the twist happened this week when the German Federal Supreme Court has ruled in favour of Bundeskartellamt. The position of the author is in favour of the need for dual proceedings. A breach of data protection can be considered a breach of competition rules only if a cogent theory of harm based on solid evidence proves that competition is harmed.

Regulatory Capture

A valuable perspective on regulatory capture is provided in 'Pharmaceutical Ethics and Grassroots Activism in the United States: A Social History Perspective' by Sharon Batt, Judy Butler, Olivia Shannon and Adriane Fugh-Berman in (2020) 17 Journal of Bioethical Inquiry 49-60 which comments 

Women’s health activists laid the ground-work for passage of the law that created the U.S. Food and Drug Administration in 1906. The pharmaceutical and food industries fought regulatory reforms then and continue to do so now. We examine public health activism in the Progressive Era, the postwar era and the present day. The women’s health movement began in the 1960s, and criticized both the pharmaceutical industry and the medical establishment. In the 1990s, patient advocacy groups began accepting industry funds; thousands of commercially-funded groups now dominate the advocacy landscape. As pharma funding became normalized, concerns arose regarding a) the lack of transparency and public accountability regarding funding, b) the distortion of groups’ agendas, and c) the ability of pharma-funded groups to dominate the discourse and override less well-resourced patient and health advocacy groups. Although industry-funded groups argue that funding allows them to provide useful services, the trade-off in health risks, exorbitant prices and distorted information is far too high. Sincerity is beside the point; patients and the industry have differing interests when it comes to drug safety and efficacy, drug information and drug prices. A growing resistance movement is asserting the values of its activist predecessors and opposing the prevailing culture of pharma-funded advocacy. 

 After a cogent historical analysis the authors state 

By the end of the decade, patient groups existed for every major disease and had gained status within the policy community. Industry recognized the potential marketing advantages and “pharma partnerships” (Batt 2017) gradually became normalized and formalized, with codes of ethics governing the relationships set out by organizations and industry groups (PhRMA 2014). Pharmaceutical industry publications and presentations showed a transition from a haphazard “spray and pray” method of corporate giving to a more strategic approach designed to advance corporate goals (Cox 2002; Best Practices 2004). Companies gave larger sums of money to key organizations; ongoing relationships helped the companies gain faster drug approvals, place expensive new drugs on formularies, and achieve rapid recruitment into clinical trials. Public relations companies played matchmaker, introducing companies to “the right partner” (Breitstein 2002) and framing core messages for national and regional audiences. 

Today, thousands of patient advocacy groups operate within the United States and studies estimate that at least two-thirds accept funds from the pharmaceutical industry. Studies over thirteen years using different methodologies reveal a consistent pattern. A 2006 New Scientist survey sampled twenty U.S. patient advocacy groups with annual revenues over $100,000 and found that sixteen (80 per cent) received industry funding (Marshall and Aldhous 2006). Only two, the National Women's Health Network and Breast Cancer Action, had an explicit policy against taking money from pharmaceutical companies (Marshall and Aldhous 2006). Kaiser Health News and The Washington Post found that pharmaceutical companies gave at least $116 million to American patient advocacy groups in 2015 alone (Kopp, Lupkin, and Lucas 2018). A 2017 study utilized an encyclopedic directory of U.S. national organizations to count up 7,865 patient advocacy groups (Rose et al. 2017). A sample of 289 of these organizations found that 67.3% reported receiving funds from a pharmaceutical company in the past year, with a median gift of $50,000. A recent study of twenty-four patient advocacy organizations concerned with dermatologic conditions and with annual revenues over $500,000 found that seventeen (71%) received industry funding; four received donations of more than $800,000 (Li, Singer, and Mostaghimi 2019). This study also independently checked organizational boards and found that more than half (thirteen of twenty-four) had a current or former industry executive as a board member. 

Pharmaceutical industry funding of these groups often comprises a significant proportion of their total budget. For example, three-quarters of the Depression and Bipolar Support Alliance’s 2005 revenue was from fifteen major donors, twelve of which were drug or device companies (Marshall and Aldhous 2006, 20). Furthermore, sponsors made drugs that treated relevant conditions. Almost half of the Restless Legs Syndrome Foundation’s $1.4 million revenues came from GlaxoSmithKline ($450,000) and Boehringer Ingelheim (about $178,000): both companies manufacture restless legs syndrome drugs (Marshall and Aldhous 2006). 

The investigative magazine Mother Jones reported that, between 1996 and mid-1999, eighteen drug companies gave The National Alliance on Mental Illness (NAMI) $11.72 million, with the largest amount coming from Eli Lilly, the manufacturer of Prozac (fluoxetine) (Silverstein 1999). Several years later a committee headed by Senator Charles Grassley found that, between 2006 and 2008, NAMI received more than $23 million—three quarters of the organization’s budget— from pharmaceutical companies (Harris 2009). 

Industry funding of patient advocacy has become normalized. It is unclear how pharmaceutical funding became so widespread, but the phenomenon was well established by 2000 (Mills 2000). Some groups were funded in the early 1990s. In 1992, Burroughs Wellcome, the company that developed AZT (the first AIDS treatment), funded several AIDS groups. Project Inform, in San Francisco, and The New York-based Treatment Action Group (TAG), received $150,000 and $1 million, respectively (Epstein 1996, 299). Breast Cancer Action (BCA) received several small grants from pharmaceutical companies in the early 1990s, including $1,000 from Genentech, maker of Herceptin (Batt 2017), but in 1998, BCA established a policy that it would no longer take industry funds (Brenner 2000). ... As pharma funding became the norm, the debate about conflicts of interest entered the health policy and public discourse. Concerns include a) the lack of transparency and therefore public accountability with respect to funding, b) the loss of independence of the groups and the distortion of their agendas, and c) the ability of pharma-funded groups to dominate the discourse and override less resourced patient and health advocacy groups with traditional consumer rights perspectives. 

The following sample of the many studies and reports in the past fifteen years illustrate the three problems. 

Transparency and Public Accountability 

Many advocacy groups do not adequately acknowledge their corporate funders. An international study of groups in the United States, United Kingdom, Australia, Canada, and South Africa found that the extent of relationships with industry was inadequately disclosed in websites that addressed ten health conditions: cancer, heart disease, diabetes, asthma, cystic fibrosis, epilepsy, depression, Parkinson's disease, osteoporosis, and rheumatoid arthritis (Ball, Tisocki, and Herxheimer 2006). A U.S. study found that only one quarter of organizations that received Eli Lilly grants acknowledged the company’s contributions on their websites. One out of ten organizations acknowledged Eli Lilly as an event sponsor, and none disclosed the exact amount of the grant (Rothman et al. 2011). A study of 104 patient advocacy organizations found that although 88% published lists of donors on either their website or in their annual report, only 57% indicated amounts of the donations (half of these provided only ranges, not actual amounts). Only ten of 104 disclosed how funds were used (McCoy et al. 2017). A study of organizations in Washington, D.C., found that eighteen (31.0%) of the fifty-eight professional organizations and research, education, and advocacy organizations that received $25,000 or more in 2012 failed to disclose the names of corporate donors on their websites or in online 2012 annual reports (Borkowski et al. 2015). Only eight of forty organizations that disclosed provided the information both on their websites and in their online 2012 annual reports (Borkowski et al. 2015). 

In April 2018, Kaiser Health News launched the database “Pre$cription for Power” using IRS documents and reports from company websites to document payments from pharmaceutical companies to advocacy group (Kopp, Lupkin, and Lucas 2018). Although the database is incomplete, it is a start. 

Loss of Independence and Distortion of Agendas, Including Silence About Pharmaceutical Harms and High Prices 

In a report about industry funding of non-profits, Michael Jacobson, head of the Center for Science in the Public Interest, notes that “industry appears either to influence an organization's positions or to limit an organization's freedom to speak out on matters of interest to the funders” (Jacobson 2005). Instead of critiquing dangerous drugs or protesting high drug prices, patient groups argued for expanded access to expensive, sometimes minimally effective, treatments. 

Groups in partnerships with industry have been silent on drug harms and rising prices. The American Diabetes Association (ADA) takes more than a million dollars annually in support from Eli Lilly, Novo Nordisk, and Sanofi, the three top insulin manufacturers (Kopp, Lupkin, and Lucas 2018). In 2015, the ADA took $2.9 million from Eli Lilly alone. The ADA has not criticized any company for rising insulin prices. Additionally, when legislators in Nevada passed a bill in 2017 requiring insulin manufacturers to publicly disclose their profits to the public, the organization did not comment (Kopp, Lupkin, and Lucas 2018). 

Patient groups were also silent about the sudden rise in the price of EpiPens, automatic injectors used to treat severe allergic reactions. EpiPen manufacturer Mylan funds several advocacy groups, including Food Allergy Research & Education (FARE) and the Asthma and Allergy Foundation of America (AAFA). Both FARE and AAFA were silent about Mylan tripling the price of EpiPens. Neither advocacy group informed their members about the availability of less expensive epinephrine injectors or prefilled epinephrine syringes (Batt and Fugh-Berman 2016). In 2016, Mylan used the Allergy and Asthma Network and other advocacy organizations to campaign to add EpiPens to the federal preventive drug list (McCoy 2018); this would have eliminated patient copayments while leaving payers on the hook for an expensive device that contains two dollars worth of medication. In 2017, Mylan made about twelve billion dollars in revenue. 

In a third example, a coalition of advocacy organizations that hid their ties to the pharmaceutical industry opposed a demonstration project testing lower payment rates for some drugs covered by Medicare. The project would have reduced industry profits (McCoy 2018). A subsequent report by Public Citizen showed that industry funded 75% of the 147 organizations that signed at least one letter opposing the project (Public Citizen 2016). 

Some groups even oppose the provision of important safety information. NAMI, which receives three-quarters of its funding from industry, not only promoted its sponsor’s medications but opposed FDA black box warnings on serotonin reuptake inhibitor antidepressants that would have informed patients that the drugs increased the risk of suicide in adolescents (Rose 2013). 

Distortion of the Public Discourse 

Biologics, made from lab-altered cell lines rather than chemicals, are setting new price records. AbbVie, whose drug Humira makes up two-thirds of its revenue, gave $2.7 million to the Crohn’s & Colitis Foundation and $1.6 million to the Arthritis Foundation in 2015 (Kopp, Lupkin, and Lucas 2018). Humira, which treats autoimmune diseases, is the highest-grossing drug in the United States. Although the drug costs almost five thousand dollars a month, neither the Crohn’s & Colitis Foundation nor the Arthritis Foundation has protested its price. Moreover, both groups have raised non-evidence-based safety concerns about biosimilars (the biologics equivalent of generic drugs) and both belong to Patients for Biologics Safety and Access, a coalition that opposes pharmacist substitution of a biosimilar for a prescribed biologic. The coalition’s funders include AbbVie and Johnson & Johnson, a subsidiary of which, Janssen, makes the biologic Remicade. Although biosimilars would save money for patients and payers, the Arthritis Foundation has been a vocal supporter of state legislation that makes it more difficult for patients to receive biosimilars (Kopp, Lupkin, and Lucas 2018). Opposing, rather than supporting, biosimilar access is an excellent example of industry distortion of the public health discourse. 

The story has striking parallels to an account in the Canadian Globe and Mail about two projects in Canada on biosimilars involving patient groups that receive funding from biosimilar manufacturers. (Grant 2018). In 2016 and 2017, Crohn’s and Colitis Canada spearheaded a national letter campaign called “No Forced Switch.” Patients and their supporters bombarded officials across the country with 4,500 form letters that opposed compelling patients to switch to biosimilars. In March 2017, the Arthritis Society of Canada led a focus group project on biosimilars for members of patient advocacy groups, with funding from AbbVie and Janssen (the manufacturer of Remicade). A report from the focus group prepared for Health Canada (the Canadian regulatory equivalent of the FDA) said that patients “strongly opposed” switching from their brand-name drug to a biosimilar (Biosimilar Focus Group 2017). 

Upon seeing a draft report, one advocacy group withdrew its support, objecting to the fact that the findings aligned with the viewpoint of the drug companies. The group that withdrew from the report had previously received 90% of its funding from Janssen and AbbVie. In a stark example of the unspoken restrictions attached to pharmaceutical funding, Janssen subsequently rejected the group’s funding requests (Grant 2018).

Pseudolegalism

A UK 'Sovereign Citizen' judgment in Parker v McKenna & Anor [2015] NIMaster 1 provides a perspective on Australian judgments noted elsewhere in this blog (and in two forthcoming articles. 

The Court states

[35] Having reached a decision in respect of the application brought by the defendants, there is another matter which I need to address, namely whether I ought to bring this plaintiff to the attention of the Attorney General for Northern Ireland. The personal litigant's dilemma is often that he or she cannot afford to pay a legal team to represent them in legal proceedings and therefore has the unenviable task of self-representation. This is not an easy task for the untrained. It often leads to many errors. In this case, for example, the plaintiff relies on what he describes as section 30 of the Supreme Court Act 1981. Unfortunately for him, although certain parts of that Act do apply to Northern Ireland, the majority of the Act, including the section that the plaintiff wishes to rely on, does not. (This is by virtue of section 153 of the Act.) That the plaintiff was relying on an out of date textbook or unreliable internet resources is indicated by the fact that the Supreme Court Act 1981 has now, for over a decade, been renamed the Senior Courts Act 1981 following amendment by Schedule 11 to the Constitutional Reform Act 2005. The legal forest is difficult terrain for the untrained. 

[36] However I have concerns with the manner in which this particular plaintiff conducts his litigation which go beyond the difficulties experienced by all legally unqualified personal litigants. While listening to his submissions I was reminded of Chief Justice Rooke's judgment in the Canadian case of Meads v Meads [2012] ABQB 571. In his extensive and detailed written judgment the Chief Justice explains that the court has developed a new awareness and understanding of a particular category of vexatious litigant. They describe themselves in a variety of ways, sometimes, for example, as "Freemen" or "Freemen-on-the-Land". The Chief Justice, in the absence of what he considers to be a better description, terms them "Organized Pseudolegal Commercial Argument litigants" or "OPCA litigants". He explains that these persons employ a collection of techniques and arguments promoted and sold by others to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals. He notes that in Canada over a decade of reported cases have proven that the individual concepts advanced by such litigants are invalid. In his judgment he then goes on to categorise these schemes and concepts, identify defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. 

[37] According to Meads v Meads this category of Canadian litigation traces back to the late 1990's, representing the spread of concepts that emerged much earlier in the United States. Although the judgment identifies reported caselaw that comments on OPCA litigants, OPCA gurus, and their misconduct, Chief Justice Rooke observes that the reported caselaw is the proverbial tip of the iceberg. The vast majority of encounters between the courts and OPCA litigants are not reported. Such litigants and their schemes have been encountered in almost all areas of law. They appear in chambers, in criminal proceedings, initiate civil litigation based on illusionary rights, and attempt to evade court and state authority with procedural and defence-based schemes. 

[38] Meads v Meads states that the strategies of these litigants as brought before the Canadian courts have proven disruptive, inflict unnecessary expense on other parties, and are ultimately harmful to the persons who appear in court and attempt to invoke these vexatious strategies. Because of the nonsense they argue, such litigants are invariably unsuccessful and their positions dismissed, typically without written reasons. Nevertheless, their litigation abuse continues. 

[39] The decision in Meads v Meads is worthy of mention because the litigation involving the plaintiff in this case possesses a number of features which caused concern to Chief Justice Rooke : 

Names 

[40] Chief Justice Rooke observes that the vast majority of such litigants use highly stereotypic formats to name and identify themselves. The most common form adds atypical punctuation, usually colons and dashes, into a name. Any litigant who uses this dash/colon motif almost certainly, in the view of Chief Justice Rooke, has some kind of OPCA background. Such litigants have argued that a person is immune from court action if that person identifies himself by an entirely different name; that structuring a name in a format which includes a colon between the first name and surname means that one is a separate person from the person whose name is similar but does not have the insertion of a colon; that structuring a name in the format for example [John] of the [family] of [Sargent] means that he is a separate person from "John Sargent". Further, a capital letter version of the name is some kind of non-human thing, while the lower case name is the "flesh and blood" aspect of the litigant. It appears that the use of duplicate names is usually an indication that the OPCA litigant has adopted a "double/split person" strategy. 

[41] I have already referred to the fact that the plaintiff refers to himself in the writ before me as "The Man Known as Anthony : Parker". He also refers to himself as "a living man known as Anthony of the family parker". In addition his writ refers to himself in three places by a lower case "i". The same features are also present in the writ against Master Ellison and Mr Justice Deeny. 

Oaths and qualifications 

[42] Chief Justice Rooke notes that Freemen litigants will typically make certain demands including demands to see the oath of office of a judge, lawyer, or court official; that a judge prove his or her appointment; that the judge make certain oaths or statements, such as that the judge is a public servant; that an opposing party provide proof that it has authority to proceed against the OPCA litigant; or for a certified copy of a document or legislation. 

[43] In the current application before me the plaintiff challenged Mr Cush's right to appear on behalf of the defendants. He wanted proof that he was entitled to do so. In a previous application before me, the plaintiff requested that I state whether or not I was acting under my judicial oath. 

[44] I note that in his judgment in Santander (UK) PLC v Anthony Parker [2012] NICh 6 Deeny J stated : "He objected to the solicitors acting and to counsel acting because counsel had not produced his "power of authority" or his law licence to practice in Northern Ireland. I reject those submissions. Needless to say no power of authority is required and counsel is well known to the court as a member, indeed a leading member of the Chancery junior bar." 

[45] I also note that in his judgment in Santander (UK) PLC v Anthony Parker (No 2) [2012] NICh 20 Deeny J stated : "When I sat in this matter initially today he showed an obstructive approach to the conduct of the hearing which was followed by a demand to see my oath of office as a judge which was unlikely to be appropriate in any event but utterly inappropriate when I was dealing with a matter remitted from the Court of Appeal and this was followed by direct defiance of the orders of the court constituting, subject to any submissions which I will hear after this judgment, a contempt in the face of the court." 

Consent to Obligations 

[46] In Meads v Meads Chief Justice Rooke stated that a common belief expressed by Freemen litigants is that all legally enforceable rights require that a person agree to be subject to those obligations. This strategy takes two closely related forms. Firstly, every binding legal obligation emerges from a contract and, secondly, consent is required before an obligation can be enforced. Litigants who advance this concept extend it to interactions between state actors, including Canada and the provinces, and individual persons. This is what Chief Justice Rooke describes as a kind of "magic hat". The OPCA litigant says he or she has not agreed to be governed or subject to court authority, and the OPCA litigant is therefore allegedly immune. 

[47] A necessary first step in any "everything is a contract" or "consent is required" scheme is that the OPCA litigant develops a mechanism that denies a unilateral obligation can arise from legislation. Some OPCA litigants argue they have opted out of legislated obligations. Others simply claim consent is required, otherwise legislation is a set of optional guidelines. 

[48] In his affirmation before me in these proceedings the affirmation sworn by the plaintiff contains the following : "18. Legislative Acts confer how duties and obligations are applied to Government Officers, legal fictions and persons. 19. I do not consent to legislative Acts." 

Jurisdiction 

[49] Chief Justice Rooke observes that OPCA litigants frequently deny that a court has jurisdiction or authority over them and this emerges in a number of ways including in a statement or declaration that the litigant is only subject to a specific category of law, most often expressed as "natural law" or "the common law". I observe that the plaintiff's affirmation before me included the statements : "I claim that I have not had a jury of my peers under common law. I claim that any instruments that the man known as Ian McKenna, here after referred to a Ian used on behave of and THE ENFORCEMENT OF JUDGMENTS OFFICE, hereafter referred to as EJO, did not come from a common law court." 

[50] I also observe that Deeny J in his judgment in Santander (UK) PLC v Anthony Parker [2012] NICh 6 stated : "He takes the point that this matter should be adjudicated on by Sir Christopher Geidt, Private Secretary to Her Majesty The Queen. He says that on foot of Clause 45 of the Magna Carta of 1215, which in the version advanced by him reads: "We will appoint as justices, constables, sheriffs or other officials only men that know the law of the realm and are minded to keep it well." Of course I have the privilege to serve as one of Her Majesty's justices and sit here to do justice as envisaged by Magna Carta rather than Sir Christopher whom, while I am sure a person of distinction, is not so far as I am aware a judge or lawyer." 

[51] In the same judgment Deeny J makes reference to the following point which was raised by the plaintiff who now appears before me : "Since I am a living man, I operate under a foreign jurisdiction to the legal system. I already tried this case in my private foreign jurisdiction court, and find Santander in default judgment. Since Santander was found in default judgment in my private foreign jurisdiction court, Master Ellison, under the rules of the Hague Convention on foreign judgments and civil and commercial matters, should have respected that judgment." Deeny J unsurprisingly found that this was a wholly misplaced submission without foundation. 

[52] I also note that in his affirmation before me the plaintiff states : "I do not consent to any court other than a common law court nor to any Judge that does not act upon his Oath of Office and will seek remedy if these terms are not met." and "I wish to exercise my right to challenge the validity of court documents by subpoenaing Master Ellison, Judge Deeny and the court transcripts in order to ascertain : A) If the instruments used by Ian, EJO and Katrina are fraudulent. B) If they come from a court that had jurisdiction." 

Conclusion 

[53] In Master McCorry's decision in the case of The Man known as Anthony Parker v The Man known as Master Ellison and the Man known as Donnell Justin Patrick Deeny (Unreported, 16 April 2014) Master McCorry concluded that the plaintiff's arguments largely consisted of : "a kaleidoscope of pseudo legalistic jargon, alien to law, practice and the administration of justice in any modern common law jurisdiction and in short is largely nonsense." I entirely agree with that assessment. 

[54] In summary, the proceedings before me represent the third Writ issued by this plaintiff which the courts have struck out as, inter alia, vexatious and an abuse of the process of the court. Furthermore, there are specific features of the plaintiff's arguments and practice which give me cause for concern. Whether the plaintiff is a vexatious litigant is not a matter for me to decide. However, without doubt the plaintiff is a litigant who persistently attempts to use arguments which have been found by various members of the judiciary to be utterly untenable. I have therefore decided that I will draw this plaintiff to the attention of the Attorney General for Northern Ireland so that the Attorney can consider whether it is appropriate to make an application under section 32 of the Judicature (Northern Ireland) Act 1978 for him to be declared a vexatious litigant by a judge of the High Court. I will therefore direct that a copy of this judgment shall be sent to the Attorney General.

In Foster v McPeake & Ors [2015] NIMaster 14 the Court states

 [20] It is necessary to observe that the application before me possesses a number of features which I referred to in my judgment in The Man Known as Anthony : Parker v The Man Known as Ian McKenna And The Enforcement of Judgments Office [2015] NIMaster1. In that judgment I referred to a decision by Chief Justice Rooke judgment in the Canadian case of Meads v Meads [2012] ABQB 571. In his extensive and detailed written judgment the Chief Justice explains that that court has developed a new awareness and understanding of a particular category of vexatious litigant. They describe themselves in a variety of ways, sometimes, for example, as "Freemen" or "Freemen-on-the-Land". The Chief Justice, in the absence of what he considers to be a better description, terms them "Organized Pseudolegal Commercial Argument litigants" or "OPCA litigants". He explains that these persons employ a collection of techniques and arguments promoted and sold by others to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals. He notes that in Canada over a decade of reported cases have proven that the individual concepts advanced by such litigants are invalid. In his judgment he then goes on to categorise these schemes and concepts, identify defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. 

[21] The application in the case before me has a number of these features. Firstly, the plaintiff uses an odd mode of identification. His Statement of Claim states "I, greg of the family foster (as commonly called), being the undersigned, do solemnly swear, declare and depose that I am not the all capitalised name 'GREG FOSTER' defined to take advantage of by diminishing my status to Roman civil officer subject to Roman civil codes." I put it to him that he presumably did not introduce himself socially as "Greg Foster, a man and one of the people" and that the reason he asked me to refer to him as "Greg" in court was that he believed he obtained some sort of legal benefit thereby. He agreed. 

[22] Secondly, the plaintiff stated that he was not bound by statute law passed by Parliament unless either he consented to it or an act contrary to a statute caused hurt or injury to another person. His affidavit states, inter alia, "the law of statutes is the law of contract"; "a statute is a legislative rule of society given the force of law by the consent of the governed. (I am not legally qualified to interpret statute and do not give my consent either tacitly or otherwise)"; "enforcing statute on a man without his consent, when he has caused no harm or broken no contract is slavery"; and "presuming millions of statute liabilities are attached to a man from birth, without his knowledge or consent is morally wrong and classed as slavery." 

[23] Thirdly, although he did not go as far in his submissions as to say that he believed that the court had no jurisdiction over him, his statement that he was sovereign amounts to a similar position. His Statement of Claim states : "as one of the people I do not yield my sovereignty to the agencies of government that serve the people." 

[24] In Master McCorry's decision in the case of The Man known as Anthony Parker v The Man known as Master Ellison and the Man known as Donnell Justin Patrick Deeny (Unreported, 16 April 2014) Master McCorry concluded that the plaintiff's arguments largely consisted of : "a kaleidoscope of pseudo legalistic jargon, alien to law, practice and the administration of justice in any modern common law jurisdiction and in short is largely nonsense." That assessment is apposite to the arguments made by the plaintiff in this case. The Freeman approach has been considered in legal literature in recent years and been described as a "delusional approach to legal issues" ("Land of the Free, Home of the Deluded", Rooney, K., Irish Law Society Gazette, April 2012, p 12.) which arises from a "murky pseudo-legal world" ("Freeman on the Land and Other Organised Lay Litigant Groups – Part 2", Keys, T., [2014] Commercial Law Practitioner). It has proved difficult to discover any case in which any court in any jurisdiction has found the arguments to be meritorious.

Comparative Data Portability

'The Portability and Other Required Transfers Impact Assessment: Assessing Competition, Privacy, Cybersecurity, and Other Considerations' - 124 pages from Peter Swire - is of interest to Australian Consumer Data Right, telecommunications and privacy scholars.

Swire comments 

The goal of this article is to provide a framework for assessing issues of data portability and other required transfers of data. Greater portability and other required transfers of data can have pro-competitive effects – if more companies have access to commercially valuable data, then there can be less monopoly power and more innovation. On the other hand, making portability too easy can lead to serious privacy and cyber-security effects, when the “wrong” people gain access to personal data. There is thus a tension between opening data flows, to promote competition and innovation, provide user control, and for other reasons, and closing data flows, for reasons including protecting privacy and cyber-security. 

Part I explains that “portability” has become a technical legal term for transfers of an individual’s data. “Other Required Transfers” are mandated transfers for two or more people, so “PORT” is the general term for Portability or Other Required Transfers. 

Part II examines three major trends causing increased importance for PORTability issues: (1) the individual right to data portability that took effect in the EU in 2018 and California in 2020; (2) the current, intense policy debates about whether and how to regulate the largest digital platforms; and (3) beyond digital platforms, important sectors of the economy increasingly have PORTability requirements. 

Part III proposes a Portability and Other Required Transfers Impact Assessment, or PORT-IA. The approach is similar to Privacy or Data Protection Impact Assessments. The PORT-IA sets forth 14 “Structured Questions,” with detailed sub-parts. 

Part IV and the appendices present seven case studies:

(1) U.S. and EU phone number portability; 

(2) the new U.S. health care interoperability regulation; 

(3) EU portability requirements concerning health care data; 

(4) the EU Payment Services Directives; 

(5) U.S. financial services requirements under Section 1033 of the Dodd-Frank Act; 

(6) Open Data requirements for government agencies; and 

(7) lesser-known recent laws in Arizona and other states mandating portability for the data of automobile dealers.

Each case study maps the mandated data flows: where does the data originate; where does it go; what types of data are covered; and what precisely are the legal requirements. Each case study then examines: the benefits of the PORT initiative; the risks and costs of the PORT initiative; and lessons learned. 

Part V of the article “shows the work” for developing the Structured Questions for the PORT-IA. The Structured Questions evolved considerably during research on the case studies, and the current version of the Structured Questions has been validated by being tested against case studies across diverse sectors, data type, and geography. 

The intent of the article is to create a coherent intellectual framework for assessing proposed PORTability initiatives. The PORT-IA, with its Structured Questions, can assist policymakers in deciding whether and how to mandate PORTability. The PORT-IA can similarly assist companies in deciding whether and how to implement new PORTability features in their products and services. More broadly, the article shows the importance of multi-disciplinary assessment of proposals for portability and other required transfers.

Aged Care and COVID-!9

Today's Special Report on COVID-19 by the Aged Care Royal Commission features the following comments 

 In the confines of the inquiry we were able to conduct, we have concluded that there are four areas where immediate action can and should be taken to support the aged care sector:

• First, the Australian Government should fund providers to ensure there are adequate staff available to deal with external visitors so that the Industry Code for Visiting Residential Aged Care Homes during COVID-19 (Visitation Code) can be modified to enable a greater number of more meaningful visits between people receiving care and their loved ones. 

• Second, the Australian Government should create Medicare Benefits Schedule items to increase the provision of allied health and mental health services to people living in residential aged care during the pandemic to prevent deterioration in their physical and mental health. Any barriers, whether real or perceived, to allied health and mental health professionals being able to enter residential aged care facilities should be removed unless justified on genuine public health grounds. 

• Third, the Australian Government should publish a national aged care plan for COVID-19 and establish a national aged care advisory body. 

• Finally, the Australian Government should arrange for the deployment of accredited infection prevention and control experts into residential aged care homes. 

The associated recommendations are 

Recommendation 1 

The Australian Government should report to Parliament by no later than 1 December 2020 on the implementation of these recommendations. 

Recommendation 2 

The Australian Government should immediately fund providers that apply for funding to ensure there are adequate staff available to allow continued visits to people living in residential aged care by their families and friends. 

Recommendation 3 

The Australian Government should urgently create Medicare Benefits Schedule items to increase the provision of allied health services, including mental health services, to people in aged care during the pandemic. Any barriers, whether real or perceived, to allied health professionals being able to enter residential aged care facilities should be removed unless justified on genuine public health grounds 

Recommendation 4 

The Australian Government should establish a national aged care plan for COVID-19 through the National Cabinet in consultation with the aged care sector. This plan should:

• establish a national aged care advisory body 

• establish protocols between the Australian Government and the States and Territories based on the NSW Protocol but having regard to jurisdictional differences 

• maximise the ability for people living in aged care homes to have visitors and to maintain their links with family, friends and the community 

• establish a mechanism for consultation with the aged care sector about use of Hospital in the Home programs in residential aged care 

• establish protocols on who will decide about transfers to hospital of COVID-19 positive residents, having regard to the protocol proposed by Aged and Community Services Australia  

• ensure that significant outbreaks in facilities are investigated by an independent expert to identify lessons that can be learnt. The results of any such investigations should be promptly disseminated to the sector. 

Recommendation 5 

All residential aged care homes should have one or more trained infection control officers as a condition of accreditation. The training requirements for these officers should be set by the aged care advisory body we propose. 

Recommendation 6 

The Australian Government should arrange with the States and Territories to deploy accredited infection prevention and control experts into residential aged care homes to provide training, assist with the preparation of outbreak management plans and assist with outbreaks.

Requiem

In Bell Group (UK) Holdings Limited (In Liquidation) [2020] WASC 347 - distinguished with the catchword 'Corporations law - Ode' - Master Sanderson states 

These reasons are not so much a judgment as a requiem. ... Thousands of people worked on this case. Most have put the experience behind them and moved on; many, shattered by the experience, have retired; more than a few have gone mad. Now the guns have fallen silent. The smell of cordite, gun powder and napalm no longer fills the air. The dead and wounded have been removed from the battle field. The victors have divided the spoils and departed. 

The trial involving this company, and others, lasted for 404 days between July 2003 and September 2006. The judgment took two years and ran to 2,643 pages. The trial judge was Justice Neville Owen. No Australian judge before or since could have handled the case better than his Honour. Anyone who dips into the judgment – and I do not for a moment suggest anyone should read it in its entirety – will be struck by the detailed consideration of the evidence, the careful balancing of the issues and the clear exposition of a difficult area of the law. 

The defendants in the action were a group of banks. At first instance they were held liable. They appealed. Not only did they lose the appeal, they lost the cross-appeal and the amount of damages was increased. The banks made an application for special leave to appeal to the High Court. Astonishingly, they were successful. At this point even the bare-knuckled litigators were exhausted. The action was settled. More than a billion dollars was to be divided between the plaintiffs. 

The plaintiffs then set to squabbling among themselves. For years they had an uneasy relationship with one another but were united against a common foe. Now the prospect of vast riches proved too much. The relationship rapidly became poisonous. Years passed and no resolution proved possible. The battle lines were drawn. The State government attempted to resolve the matter by effectively confiscating the proceeds of the case and paying to each of the parties what they deemed to be a fair entitlement. This strategy failed spectacularly – the legislation was struck down by the High Court. At a directions hearing, not long after the High Court decision, I was told by counsel they anticipated the trial of the issues between the plaintiffs would take longer to hear than the original case. A date was set for trial. Then someone blinked. Further negotiations took place. Mercifully, the matter settled. 

Over the years, I dealt with the case on more than a dozen occasions. Most of these hearings were for judicial directions. It was clear there existed between counsel a mutual loathing. That was probably due to frustration – not only frustration with the glacial progress of the case, but frustration with the clients. Occasionally, agreement was reached – the time of the day, the day of the week – but agreement was otherwise rare. Invariably, the liquidator was represented by Vaughan SC (as his Honour then was). There were times when I thought even his sphinx-like visage would crack. But somehow, the matter edged forward. Now it is settled and it remained for me to give this, and other companies in the group, a decent burial. 

It was tempting to drive a wooden stake through the heart of the company to ensure it does not rise zombie-like from the grave. As an alternative, I considered ordering the files be removed to a secure facility in Roswell and marked: 'Never to be opened'. In the end, trusting in divine providence, I made the following orders ...

Patents Accessibility Review

The Patents Accessibility Review Discussion Paper from the Department of Industry, Science, Energy and Resources (aka the Mortley Review) states 

 The Australian Government recently agreed to a review of the patent system, specifically with a view to its accessibility and usefulness for small to medium enterprises (SMEs). Since you have an involvement in the area, may I request that you kindly consider making a submission on the following consultation questions? I am the appointed reviewer, and would greatly value your input. The use of the patent system is vitally important to the development of Australian intellectual property (IP) for the innovation sector, and the revival of our manufacturing industry. Some changes to the patent system have been made as a result of widespread consultation undertaken by several bodies over the last eight years. Following these changes, the Government is seeking to ensure that the patent system represents an accessible and valuable resource for the Australian public, but in particular the SME sector.

The 'Principal issues for clarification ' are

1. The cost of applications for patents: [Mortley has been consulting on the IP Australia processing charges and the question of professional fees levied by IP lawyers or patent attorneys]. 

2. The processing times of patent applications. 

3. The value and degree of helpfulness of the advice provided by the Australian Government with respect to the patent application process. 

4. The general awareness of the patent application process. 

5. The cost and times required to enforce standard patents. 

6. Other barriers or impediments preventing Australian SMEs filing and obtaining patents. 

7. The usefulness of Australian Government programs to assist Australian SMEs seeking patent protection, including protection overseas.

The Consultation Questions are summarised as - 

Question 1: Are the official fees set by IP Australia a barrier for SMEs? 

Question 2: Are the professional fees for patent attorneys and IP lawyers a barrier for SMEs? Are professional fees good value for money? 

Question 3: Are IP Australia’s processing times reasonable, noting that expedited examination is available? 

Question 4: Is the support offered by the Australian Government on patents useful for SMEs? How can these resources better reach SMEs? 

Question 5: Is the fear of litigation putting small businesses off patenting? 

Question 6: Is the fear of litigation well founded? Is enforcement actually that difficult and expensive? 

Question 7: How could enforcement be made more accessible? Is it possible for costs to be contained at certain points? 

Question 8: How and when can SMEs best be encouraged to consider patents as part of their commercialisation and broader IP plans? 

Question 9: Do you have any other comments on the issues raised in this paper, or on any other barriers that may hinder SMEs from accessing the patent system? Do you have any other suggestions for initiatives to improve accessibility?

Sentencing for assaults on public officers

The Queensland Sentencing Advisory Council report Penalties for assaults on public officers refers to the expectation of the community and government that public officers should not be the subject of assault during the execution of their duties, and the need for public officers to have confidence that the criminal justice system properly reflects the inherent dangers they face. 

 The report states 

'Public officer’ was defined for the purposes of the review to include police and other emergency service workers, corrective services officers, and other public officers engaged to perform public duties on behalf of the State of Queensland. Its meaning as this applies to offences charged under section 340(2AA) of the Criminal Code (Qld) and whether its scope should be expanded was a key focus of the review. 

The Council’s analysis was limited to assaults and assault-related offences that could be readily identified as involving a public officer victim. Fatal assaults and sexual assaults were scoped out on the basis that these were not the intended focus of the current review. Limited analysis of other offences charged was undertaken based on data provided by the Queensland Police Service (QPS), Queensland Corrective Services (QCS) and the Department of Youth Justice. ... 

It goes on to state 'the case for reform' - 

Section 340 — broad in scope, confused in focus, and with overlapping provisions

The main focus of this review has been on the offence of serious assault under section 340 of the Criminal Code as this applies to assaults on public officers. 

Section 340 makes certain kinds of assaults against certain people a more serious offence than assaults committed on other people that are charged, for example, as a common assault or assault occasioning bodily harm (AOBH). It relies on the same definition of ‘assault’ as for these other offences, but, unlike the other Code offences, applies higher maximum penalties based on specific scenarios and victim characteristics. Serious assault formed part of the original 1899 Criminal Code and was initially classified as a misdemeanour carrying a maximum penalty of 3 years. It applied in six different specified circumstances including assault of a police officer while acting in the execution of his or her duty, or any person acting in aid of a police officer while so acting, and assault of any person on account of any act done by that person in the execution of a duty imposed by law. 

From 1988 to 2020, there have been 16 amending Acts making changes of substance to this section, including: • the reclassification of serious assault from a misdemeanour to a crime; • an increase in the maximum penalty from 3 years to 7 years; • the extension of the section to assaults on victims aged 60 years or older, as well as those who rely on a guide, hearing or assistance dog, wheelchair or other remedial device; • the insertion of a separate subsection (s 340(2AA)) targeted at assaults on ‘public officers’; and • the introduction of circumstances of aggravation, such as biting, spitting on, and throwing bodily fluids or faeces at a victim, or causing bodily harm, to which a 14-year maximum penalty applies. This was initially limited to assaults on police but was later extended to assaults on public officers and, much more recently, to assaults by prisoners on corrective services officers. 

The many amendments have resulted in an offence provision that is very broad in scope, capturing assaults both on victims who are vulnerable due to their occupation or the functions they are performing, and those whose vulnerability arises from their age and/or physical disability, and applying both to assaults as well as to acts of obstruction. 

There is significant overlap in the conduct and victim classes captured across the various subsections of section 340 as these apply to public officers. For example, charges of assault on police are most commonly charged and sentenced under section 340(1)(b), but also found among cases dealt with under sections 340(1)(a), (c), (d) and (2AA). The existence of a separate subsection dealing with assaults by prisoners on corrective services officers (s 340(2)) also gave rise to confusion about whether assaults on corrective services officers involving circumstances of aggravation could be charged under section 340(2AA), which applies to the broader category of ‘public officer’. This has led to recent amendments to this subsection to import the same circumstances of aggravation into section 340(2). 

Given these many overlapping provisions, the problem of ensuring people are correctly charged, identified by the Court of Appeal in 1995 and well prior to a number of these changes, has probably become even more pronounced. 

Another issue raised with the Council has been the uncertainty about the definition of a ‘public officer’ and what categories of officers are, and are not, included within its scope. 

The many amendments made over time, and uncertainty about definitional issues, has resulted in a provision that the Council considers is confused, awkwardly structured, and unclear in its intention and focus. This lack of clarity, in the Council’s view, has contributed to unhappiness by some groups that they are not expressly named, and by implication, excluded from its scope. 

Taking these problems into account, the Council’s view is that those falling within section 340 need to be more clearly and narrowly defined so the application of this provision more closely reflects the section’s original intention. The Council’s recommendations are set out in Chapter 8. 

Making clear to the public the aggravating nature of offences committed on workers providing essential public services to the community 

Many of those who are vulnerable to assault due to their occupation or working environment do not meet the current definition of ‘public officer’ for the purpose of section 340. For example, they may provide services to the public in a private capacity or be engaged as a contracted service provider. This includes a wide range of people from service station attendants, to bus drivers, taxi drivers and others in the transport industry, private security guards, general practitioners, and other health-service providers. In circumstances where an assault occurs, a charge must instead be brought under one of the offence provisions available under the general criminal law, such as common assault (Criminal Code, s 335) and AOBH (Criminal Code, s 339). 

However, the fact that there is no special offence (such as serious assault) established to reflect the special vulnerability of these specific victim classes does not prevent a court from taking this factor into account in sentencing. Sentencing courts have always taken relevant common law circumstances of aggravation into account, unless legislation displaces their ability to do so. Given the broad features of section 9(2) of the Penalties and Sentences Act 1992 (Qld) (PSA) (which applies to any sentence)2 and judicial discretion, the fact that a person was assaulted while doing his or her job, if relevant, will be considered. 

The Court of Appeal has made repeated statements recognising the need for deterrence, denunciation and a salutary penalty in the case of assaults of police, the interests of protecting them and their authority, and reflecting community support for them. It has made similar comments in relation to offences against specific classes of victim including railway guards, court clerks, corrections officers, and local council officers. 

The Court of Appeal has further long acknowledged that some groups of people in regular contact with the public in the course of their employment are at increased vulnerability, such as taxi drivers,8 service station attendants and convenience or takeaway store staff, and that this should be reflected in the sentence imposed. The Court has recognised such workers (often working night shifts, sometimes alone) as a vulnerable cohort, serving the community while at risk of attacks that can cause physical and psychological harm. It has restated the importance of deterrence in sentencing and made strong statements to this effect for at least the last 25 years. 

One benefit of the flexibility under existing law is that courts have the ability to recognise new categories of workers without the need for legislative change. As one example, the introduction of rideshare services means the risks that once applied primarily to taxi drivers now apply to a new category of worker. The advent of the COVID-19 pandemic in more recent months has heightened awareness of the risks of assault posed to retail workers, which may not only result in physical injury but also the fear of contracting what is a highly transmissible and potentially deadly virus. 

The difficulty, however, is that the increased seriousness with which assaults on specific workers are viewed may not always be clear to members of the public, or to those workers who may feel vulnerable to such assaults. This is because, rather than pointing to a specific offence that carries a high maximum penalty, it relies on the public and workers in these industries being aware of how courts apply the general provisions contained in the PSA and the common law. 

During this review, there were a number of industries strongly advocating for their workers to be included within the scope of section 340 on the basis that a higher maximum penalty applies to these assaults. This provides some evidence of a belief among some workers and in some industries that the fact an assault has occurred at work will not be treated as more serious unless it is expressly stated to be so. The Council considers the best way to address this problem is through the introduction of a new aggravating factor, which would make the increased seriousness of assaults that occur in this context clear. This is discussed in Chapter 10 of the Council’s report. 

Achieving greater uniformity in summary assault and obstruct provisions 

The Council was asked to consider whether to retain separate summary offences that can be charged in circumstances where a public officer has been assaulted, with express reference being made to section 790 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) and section 124(b) of the Corrective Services Act 2006 (Qld) (CSA). 

There are over sixty other Queensland Acts that carry offence provisions relating to persons acting in roles such as ‘authorised officers’. They target assault and various acts including wilful obstruction, intimidation and attempts (‘obstruct’ is defined under a number of provisions as including assault). Many of these provisions state this conduct is an offence ‘unless the person has a reasonable excuse’. 

The maximum penalty for these summary offences ranges from a modest fine to a large fine or period of imprisonment (for example, 2 years under section 124(b) of the CSA). 

There was strong support for the retention of summary offences as an alternative to charging the more serious offence of serious assault under the Criminal Code. However, there is a clear lack of uniformity in the wording of these provisions and in the penalties that apply. 

Better responses to victims 

Through the consultation process, the Council learned that the nature and impacts of occupational violence vary from industry to industry, and from organisation to organisation as do the institutional responses. In consulting with individuals and organisations, it became evident that occupational violence is a workplace health and safety concern for many industries. 

The Council found some groups, such as police and corrective services officers, are more comfortable reporting an incident of violence at work than other groups, such as teachers and health workers. The reasons for this are complex, and in many cases, industry-specific. Concerningly, many victims of assault who shared their stories through their organisations or directly with the Council reported they did not have a positive experience with the criminal justice system. This not only referred to the quality of information provided, and to delays in having matters finalised, but in some cases to disappointment with the sentencing outcomes. 

The Council considers there are opportunities to improve current justice system responses. This includes ensuring victims have access to appropriate support and information and are given the opportunity if they choose to do so — and where this is considered appropriate — to participate in alternative justice processes to better meet their needs. 

How frequent are assaults on public officers and what offences are charged? 

Chapter 2 reports on the Council’s findings about the frequency of assaults on public officers, whether WorkCover claims are pursued, and the number of sentenced cases involving a charge of serious assault or summary assault offence. 

Agencies in the health sector record the highest number of assaults, but only a small number result in a claim for compensation. In contrast, police officers, corrective services officers, and youth detention staff have higher rates of compensation claims following an assault. Over the period 2009–10 to 2018–19, there were 10,194 sentenced cases involving a serious assault. In 7,932 of these cases, serious assault was the most serious offence (MSO) sentenced. 

The most common type of serious assault involves assault of a police officer, comprising 65.4 per cent of cases, although the number of these cases has decreased over the past five years. 

The lesser summary offence of assault or obstruct a police officer under section 790 of the PPRA was sentenced in 85,434 cases over the 10-year period, although the number of these cases has decreased considerably over this time. Acts of assault formed the basis of 16.0 per cent of these sentenced charges, compared with 89.9 per cent that involved an act of obstruction (approximately 10% of cases involved acts of both assault and obstruction, which were counted twice). 

There are over sixty other summary offences identified throughout various pieces of legislation that involve acts of assault, obstruction, hindering or resisting a public officer. These were sentenced in 1,553 cases over the 10-year data period. 

Who is involved in assaults on public officers and who reoffends? 

Chapter 3 considers who commits assaults on public officers and the profile of victims. Serious assaults of public officers are most commonly committed by men (66.6%), and by non-Indigenous people (61.7%), with an average age of 28.8 years. Aboriginal and Torres Strait Islander peoples are overrepresented among those sentenced for serious assault of a public officer, with men being sentenced at a rate 16 times greater than their non-Indigenous counterparts, and women being sentenced at a rate 12 times greater than non-Indigenous women. 

Police officers are the most common public officer victim of serious assault, followed by paramedics, detention centre staff, and corrective services officers. Serious assaults of ‘public officers’ sentenced under section 340(2AA), (1)(c) and (1)(d) involve victims from a wide range of professions including paramedics, detention centre workers, medical/hospital workers, security guards, watch-house officers, transport officers, and child safety officers. 

Young people are most likely to be charged for assault of a detention centre worker or education worker, whereas adults are most likely to be dealt with for an assault of a paramedic or medical worker. Sentenced assaults of detention centre workers have increased over the 10-year period. 

Reoffending by commission of the same offence is most common for those convicted of serious assault of a corrective services officer under section 340(2) or for assault or obstruct police under section 790 of the PPRA, with about one in five offenders being sentenced for the same offence within a two-year period. 

Across all victim categories, people sentenced for serious assault of a public officer and for assault or obstruct police or corrective services staff are more likely to be sentenced for another offence of violence than those sentenced for AOBH (aggravated, 31.1% and non-aggravated 28.3%), common assault (31.3%), wounding (22.1%) or grievous bodily harm (GBH) (22.2%). Aboriginal and Torres Strait Islander peoples have higher levels of recidivism, with a higher proportion of them committing repeat offences, as well as other violent offences. Men have higher levels of recidivism compared to women for offences involving the assault of a public officer; although these gendered differences are less pronounced, and in some cases reversed, for assaults that do not involve a public officer. 

What are the circumstances in which public officers are assaulted? 

In Chapter 4, the Council draws on a variety of sources to identify some of the factors that may contribute to assaults on public officers and help to explain the context in which this offending occurs. 

Based on the Griffith Criminology Institute’s literature review, assaults of public officers are more likely in particular circumstances or conditions, such as: • perpetrators involved in substance abuse, at least in the healthcare sector; • perpetrators with poor mental health, across a number of sectors; • perpetrators with a current or past history of violent behaviour; • officers with less experience on the job; • operational workplace characteristics, which may vary by sector (such as understaffing in the healthcare sector, and ticketing and timetabling issues in the public transit sector). 

A sentencing remarks analysis undertaken by the Council based on a sample of 276 serious assault cases sentenced in the higher courts found differences based on the gender and Aboriginal and Torres Strait Islander status of the offender. Spitting was more common for women, whereas physical assaults such as kicking, punching or pushing were more common for men. The majority of offenders were described as being ‘uncooperative’ or ‘aggressive’ while committing the offence. Assaults most commonly occurred while the offender was being arrested, restrained, or resisting the direction of a public officer. Half of the women, and one-third of Aboriginal and Torres Strait Islander men were under the influence of drugs or alcohol. One-third of offenders had mental health problems — particularly non-Indigenous women. 

An analysis of associated offences (committed during the same incident as an assault of a public officer) found that assaults of corrective services officers are the least likely to have another offence charged. The serious assault of a police officer is the most likely to have multiple counts of the same offence arising out of the same incident — particularly for cases involving male offenders. Public nuisance is the most commonly associated non-violent offence, and most common for Aboriginal and Torres Strait Islander women. 

Since their introduction, aggravating circumstances have been present in approximately 59.0 per cent of serious assault cases involving a police officer and 45.0 per cent of cases involving a public officer. Bodily fluids are the most common aggravating circumstance, followed by bodily harm. 

Impact on victims 

Chapter 5 explores the impact of assaults on victims and their experiences of reporting an assault. The Council found the nature and impacts of occupational violence vary from industry to industry, and from organisation to organisation. Across all sectors, assaults have potential to result in far-reaching impacts on the life of the direct victim, on the victim’s family and on the victim’s future working life. This includes both physical and mental health impacts, with recovery that can be lengthy and highly individualised. They also have broader impacts on workplaces — for example, potentially leading to recruitment and retention challenges — and on the broader community. 

Improving institutional responses to better respond to victim needs is discussed in Chapter 11. 

Current sentencing framework and practices 

Chapter 6 explores the application of sentencing guidelines and principles set out in the PSA, and applied under the common law, as well as the range of sentencing options available to the courts. It discusses the application of these general principles to sentencing for serious assault, reviewing relevant Court of Appeal cases, including the relevance of mental illness, intoxication and a disadvantaged background. It notes the Court of Appeal’s recognition that serious assault ‘is an offence which can occur in circumstances of widely variable levels of criminality, ranging, for example, from physical acts of minor resistance to arrest through to deliberately dangerous, degrading or prolonged attacks’.9 For this reason ‘the range of appropriate sentences ... is inevitably very broad’. 

Chapter 7 presents the Council’s findings as to how assaults on public officers are dealt with by the courts based on sentencing data. Key findings include:

• The use of custodial penalties for assaults on public officers charged under section 340 of the Criminal Code, section 790 of the PPRA and section 12(b) of the CSA has increased over the past 10 years. 

• Almost all serious assaults of a public officer sentenced in the higher courts over the 10-year period examined resulted in a custodial penalty being imposed (90.6% of cases, MSO). In the Magistrates Courts, almost two-thirds of cases resulted in a custodial sentence (64.8%). 

• For adult offenders in both the higher and lower courts, imprisonment was the most common penalty type for serious assault offences analysed (MSO). 

• Suspended sentences were ordered in between 7.1 and 31.5 per cent of cases (MSO), depending on the type of offence. 

• The lesser summary offence of assaulting a police officer under section 790 of the PPRA resulted in a custodial penalty in 13.4 per cent of cases, much higher than the 3.4 per cent of cases with custodial outcomes for obstructing a police officer (MSO). 

• The summary offence of assaulting or obstructing a corrective services officer under section 124(b) of the CSA almost always resulted in a custodial penalty (84.0% of cases, MSO). 

• The average sentence for non-aggravated serious assault in the higher courts was 1.0 years where the victim was a police officer and 0.9 years in circumstances where the victim was a corrective services officer. 

• Sentences were shorter in the Magistrates Courts for non-aggravated serious assault, averaging 0.6 years where the victim was a police officer, 0.7 years for assaults on corrective services officers, and 0.4 years for assaults on other public officers. 

• A monetary penalty was most common for the lesser summary offence of assaulting (48.7% of cases) or obstructing (65.2% of cases) police officers, with an average penalty amount of $620.80 for assaults, and $414.50 for obstructions. 

• For young offenders, community-based orders (including probation and community service) were the most common types of penalties imposed for serious assaults, with an average length of 8 to 9 months for probation and 50 to 80 hours of community service. 

• For the summary offence of obstructing a police officer, over half of young people were reprimanded. T

he Council found that the impacts of the 2012 and 2014 amendments, which introduced circumstances of aggravation that increased the maximum penalty applying where these factors are present from 7 years to 14 years, are difficult to assess due to a lack of recorded data on the circumstances of offending for offences prior to these changes. For example, whether an assault sentenced prior to these amendments involved one of the relevant circumstances of aggravation — such as spitting, biting, throwing bodily fluids or faeces or causing bodily harm. The introduction of the aggravating factors does appear, however, to have had some effect with offences with aggravating circumstances receiving increased sentences compared to orders made prior to these legislative amendments — both being more likely to attract a custodial sentence, and for these sentences on average to be longer than prior to the 2012 and 2014 reforms. No change, however, was identified to sentencing patterns for young offenders following these legislative changes. 

Reforms to the offence of serious assault under section 340 of the Criminal Code 

Chapter 8 sets out the Council’s recommendations for reforming section 340. The Council recommends that section 340 be recast with a focus on assaults on frontline and emergency workers, and that the offence be retitled to reflect this change to promote understanding of the type of conduct it is intended to capture. 

Under the Council’s proposals, references to acts of obstruction would be removed, with such charges instead having to be brought under relevant summary offences or the Criminal Code offence of resisting public officers under section 199. The Council recommends the maximum penalty for offences under section 199 be increased from 2 years to 3 years, taking into account that more serious acts of obstruction would not be likely to be charged under this provision. 

The new section 340 would be targeted at assaults on those officers whose primary role is to keep the community safe, who perform critical response duties on behalf of the community, and who perform a unique role in the supervision and management of offenders. They include:

• police officers, watch-house officers and protective security staff employed by the Queensland government; 

• ambulance officers; 

• health-service providers employed under the Hospital and Health Boards Act 2011 (Qld) or delivering services in a private hospital, prison or detention centre environment, as well as people acting in aid of those health-service providers; 

• fire and emergency services employees under the Fire and Emergency Services Act 1990 (Qld), volunteers of rural fire brigades, members of the State Emergency Service and other volunteers engaged in an activity to support functions under that Act; 

• corrective services officers; 

• youth justice staff members; and 

• authorised officers under the Child Protection Act 1999 (Qld). 

This not only reflects the essential and critical role of these officers but will also result in greater clarity about who the section applies to. As a consequence of this recommendation, the Council recommends sections 340(1)(c) and (d) be repealed, and the existing provisions that apply to assaults on persons aged 60 years or more, or who rely on a guide, hearing, assistance dog, wheelchair or other remedial device, to another section of the Code. The recommended changes will also require significant reform or repeal of sections 340(1)(b), (2) and (2AA), removing references to the term ‘public officer’. 

The existing circumstances of aggravation will continue to apply, but to the more narrowly defined class of victim who would fall under section 340 of ‘frontline and emergency workers’. 

The Council notes concerns that the current 14-year maximum penalty that applies to aggravated serious assault is poorly aligned with that which applies to AOBH (10 years in its aggravated form), and with equivalent offences in other jurisdictions, such as aggravated serious assault in Western Australia. The highest custodial sentence imposed over the period examined was a sentence of 5 years, falling well short of a sentence of 10 years for torture, and 8 years for GBH — both of which also carry a 14-year maximum penalty. 

Ultimately, the Council has recommended that the 14-year penalty be retained. It has done so on the basis that the classification of offences and setting of statutory maxima — as a general proposition — is best undertaken as a holistic exercise. This enables an assessment to be made of the seriousness of individual offences and conduct captured relative to other similar offences and is therefore more likely to promote a penalty framework that is internally consistent and coherent. The last review of maximum penalties in Queensland was the O’Regan Committee’s review in 1992, completed some years prior to the initial increase in the maximum penalty for serious assault from 3 years to 7 years, and 20 years before the current 14-year penalty was introduced. Over this time there have been a number of amendments to the maximum penalties that apply to other offences under the Code, including common assault and AOBH (both simpliciter and in its aggravated form). 

A consequence of the Council’s proposals is that some classes of public officer would no longer be captured within section 340. They include transit officers, fisheries inspectors, local government employees and public-school employees. The Council considers the increased seriousness of assaults on these officers should be recognised through a new aggravating factor under section 9 of the PSA. This will allow the same protections to be extended to workers performing similar roles to those in the public sector — for example, private schoolteachers and staff, and private or contracted public transport providers — while keeping section 340 appropriately narrowly focused. 

Summary offences of assault and obstruct public officers 

Chapter 9 reviews existing summary offences of’ assault’ and ‘obstruct’ that can be charged in place of ‘serious assault’. The Council agrees with views expressed by a number of stakeholders that it is important to retain separate levels of offences — even if these offences ostensibly capture the same forms of criminal behaviour. This ensures that people who commit these offences are not exposed to the possibility of a more severe penalty being imposed for actions that are relatively minor — for example, in the case of an assault, a light push where no injury has been caused. Retaining these offence distinctions not only means that a different penalty framework is applied, but also ensures that criminal histories present a more accurate reflection of the seriousness of the charges an offender has been convicted of and sentenced for. 

However, taking into account the proliferation of summary assault and obstruct offences in Queensland over time, adding to the general complexity of the criminal law, the Council recommends that a new summary offence be created under the Summary Offences Act 2005 (Qld) to replace existing offences of assault and obstruct, which it recommends should be repealed over time. The Council recommends this new summary offence should carry a maximum penalty of 6 months’ imprisonment or 100 penalty units. The existing assault and obstruct offences for police and corrective services officers, however, would be retained, with no change to the current penalties that apply. This is on the basis that these are the most frequently charged forms of assault and obstruct offences, and that the maximum penalties set take into account the particular contexts in which this offending occurs. The Council further recommends that the QPS should develop internal guidelines to supplement the existing Director’s Guidelines issued by the Office of the Director of Public Prosecutions to support the consistent and appropriate exercise of discretion across the state when deciding whether to prefer a section 340 offence or a summary charge. 

Changes to the sentencing framework for assaults on public officers and other workers vulnerable to assault 

Chapter 10 presents the Council’s recommendations for reform of the current sentencing framework. 

As discussed above, Queensland courts have long recognised the status of victims as public officers, or in occupations that involve a higher vulnerability to assaults, as an aggravating factor for sentencing purposes. Given the concerns raised by some industries about the need for proper protections against assaults on their workers, such as those representing workers in the transport and security industries, the Council considers there is merit in giving statutory recognition to the increased vulnerability of these workers and the treatment of this factor in sentencing as aggravating. 

Although some may view this change as unnecessary, by enshrining this principle in legislation, it will make clear to the community that offences involving violence, or threatened violence, against these workers will be treated by courts in sentencing as more serious, thereby serving an important communicative function. It will achieve this purpose while preserving the courts’ ability to determine the weight to be placed on this factor in the particular circumstances of the case. 

The Council proposes its objectives be achieved by introducing a new aggravating factor in section 9 of the PSA that will apply to offences to which the current subsections (2A) and (3) apply — that is, which involve the use, or attempted use, of violence, or that have resulted in physical harm to another person. Courts would be required to consider the fact such an offence has occurred in the performance of the functions of the victim’s office or employment, or because of this, as aggravating providing it can reasonably be treated as such. The new provision, under the Council’s preferred option, will have two separate limbs, based on a similar provision in NSW: • the first applying to offences committed on frontline and emergency workers, as defined for the purposes of section 340, with application to offences under the general criminal law in circumstances where the victim’s occupation is not an element of the offence — for example, AOBH (s 339), GBH (s 320), wounding (s 323) — and acts intended to cause GBH and other malicious acts (s 317); and • the second based on the victim’s vulnerability due to their occupation, which will not be limited to frontline emergency workers and can be applied to people working both in the public and private sector and engaged as volunteers. 

It could contain a non-exhaustive list of examples, such as bus drivers or other public transport workers, taxi drivers, rideshare drivers, health and aged care workers, and security officers. A legislative example might be provided of where it might not be reasonable to do so — for example, if the offender is suffering from a mental illness. 

After reviewing the current sentencing approach for serious assault under section 340, the Council has not identified any compelling case for change. There appears to be sufficient scope under the current arrangements to impose an appropriate sentence, and the increased use of custodial sentences by courts suggest that courts are recognising these offences as more serious. The Council has also recommended the current arrangements for the summary disposition of section 340 charges on prosecution election should be retained. While some legal stakeholders were strongly in favour of these matters moving to a defence election to provide defendants with the right to a jury trial, there are, equally, arguments against such a change, including that the current approach expedites the resolution of charges, in the interests of both defendants and complainants. On balance, it considers no change is necessary. 

With regard to sentencing options, the Council refers to reforms proposed in its Community-based Sentencing Orders, Imprisonment and Parole Options: Final Report released in 2019, as having potential to improve sentencing responses to assaults on public officers. These recommendations included providing courts with a broader range of options, including combining the use of imprisonment with a community-based order when sentencing for a single offence; encouraging the use of more targeted community-based orders to address the underlying causes of offending; and removing the availability of parole for short sentences of imprisonment where this might not be appropriate and lead to an increased risk of reoffending. 

This earlier report also recommended a review of mandatory sentencing provisions that would allow investigation of whether the current requirement under section 108B of the PSA for a court to make a community service order where an offence is committed in a public place while adversely affected by an intoxicating substance is meeting its intended objectives and should be retained. This requirement currently applies not only to serious assault of police and public officers under sections 340(1)(b) and (2AA), and section 790 of the PPRA, but also to a number of other offences, such as common assault, wounding, AOBH and GBH. The Council has previously stated its concerns about mandatory sentencing, including the lack of evidence that it achieves its intended deterrent purpose. Given the significant overrepresentation of Aboriginal and Torres Strait Islander peoples among those sentenced for assaults of police and other public officers, any extension of mandatory sentencing provisions as they apply to these offences would risk having a particularly negative impact on these offenders. 

Improving system responses and increasing community understanding 

Chapter 11 highlights the importance of ensuring there are appropriate institutional responses to occupational violence and that there are supports and information available to victims. 

The Council considers, in particular, there is substantial merit in the Queensland Government investigating the expanded use and availability of adult restorative justice conferencing as part of a broader criminal justice response to assaults on public officers and others who are assaulted at work. This program, which gives victims the ability to meet face-to-face with the offender in a supportive environment, was viewed very positively by a wide range of stakeholders during consultations and in submissions. 

Although restorative justice conferencing may not be an option all victims wish to pursue, many stakeholders commented on its potential to improve victim satisfaction by giving victims a role as active participants in the process and allowing them to communicate the harm that has been caused by the offender’s actions, other than through the making of a victim impact statement. It may also provide victims with greater confidence in the outcome. 

Chapter 12 presents three recommendations to improve the ability to report on sentencing outcomes for assaults on public officers and public knowledge and understanding of penalties and sentences for these offences. These are: • identifying ways information can be captured that highlights if a victim of an assault, or an assault-related offence, is a public officer assaulted at work or assaulted because of their status as a public officer; • supporting continued work on strategies to make more District Court sentencing remarks publicly available; and • the continuation of public awareness campaigns that include information about maximum penalties that apply to assaults on public officers.