Conscription and Political Pamphlets

The discussion of 'civil conscription' as part of today's judgment in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 regarding COVID public health orders

Civil Conscription 

Section 51(xxiiiA) of the Constitution confers on the Federal Parliament legislative power to make laws for the peace, order and good government of the Commonwealth with respect to:

“[t]he provision of maternity allowances, widows pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription, benefits to students and family allowances; …” (emphasis added)

This legislative power was inserted into s 51 with effect from 19 December 1946 by the Constitution Alteration (Social Services) Act 1946 following its passage in a referendum. The historical events that lead to the passage of this provision in this particular form are described in Wong v The Commonwealth (2009) 236 CLR 573; [2009] HCA 3 at [18] to [55] per French CJ and Gummow J, at [174] to [191] per Hayne, Crennan and Kiefel JJ and, to an extent, by Heydon J at [271] to [277] (“Wong”). It suffices to note two matters about that history. 

First, the phrase “civil conscription” has its origins in the debate about whether “industrial conscription”, that is, the use of compulsory civilian labour, would or would not be deployed in the war effort, as it eventually was (Wong at [31] to [40]; see Reid v Sinderberry (1944) 68 CLR 504). 

Second, the carve out from the referendum proposing the grant of legislative power so as to not authorise any form of civil conscription was suggested by the then opposition and agreed to by then government (Wong at [50] to [51]) and no doubt helped secure its passage. It stands in contrast to the nationalisation of medical services that took place in the United Kingdom around the same time (Wong at [274]). Thus, the phrase “civil conscription” was deployed so as to preclude compulsory service by medical professionals which might not answer the description “industrial conscription” (Wong at [50]). 

Bearing that in mind, two aspects of the concept of civil conscription of s 51(xxiiiA) should be noted. First, the preclusion on authorising civil conscription only qualifies a (Commonwealth) law for the “provision” of “medical or dental services” (the BMA Case at 254 per Rich J, at 261 per Dixon J, at 282 per McTiernan J, at 286 per Williams J, contra per Latham CJ at 253 and Webb J not deciding at 292; Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279; [1986] HCA 6; “Alexandra”). 

Second, civil conscription is directed to compulsive service in the provision of medical services. In the BMA Case a majority, Latham CJ, Rich, Williams and Webb JJ, Dixon and McTiernan JJ dissenting, upheld a challenge to the validity of a legislative requirement for pharmacists to write scripts for medicines on a particular form regardless of whether the medicine was to be obtained for free by the patient under the Pharmaceutical Benefits Scheme. The widest reading of the majority’s conclusion was that the prohibition on civil conscription in relation to medical and dental services strikes down any “compulsion of law requiring that men … perform work in a particular way” (at 249 per Latham CJ). Dixon J in dissent concluded that nothing in the impugned provision compelled the rendering of medical services to patients in any capacity whether regularly, occasionally, for a short period or intermittently (at 278). His Honour’s approach was effectively adopted in the General Practitioner’s Case (1980) 145 CLR 532 at 556-557 per Gibbs J. at 563 per Stephen J, at 564 per Mason J and 571 to 572 per Wilson J; Wong at [195]). In Wong, Hayne, Crennan and Kiefel JJ also applied the approach of Dixon J in the BMA Case while accepting that civil conscription can arise from the practical and not just legal effect of a legislative provision (at [209]). Even so, their Honours concluded that the practical effect of the scheme for the payment of medical benefits in the Health Insurance Act did not amount to civil conscription in that it did not compel a medical practitioner, legally or practically, to provide a service on behalf of the Commonwealth or at all to treat any patient or particular patient ([id]). Their Honours also concluded that, accepting that the practical effect of the Health Insurance Act was to require doctors who wish to practise to participate in the Medicare scheme (at [224]), a requirement to comply with a standard of practice is not a form of civil conscription (at [226]). 

Similarly, after reviewing the history of s 51(xxiiiA), French CJ and Gummow J in Wong reached the same conclusion. In so doing, their Honours described the meaning of “civil conscription” in s 51(xxiiiA) as follows (at [60]): 

“The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase "(but not so as to authorize any form of civil conscription)" which treats "civil conscription" as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth … it also may be for the benefit of third parties, if at the direction of the Commonwealth.” (emphasis added) 

The effect of the Kassam plaintiffs’ written submissions was that Order (No 2) effected a form of civil conscription because it effectively required unvaccinated persons to obtain a COVID-19 vaccine. [157] This wrongly assumed that s 51(xxiiiA) proscribes the compulsory acquisition of medical services which it does not. In oral submissions, counsel for the Kassam plaintiffs, Mr King, was pressed on how any doctors or any other medical professional was compelled to provide a medical or dental service. He contended that [158]

“…the effect of the order is what is critical in our respectful submission, and the effect of that order is to conscript both patients and doctors, their doctors, to obtain a double vaccination, or in relation to the earlier orders a single vaccination, as the price of giving up their employment and their right to protect and look after their families.” 

This contention was repeated in a written submission filed on 4 October 2021. [159] Nothing in any part of Order (No 2) or the PHA involves any element of coercion on a doctor or other medical provider to vaccinate anyone. Otherwise, this submission simply repeats the wrong assertion that s 51(xxiiiA) operates on the acquisition of a medical service as opposed to its provision. 

In his submissions, Dr Harkess contended that a medical or dental service was provided by a person who received a COVID-19 vaccine because theycontribute to the eventual establishment of “herd immunity”. He submitted that it follows that those who were “compelled” to be vaccinated were civilly conscripted to provide dental and medical services. [160] It suffices to state that contributing to the general health of the community by adding to herd immunity is not providing a medical service. 

Wong establishes that s 51(xxiiiA) is to be interpreted according to its historical purpose as explained above. On any sensible reading of the authorities the impugned orders do not impose any form of civil conscription as referred to in s 51(xxiiiA).

Points of note include paras [147]-[148] -

In his affidavit Professor Borody asserts that the Federal Minister for Health wrote to him on 27 August 2020 and “specifically instructed me that doctors in Australia can prescribe ivermectin and other components of ‘off label’.  He annexes that letter. The letter does not contain any instruction that doctors in Australia can prescribe ivermectin and other components off label. In fact, what the Minister stated was:

“Whilst shown to be effective in the lab environment, ivermectin cannot be used in humans for COVID-19 until further testing and clinical trials have been completed to show that it is safe and effective in humans. 

… I acknowledge some physicians are prescribing ivermectin off label. As you would know the practice of prescribing registered medicines outside their approved indications is not regulated nor controlled by therapeutic goods Association as it is at the discretion of a prescribing physician.”

The balance of the letter encourages Professor Borody to seek funding for trials of ivermectin. It suffices to state that nothing in Professor Borody’s report provides any assistance for the Kassam plaintiffs claim that the impugned orders are unreasonable.

Elsewhere the Court states

Finally on this topic, I note that the Henry plaintiffs relied on the dissenting judgment of Deputy President Dean of the Fair Work Commission in an unfair dismissal case that addressed whether an employee who objected to being vaccinated could be reinstated to work at an aged care centre (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCB 6015). In particular, they relied on various passages in the Deputy President’s judgment to the effect that “vaccine mandates” embodied in the various public health responses to COVID-19 amount to a form of coercion that violates a person’s right to bodily integrity (at [115] to [129]). 

Given the very different jurisdictions being exercised by the Fair Work Commission and this Court, I would not ordinarily address the reasoning in their decisions (and I doubt they would address the reasoning in mine). However, as the Henry plaintiffs sought to rely on the reasoning it is necessary to record why that judgment is of no assistance. 

First, the relevant parts of the decision relied on by the Henry plaintiffs do not address the case law concerning consent to a medical treatment. 

Second, the passages relied on and passages to similar effect throughout the judgment appear to contain assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19 that were not reflected in the evidence that I found persuasive in this case and as far as I can ascertain were not the subject of evidence in that case. 

Third, elsewhere in her reasons, the Deputy President considered it necessary to opine on matters affecting either the validity or the appropriateness of making the Aged Care Order under the PHA (at [147] to [173]). The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function. 

Fourth, the Deputy President’s judgment concludes with a number of clarion calls imploring “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation” (at [182]) and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID” (at [183]). Political pamphlets have their place but I doubt that the Fair Work Commission is one of them. They are not authorities for legal propositions. 

In the end result, provisions such as clause 4.3 and 5.8 do not amount to a violation of anyone’s right to bodily integrity but instead impede their freedom of movement which has consequential effects on their ability to work. Freedom of movement is undoubtedly important, although it is not necessarily some form of positive right. Regardless, the PHA is clearly directed to limiting that freedom, sometimes severely.

Dumps

Another 'we didn't bother to clear the filing cabinets' inciodent, with the ABC reporting 'confidential documents including child protection information were dumped at a Darwin tip last week when the Northern Territory Families department threw out old filing cabinets'. 

 The documents were inside old filing cabinets discarded by Territory Families during an office clean-out Members of the public who find any of the documents are urged to come forward It is possible some of those documents are now out in the community after some cabinets were sold from the tip's on-site shop over the weekend. 

Territory Families, Housing and Communities has since launched an investigation into how the sensitive information ended up at Darwin's Shoal Bay Waste Management facility. Nicole Hurwood, acting chief executive of Territory Families, said the agency believed the documents were thrown out on October 7 during an office clean-up when leftover or broken office cabinets were dumped at the tip. 

She said it became aware of the mistake on Monday and arranged to have the office cabinets immediately secured and then searched to retrieve any documents. Territory Families was now working to identify and contact anyone whose private information may have been dumped at the tip by accident ... 

"Agency officers have discovered a range of different documents [at the tip], including corporate documents and some child protection documents," Ms Hurwood said on Friday. "What we do know at this stage is there [was] information relating to about six families and some lists with child protection information on them." 

She said the agency did not know if any of the the private documents have ended up in public hands, adding "there were cabinets sold from the Shoal Bay Recycling Centre over the weekend". "We will be relying on the public or the people who find those documents to come forward," she said, saying they should contact Territory Families' complaint line.

Hurwood indicates that Territory Families was undertaking an internal investigation to "minimise that risk from occurring again". The efficacy of that review is uncertain, given  that Territory Families lost dozens of confidential documents — including a child protection investigation, a child death file and other documents regarding clients and staff dating back to 2009— at the Alice Springs tip i. They were located in filing cabinets and pedestal drawers accidentally sent to the tip during an office relocation.

Identity Crime

The ABC reports the arrest on the Gold Coast of a 45 year old woman, charged under the Health Practitioner Regulation National Law with pretending to be a doctor.

She had been issuing fake COVID-19 "medical exemption" certificates, allegedly issuing around 600 false certificates. 

 Police issued a search warrant on Wednesday morning for an address in Labrador and arrested the woman, who is from Darling Heights in the Toowoomba region. 

She was charged under Health Practitioner National Law with five counts of taking a title indicating a person is a health practitioner.

In this instance there is coverage under Health Practitioner Regulation National Law (Queensland) ss 113, 115, 116, 117 and 118 alongside associated advertising provisions.

The first conviction under the National Law was in 2014, with Jayne Walton being prosecuted by the Australian Health Practitioner Regulation Agency (AHPRA), found guilty of using the title ‘psychologist’ and claiming to be a registered psychologist, and ordered to pay fines totaling $20,000. Other health practitioner title offences - a form of identity crime - are noted elsewhere in this blog, for example here.

The woman is reported as having charged $150 per fake certificate and claim that "her interpretation of the legislation" authorises her to issue the certificates even thougfh she is not a registered practitioner. It is unclear if people who paid for the certificates were aware they were not genuine; purchasers who were aware that the certificates were fake could potentially be charged with fraud-related offences. 

Subsequent reports indicate that the woman recently gained a doctorate in Professional Research (Addiction) at the University of Southern Queensland, claims experience as a patient in psychiatric institutions in four countries and is a "spiritual insights" and recovery coach. 

Her Amazon books profile states 

She now spends her days with her life partner and spiritual advisor, Venerable Monk Xu. They have joined forces to ensure their mission reaches a higher purpose and together have opened a small sanctuary that seeks to spiritually enlighten, train (body mastery), teach and coach hundreds of people to turn away from addiction and live a life of dedication and purpose. 

She continually fills her mind with self-development, educational and academic pursuits of excellence and just recently completed her Master of Public Health (MPH) at University of Queensland (Ranked 47th Best University in the World). Her passion, Coaching With Substance is a registered Public Benevolent Institution with a charitable vision to eradicate the harms caused by addiction, addictive behaviours and co-morbid mental illnesses, one client at a time. As the Founder, she spends her waking moments dedicated to her cause & life purpose.

Hacking

'The Simulation of Scandal: Hack-and-Leak Operations, the Gulf States, and U.S. Politics' by James Shires in (2020) 3(4) Texas National Security Review 10–29 comments 

Four hack-and-leak operations in U.S. politics between 2016 and 2019, publicly attributed to the United Arab Emirates, Qatar, and Saudi Arabia, should be seen as the “simulation of scandal" — deliberate attempts to direct moral judgment against their target. Although “hacking” tools enable easy access to secret information, they are a double-edged sword, as their discovery means the scandal becomes about the hack itself, not about the hacked information. There are wider consequences for cyber competition in situations of constraint where both sides are strategic partners, as in the case of the United States and its allies in the Persian Gulf. 

Hack-and-leak operations (HLO) are a new frontier in digital forms of foreign interference, epitomized by the success of Russian intelligence agencies in obtaining and disseminating documents from the Democratic National Committee (DNC) during the 2016 U.S. presidential election campaign.1 HLO and other information operations are widely seen as a severe threat to liberal democratic structures and U.S. policymakers have mobilized significant resources in response, including threat intelligence and cyber security protections, increased election and voting security, legislative pressure on social media companies, and even offensive cyber attacks. 

This “whole-of-nation” approach is largely based on the events of the 2016 U.S. election, and specifically Russian interference in the election process. However, it is hard to pinpoint the exact impact of the Russian disinformation operations. Controversial candidates, a combative and polarized media environment, and entrenched economic and social divisions were all key factors in the 2016 election result. Furthermore, foreign interest in the U.S. election was not limited to the Russian government; other state and nonstate actors also sought to influence candidate campaigns in their favor. The danger is that academic and policy understandings of HLO are over-reliant on a single case. This article therefore asks: How do other HLO cases alter our understanding of this new phenomenon, including motives, means, and consequences? 

HLO occur frequently worldwide, but their political contexts vary widely and have uncertain implications for U.S. politics.6 Consequently, this article expands our understanding of HLO through a detailed qualitative analysis of four operations that targeted political figures in the United States in the period following the DNC operation (October 2016 to January 2019), thus keeping the political and media environment constant as far as possible. These cases replicate many of the striking features of the DNC operation: access through phishing, the release of large collections of emails, publication in national media outlets, and even direct references to “DCLeaks,” the identity assumed by the Russian intelligence agencies to disseminate the DNC documents. These cases have been publicly attributed to governments in the Middle East, namely Qatar, Saudi Arabia, and the United Arab Emirates (UAE), and thus broaden conceptions of digital foreign interference to allies as well as adversaries. 

This article argues that HLO are the “simulation of scandal”: deliberate attempts to direct public moral judgment against their target. The success of HLO depends on the shifting power dynamic between the scandal-maker and the scandal-subject, referred to in Arabic as kāshif and makshūf, respectively. At the center of this dynamic are the digital technologies used to obtain and release secret information. These hacking tools are a double-edged sword, as their discovery often means the scandal becomes about the hack itself, not about the hacked information; in other words, the kāshif becomes the makshūf. These cases also highlight other overlooked aspects of HLO: the utility of “activist” cover, the involvement of new actors such as public relations (PR) agencies and law firms, and the leaker’s wary reliance on mistrustful relationships with traditional media. Finally, the article identifies wider consequences for cyber competition in situations of constraint where both sides are strategic partners. In such situations, HLO offer a powerful but indirect and unpredictable means of influence. 

The first section places HLO within the literature on cyber conflict and information operations. The second section draws on sociological accounts of mediatized and digitalized leaks to explore the simulation of scandal. The rest of the article concerns the four case studies: The third section provides an overview of each case; the fourth analyzes their coverage in prominent media outlets; and the fifth discusses reasons behind their differing effects. A conclusion places this discussion in a broader strategic context, highlights limitations, and suggests further work.

GDPR and CCPA

'Catalyzing Privacy Law' by Anupam Chander, Margot E. Kaminski and William McGeveran in (2021) Minnesota Law Review comments 

When the General Data Protection Regulation (GDPR) took effect in May 2018, it positioned the European Union as the world’s privacy champion. A flurry of emails updating privacy policies landed in in-boxes across the globe, attesting to the international reach of the European rule.  A month later, California enacted the California Consumer Privacy Act (CCPA), establishing the nation’s most stringent omnibus privacy protections, effective as of January 1, 2020. California, the home of many of the world’s largest data-based enterprises, emerged as a dark horse contender in the privacy regulator race. In the past year, state after state considered broad data privacy legislation, and eleven comprehensive federal privacy bills were introduced in Congress. 

What is catalyzing U.S. privacy law? The conventional wisdom holds that Europe is setting the global standard for information privacy. There is much truth to this—some 142 countries and counting now have a broad data privacy law, typically modeled on the GDPR. Scholars writing insightfully about the global race to information privacy have tracked the spread of data privacy laws across the world, noting Europe’s influence on these developments.  In a recent article, Paul Schwartz observes that the European Union pioneered international privacy law to enable commerce among nations within the bloc itself. He argues that other countries largely adopted the European Union’s data privacy model, reflecting its “success in the marketplace of ideas.” 

Schwartz cites the CCPA as an example of Europe’s success in spurring other jurisdictions to enact similar laws. Journalists reporting on the CCPA’s enactment, too, have frequently referred to it as “GDPR lite” and “California’s version of GDPR.” And as the push for federal legislation intensifies, many characterize it as a national response to the GDPR. 

This Article challenges this emerging consensus. Despite decades of European privacy law, the United States showed little appetite until now for broad privacy legislation.  Instead, norm entrepreneurs in California helped establish a new privacy framework that, as we show, differs significantly—and consciously—from the European model. Our close comparison of the new California and European laws reveals that the CCPA is not simply GDPR-lite: it is both more and less demanding on various points. It offers a fundamentally different regime for data privacy. And the numerous legislative proposals in state houses show greater fealty to California’s model than to the European antecedent.  Bills pending before Congress reflect pressure not from Brussels, but from Sacramento. 

Thus, California has emerged as a kind of privacy superregulator, catalyzing privacy law in the United States. Rather than the supranational EU, the subnational state of California — and, more specifically, a small network of determined individuals within that state — is now driving privacy in a significant part of the world. The emergence of the CCPA demonstrates the central role of local networks and norm entrepreneurship, contesting on the ground of what we call “data globalization.”  

We are thus witnessing a paradigm shift in the policy conversation around data privacy law. Until now, the rules of transatlantic privacy rested on awkward negotiated mechanisms to transfer data between two seemingly irreconcilable regimes. Now we are witnessing what might be characterized as a regulatory race on both sides of the ocean. 

This Article is the first to critically evaluate the relationship between California’s privacy law, Europe’s data protection regulation, and possible future state and federal privacy law.  This study is also of practical interest, answering questions for individuals and businesses alike: For businesses, whose laws should I follow? For individuals, who will protect my privacy? Studying these questions leads, in turn, to another set of inquiries about the ways in which catalysis from the GDPR and CCPA govern privacy outside either Europe or California. When Europe’s laws meet California’s, who wins? If indeed European or Californian regulation will be applied globally de facto, why then should anyone else legislate? 

The answers to all of these questions have implications not only for the shape of information privacy law but for understanding inter-jurisdictional regulatory dynamics in the digital economy. While data shares some characteristics with cars, pollution, and corporate charters—all the subject of prior globalizations of legal compliance and legal rules — it also differs because of its simultaneous and instantaneous global effects. Data disobeys borders and operates at Internet speed. Equally important, the answers to these questions shed light on the prospects of countries across the world as they vie for advantage in the information age. Ultimately, our account of privacy catalysis tests the operation of both federalism and international regulatory competition in the twenty-first century. Our analysis proceeds as follows. Part I situates our discussion of regulatory catalysis in data privacy within the broader frame of the theory of regulatory competition, borrowing lessons from areas such as corporate and environmental law. Part II compares the substance of the GDPR and the CCPA and the ways in which their structures promote catalysis in other jurisdictions. Part III turns to the race for data privacy law. We are the first to disentangle the catalytic effects on U.S. federal and state laws coming from both Brussels and Sacramento and to show that the resulting proposals are distinctly American and owe a greater debt to the CCPA than to the GDPR. As it once did with pioneering environmental regulation, California has emerged as a super-regulator again, this time with respect to data in the information age.

Courts

'The Rise of Judicial Self-Governance in the New Millennium' by Tim Bunjevac in (2021) 44(3) Melbourne University Law Review 412 comments 

A vast majority of court systems in the world are managed by the executive government, but a small and growing number of jurisdictions, including Victoria, South Australia and the Australian federal courts, have transitioned to judicial management of the court system. This article analyses the emergence of new institutions of judicial self-governance in Australia and overseas, with a particular emphasis on the establishment and regulation of judicial councils and judicial management boards inside judge-managed courts. The article also provides an introductory overview of the emerging scholarly discipline of judicial self-governance by identifying a range of unexplored institutional design questions and research directions for consideration and adaptation by Australian scholars who may be interested in examining the regulation of judge-managed institutions from a legal, political, institutional, managerial or constitutional perspective. 

 Bunjevac asks 

Imagine that you have been appointed professor of constitutional law or political science at a leading university in a particular country. You are asked to analyse a major court system reform that was introduced five years ago, which placed the judiciary in charge of the operational management of the court system. From the legislative provisions, you establish that the Reform Act was formally passed in Parliament in 2014, but are unable to gather any information about any consultations with the general public, legal profession, research institutes, non-government organisations or the academy in the lead-up to the reform. A brief media release states that the reform was approved following a closed consultation process involving only a handful of senior court officials and the government. 

Through your research you establish that no law lecturer, professor, management expert, barrister, solicitor, prosecutor or judge commented on the Bill when it was introduced in Parliament, even though the proposed changes were intended to have a significant impact on the administration of justice in this country. Similarly, none of the major media outlets had shown any interest, and you are unable to locate any pre-reform media interviews with the chief protagonists, despite the fact that the changes directly affected the way in which hundreds of millions of dollars in public money were to be expended every year. 

As you continue your research, you realise that even today little is known about the inner workings of the reformed judicial institutions or the way in which the changes have impacted upon the constitutional separation of powers. No empirical research or official evaluation of the reform has been undertaken by anyone, although there are rumours that unnamed court officials recently prevented a researcher from conducting an empirical evaluation of the reform on questionable grounds. 

You turn your attention to ordinary officers who perform day-to-day tasks in the court system and find that most of them are working under relentless pressure, and that their levels of psychological distress are significantly higher than that among the general population. Disturbingly, you also learn that several judicial and court officers recently committed suicide, reportedly due to their ‘unrelenting workloadand ‘abuse of power’ by a presiding judge. 

Is this another ‘vignette from a banana republic or a central European backwater recently emerged from authoritarian rule?’ In fact, this fictional story is partly based on actual events surrounding the landmark court system reform in Victoria, which introduced judicial self-governance in the courts and established an independent judicial council called Court Services Victoria (‘CSV’) in 2014. Victoria thus joined South Australia and the Australian federal courts as members of a select group of jurisdictions from around the world, where judges are fully in charge of court administration and seemingly in control of their own institutional destiny. In practical terms, this means that judges are now responsible not only for their traditional administrative arrangements that focus on case management and legal procedure; they also have assumed the responsibility to act as executive managers and policymakers for the financial, technical, administrative and human resources operations of the entire court system. Above all, judges are now responsible for generating new solutions that will improve the administration of justice and respond to a myriad of well-documented challenges that they inherited from the government-run system of court administration. But are judges and judge-managed institutions in a position to meet these expectations? No empirical studies have been conducted into the wider systemic effects of judicial self-governance in any Australian jurisdiction where it was introduced, despite a number of early-warning signals that warranted at least a scholarly enquiry. This article argues that the apparent lack of academic, political or general interest in this area is a concerning trend that may ultimately have unforeseen consequences for judicial independence and the administration of justice in this country. As recent experiences from a diverse group of international jurisdictions demonstrate, the institutional self-governance of the judiciary is not necessarily a ‘one-way path and an unquestionable good’; it can be ‘reduced and even abused’, especially if judges fail to develop the necessary administrative capacity to manage the court system in a more challenging institutional and political environment. 

Accordingly, the principal aim of this article is to invite the Australian academic community to contribute to this process and take a closer look at the emerging institutions and scholarly discipline of judicial self-governance. Many important issues are at stake. First, what do we know about the concept of judicial independence in the age of judicial self-governance? While the traditional constitutional law lens has been preoccupied with the judiciary’s perennial quest for independence from the executive government, the evolving power of judges in court management and the establishment of judicial administrative formations have received ‘far less attention’, at least when compared to contemporary international scholarship in this area. Two of the most ambitious empirical studies of judicial self-governance that were conducted in the United Kingdom (‘UK’) (2011–15) and Europe (2016–20)  have practically gone unnoticed in Australian constitutional law circles, even though they pointed out ‘huge’ policy and constitutional law implications of judicial self-governance. 

Second, not much is known about the inner workings of the newly-established judicial institutions, such as judicial councils, judicial commissions or judicial management boards inside courts. This is a prospective area for scholarly enquiry, as most of these institutions have been chronically under-researched, while others have been classified as sui generis.  It is perhaps due to their unique position within the judicial arm of government that these institutions have largely escaped the attention of empirical researchers from more established scholarly disciplines in Australia, such as political science, law, corporate governance, public administration and the organisational sciences. As a result, little empirical information is available about the internal operation of the judge-managed institutions or their broader systemic role within the court systems. 

Undertaking scholarly research in this area will necessitate clear identification of the institutional ‘organs’ of judicial self-governance and detailed mapping of the courts’ internal divisions, stakeholders, rules and ‘constitutions’. These issues are explored, from a normative perspective, in Part I of this article, which seeks to examine the newly-established ‘judicial management boards’ in the Supreme and County Courts of Victoria following their transfer to judicial self-governance. However, as Kosař points out, only by conducting empirical research inside courts will we be able to fully understand the multitude of factors that can contribute to the ‘rise and fall of judicial self-governance’ and place us in a position to devise best-practice organisational solutions for the future. Over time, our research may even lead us to the development of an organic theory of judicial self-governance, perhaps initially through the adaptation of concepts borrowed from corporate governance and public administration theory. 

Third, as the recent series of tragic events in the Victorian court system demonstrate, it is insufficient to direct our scientific enquiry at the normative, administrative and institutional levels alone; we must also analyse the personal experiences of individual judges and others within the judicial management structures to ascertain whether their actual role corresponds to that assigned to them on paper (if one is specified at all). Issues of psychological stress, wellbeing, independence and impartiality are most relevant in this context, but so are issues about judges’ competence to act as effective managers while addressing complex operational, procedural and case management tasks in their everyday work routines. Judicial leaders, academic researchers and court system stakeholders ought to be interested to know whether court officials have up-to-date knowledge about the latest international developments in areas such as caseflow management and workload measurement, which are the key to improving the effectiveness of court operations. 

This takes us to the next important issue at stake: how can any identified problems and capability gaps be addressed, and by whom? Most courts in Australia do not possess the necessary resources, know-how or methodological prowess to undertake complex empirical studies that measure how different types of cases are impacting the use of judicial and administrative resources.  Should this task ideally be undertaken by the court staff, managing judges, the judicial council, management consultancy firms, academics or someone else? Unfortunately, there are few — if any — court-system researchers in this country with the required technical expertise to manage such projects on their own. This is partly due to the fact that the latest, state-of-the art workload measurement systems employ sophisticated ‘casemix’ and artificial intelligence (‘AI’) technology that was originally developed for other industries.  To address this ‘capability gap’, Part II of this article identifies the need for comparative empirical research into the jurisdictions that have successfully introduced such systems in courts, using a multidisciplinary approach to investigate the difficult questions involved in establishing such systems that have been identified in the literature: technological, procedural, managerial, legal and ethical issues. 

Finally, for constitutional law scholars and political science researchers who are perhaps more theoretically-inclined, the emergence of institutions of judicial self-governance prompts a range of unexplored constitutional theory questions that have only recently been identified by international scholars. The central research question in this area will be to examine how the transition to judicial self-governance has changed the constitutional separation of powers. Part III of this article places this issue in the Victorian context by pointing out that the Victorian legislation does not regulate the powers of the Minister towards the judicial council and courts, and there are also no provisions that envisage any formal institutional interaction between the self-managed judiciary and Parliament. By contrast, the availability of explicit statutory guarantees of ongoing institutional engagement between the three branches of government was seen as being pivotal to protecting judicial independence in the UK following the landmark constitutional reform that took place in that country in 2005. Australian research that examined the impact of the Victorian reform on the ability of the judiciary to secure adequate funding, protect institutional independence and maintain adequate visibility in a crowded political arena would make a valuable contribution to this field . 

Another constitutional ‘crisis point’ is also conceivable — that the self-managed judiciary has become too independent, indolent, unresponsive or unwilling to engage with the government, Parliament or other stakeholders. Accordingly, there is also a need for future research to examine how the ‘politics of judicial independence’ have played out in the new institutional environment: what formal or informal arrangements are in place to ensure that the new institutions of judicial self-governance remain ‘responsive’ to the needs of government and other justice system stakeholders whose work is intricately connected with the work of the courts? A further aspect that could be investigated in this area is whether there are any ‘hidden guardians’ of judicial independence within the other two branches of government, such as the parliamentary select committees, Presiding Officers, Auditor-General’s and Victorian Government Solicitor’s offices, departmental officials and others. 

As the introductory overview of this article demonstrates, the establishment of new institutions of judicial self-governance necessitates a new scholarly agenda that goes beyond the traditional categories of ‘judicial councils’ or desktop analyses of the ‘models’ of court governance. Much more empirical work is needed to allow us to fully understand the growing international phenomenon of judicial self-governance with all of its dimensions, values, motivations and complexities. Indeed, as the concluding Part of this article points out, European scholars have already started ‘unpacking’ the discipline of judicial self-governance into smaller units, such as judicial councils, informal self-governance, ‘digital’ self-governance, ‘information’ self-governance, ‘regulatory’ self-governance, and ‘ethical’ self-governance of the judiciary. This article offers an initial contribution to this process in Australia by identifying a range of unexplored institutional design questions and research directions for consideration and adaptation by Australian scholars who may be interested in examining the regulation of judge-managed institutions from a legal, political, institutional, managerial or constitutional perspective.

Sovereign Stupidity

Another sovereign citizen aka pseudolegal claim, this time considered in Reiman v Commissioner of Police [2021] QDC 242 - 

 [1] On 26 May 2020, the appellant, who did not hold a driver’s licence, was driving an unregistered and uninsured car without number plates on the Tully Mission Beach Road. Police activated their siren. The appellant stopped her car, which remained partly on the roadway. Police asked her to move the car because its position was unsafe, so that they could speak to her about the absence of licence plates, and check if her car was registered. The appellant refused to move the car off the road and to get out of the car, despite direction to do so. More police were called and arrived. The appellant eventually got out of the car. In the course of speaking with a police officer, the appellant threw a bottle of iced coffee towards him. The liquid in the bottle hit him and another officer. 

[2] From that incident, the appellant was charged with seven offences. 

[3] After a summary trial in the Magistrates Court at Tully on 5 March 2021, the appellant was convicted of six of the seven charges. ... 

[5] The appellant appeared on her own behalf in the court below and on appeal. 

[6] The notice of appeal listed the following grounds of appeal: • “No due process • Error in fact of law • No binding contract • No evidence of jurisdiction • Affidavit not accepted as evidence”. 

[7] Based upon the appellant’s oral submissions (which were at times difficult to understand) and documents, the issues in the appeal can be summarised as follows:

1. lack of jurisdiction: the appellant contends that she is not subject to any Queensland government statutes or proceedings, that the police acted without authority or jurisdiction, that she is not required to hold a driver’s licence, and the car she was driving is not required to be registered or insured under a statutory insurance scheme; 

2. lack of procedural fairness: the appellant contends that she was denied a fair trial; and 

3. provocation and self defence: the appellant contends that with respect to charges 6 and 7 (the two charges of serious assault police), the learned Magistrate erred in her consideration of the defences of provocation and self defence.

[8] For the reasons that follow, the appeal should be dismissed. 

Nature of appeal 

[9] The applicable principles for the hearing of such an appeal are not in dispute. To succeed, the appellant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error. 

[10] The appeal is by way of rehearing on the evidence before the Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo. The court must consider each of the grounds of appeal having regard to the evidence and to determine for itself the facts of the case and the legal consequences that follow from such findings. [ 

11] The rehearing requires this court to conduct a ‘real review’ of the evidence before the Magistrate and of the Magistrate’s reasons to determine whether they have erred in fact or law. Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact. 

[12] If, after conducting the necessary review, I am satisfied of the guilt of the appellant, it is appropriate to dismiss the appeal. 

Summary of the evidence at trial 

[13] The prosecution called three police witnesses, and tendered various evidentiary certificates as well as the recordings of the police officers’ body-worn cameras. 

[14] The appellant elected to give evidence. With respect to charges 3, 4 and 5, she did not dispute that she was driving the car, that she did not hold a driver’s licence and that the car was unregistered. The appellant asserted that she was not required to be licenced, and that the car was not required to be registered or insured, for the reasons set out under the lack of jurisdiction ground below. 

[15] With respect to charges 6 and 7, the appellant’s evidence was to the effect that Officer Tamblyn had provoked her by knocking her cigarette out of her mouth to the ground, and that her actions in throwing the contents of the iced coffee bottle at him were justified in self defence. 

[16] I deal with each of the grounds of appeal below. 

Lack of jurisdiction ground 

[17] For this ground, the appellant’s oral and written submissions, and the documents she sought to rely upon, included the following statements:

1. “I, Yvette Terese, the affiant, am not a Legal Fiction Person nor a Corporate Entity or some kind of Partnership, BUT INSTEAD am a living breathing, sovereign, flesh and blood Human Being with a living soul, with a distinct Mind is capable of possessing Knowledge”; 

2. “I am a woman, a living woman. I am not dead or lost at sea. I stand under the jurisdiction of my flag[6]”; 

3. the appellant had renounced any “contract” or “agreement” with any government agency or entity; 

4. “slavery and peonage are immoral and fraud, misrepresentation, nondisclosure, intimidation, deceit, concealment of material fact, lying, and treachery are morally wrong”; 

5. the appellant had “absolutely no desire whatsoever to be a “client” (slave) of any governmental agency, state or federal”; 

6. the appellant had “unalienable/inalienable indefeasible rights to life, liberty, freedom and property”.

 [18] Despite the appellant’s apparently strongly held belief otherwise, none of these repeated incantations have any relevant legal effect. 

[19] The appellant also submitted that:

1. she did not recognise Queensland as a jurisdiction of the Commonwealth of Australia and she is not subject to the statutory laws and jurisdiction of the State of Queensland, because laws were created by God, in the Bible, upheld by the Magna Carta and reflected in the constitution, and because of the operation of s 109 of the Commonwealth Act 1901; 

2. the police acted without lawful authority; 

3. the Magistrates Court and District Court are unlawful and have no jurisdiction over her; 4. persons interacting with her must produce evidence of their lawful authority and pay a fee of “four-hundred-thousand dollars credit in gold or silver”; 

5. she was travelling under her “inalienable right” under the Magna Carta and ss 51 and 92 of the Commonwealth Constitution; 

6. the police were committing “war crimes” under the Geneva Convention; 

7. when arrested she was “kidnapped” and falsely imprisoned.

 [20] Despite contending that the District Court lacked jurisdiction and was a fraud, when invited to discontinue her appeal, the appellant declined to do so. 

[21] It is unnecessary to answer every incomprehensible contention raised by the appellant when the unremarkable proposition that she is bound by the statutory law of Queensland is a complete answer to all her claims under this ground. 

[22] Her submissions are misconceived and devoid of merit. The jurisdictional arguments raised by the appellant have been considered and rejected in other cases. Just a few examples will suffice. 

[23] The argument as to the effect of Magna Carta and its supposed inconsistency with State legislation has been dealt with in a number of cases, the general thrust of which is that it is wrong to suppose that local legislation may not be made in conflict with the Magna Carta : “an applicable enactment, whether Queensland, Commonwealth or Imperial is capable in law of repealing Magna Carta either completely or to the extent that it is inconsistent with that enactment.” 

[24] The appellant’s arguments were similar to those advanced unsuccessfully in Hubner v Erbacher [2004] QDC 345. I respectfully adopt the analysis of White DCJ at [10]-[17] in which he concluded that the appellant, as a resident of Queensland, was subject to the laws of Queensland, including those relating to vehicle registration, compulsory third party insurance, driver licensing and number plates.

The judgment in Huber states

 [1] On 25 June 2003 the appellant was convicted in the Magistrates court at Atherton of the following offences:- 1. That on the 28th day October 2002 at Yungaburra in the Magistrates Court District of Cairns in the State of Queensland he used on a road namely Gordonvale-Atherton Road, Yungaburra, a vehicle namely a motor car which was not a registered vehicle contrary to s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999. 2 2. That on the 27th day of October 2002 in the Magistrates Court District of Cairns in the State of Queensland he without reasonable excuse had in his possession a thing that purported to be but was not a number plate. The appellant appeals to the District Court against his conviction for these offences. ... Ultimately His Worship proceeded on the basis that the appellant pleaded not guilty to the charges. The prosecutor called evidence from two police officers, Sgt Daniel John Erbacher and Sen Const Paul John Morley. Evidence was also given by Maureen Bridget Forsayth, an officer of the Queensland Transport Department. 

[3] Sgt Erbacher and Sen const Morley gave evidence that they were performing road patrols on the Gillies Highway between Yungaburra and Atherton. The evidence was that the road was also known as the Gordonvale-Atherton Road. At about 2.10 in the afternoon the officers intercepted a Ford F250 utility which was being driven by the appellant. The officers noticed, attached to the vehicle, what appeared to be a number plate bearing the numbers 351-F250. It had the letters AUS printed down the side of the number plate and the words “HM ELECTORS PARLIAMENT QUEENSLAND” printed underneath the number. Const Morley asked the appellant to produce his driver’s licence which he did and which confirmed the appellant’s identity. Const Morley asked the appellant where he had obtained the number plate and he responded that he had bought them from a friend in Victoria for $400.00. Morley also noticed that there was not a Queensland Transport registration sticker attached to the vehicle and when asked why, the appellant replied that he did not need a registration sticker because it is his right under the Constitution and the Magna Carta 1215 and he believed he did not need one. Const Morley seized the registration plates and they were tendered to the Court. The evidence was that the appellant’s home address was Park Avenue, Yungaburra. That is consistent with all of the appeal documents filed by the respondent. 

[4] Sgt Erbacher gave evidence that the following day, 28 October 2002, he and Morley were again on patrol on the Gillies Highway near its intersection with Marks Lane. At about 12.30 pm they intercepted the same orange Ford F250 model utility which they had seen the day before and they again observed the appellant to be the driver. When asked to explain, the appellant once again asserted that according to the Magna Carta and the Constitution he was not obliged to have the vehicle registered. 

[5] Maureen Forsayth gave evidence of having searched the Queensland Transport records. She ascertained that the orange Ford F250 utility had previously been registered to the appellant but that the registration expired on 31 July 2002. 

[6] The appellant did not give evidence at the trial and nor did he attempt in any way to dispute the factual evidence given by the prosecution witnesses. In fact, he specifically told His Worship that what the prosecution witnesses had said in evidence was true (T 44 L50). 

[7] As to the first offence of which the appellant was convicted s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 provides as follows:- 

“A person must not use or permit to be used on a road a vehicle that is not a registered vehicle unless – (thereafter the section contains some exceptions, none of which are suggested to apply in the present case). Maximum penalty – 80 penalty units.”

Relevantly, s 5 of the Regulation provides as follows:-

“(1) In this regulation a vehicle is taken to be a registered vehicle if it has current registration under this regulation. (2) In this regulation a vehicle is taken to be an unregistered vehicle if – (a) It has no current registration under this regulation because – ... (ii) it has had registration under this regulation but the registration has expired or been cancelled and (b) Nothing in this regulation permits its use on a road whether or not under limited circumstances.”

On the undisputed evidence the appellant’s vehicle was not a registered vehicle within the meaning of s 5. The fact and place of its use was not disputed. Therefore the appellant was clearly guilty of the offence charged. 

[8] As to the second offence s 76 of the Regulation provides as follows:-

“(1) A person must not, unless the person has a reasonable excuse – make, sell or have in the person’s possession anything that purports to be but is not a registration certificate, registration label, number place or permit. Maximum penalty – 40 penalty units.”

The appellant had the offending number plate attached to his vehicle as if it were a number plate issued pursuant to the Regulation. There can be no doubt that it was not a number plate and by reason of the manner of its use it purported to be a number plate. The appellant offered no reasonable excuse for having it in his possession. He was therefore guilty of the second offence.

[9] As I have said the appellant did not in any way attempt to dispute the prosecution evidence. He accepted that the evidence put forward in the prosecution case was true. Rather, in the court below and on appeal, he directed his arguments towards demonstrating that either the relevant regulation was not a valid law or that other legal rights, which he claimed to have, prevailed over such law. Some of the rights/freedoms which he asserted either in the court below and/or on appeal are as follows:-

(a) Freedom of conscience. (b) Freedom of belief. (c) Right to exercise free will. (d) Freedom of movement. (e) Right of passage on a public road. (f) Right of renunciation. (g) Right of privacy. (h) Rights as an elector.  (i) Right to be empanelled as a juror. (j) Right to form political unions. (k) A common law right to register his vehicle with the entity of his choice. (l) A duty to uphold the teachings of Jesus Christ. (m) Right of peaceful protest. (n) Rights under the Magna Carta 1215. (o) Rights under the Australian Constitution.

[10] What the appellant seems to have conveniently overlooked or failed to appreciate is that there is a hierarchy of laws. The supreme laws so far as Queensland and people within the State of Queensland are concerned, are the laws of the Commonwealth Parliament enacted pursuant to the provisions of the Commonwealth of Australia Constitution Act and the laws enacted by the Queensland Parliament pursuant to the Constitution Act of 1867 as amended (the Constitution of the State of Queensland). I am indebted to Chesterman J for his judgment in the Court of appeal case of Carnes v Essenberg & Ors 1999 QCA 339 (23 August 1999). In that case the appellant was convicted in the Magistrates Court at Kingaroy for offences against s 50 of the Weapons Act. In that case the appellant relied expressly on the provisions of Magna Carta. However, the reasoning which applied to the Magna Carta applies equally to any other rights which may be asserted on the basis of the common law, natural law, the Bill of rights 1688 or any other claimed source of freedom or legal right. His Honour said:- 

“Mr Essenberg has two points. He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding on all courts and governments and that any subsequent developments of legal principle or enactments of parliament that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta are invalid. By its terms he claimed a right to trial by jury. But the proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate. Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he as a citizen has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right. Magna Carta formed part of the system of imperial laws which apply to the colonies of eastern Australian on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English speaking countries of those two enactments are profound. However it is completely inaccurate to say that colonial parliaments or indeed the Parliament of Westminster could not alter, modify or even repeal the provisions of centuries old legislation.

The Australian Courts Act 1828 was enacted by the imperial parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws. Section 24 provided that – “All laws and statutes in force within the realm of England at the time of the passing of this Act shall be 5 applied in the administration of justice in the Courts of New South Wales so far as the same can be applied within the said colonies and it shall be lawful that the governors of the said colonies respectively with the advice of legislative councils of the said colonies to make and establish such limitations and modifications of any such laws and statutes as may be deemed expedient.” The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859. It may be noted also that the Colonial Laws on Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian colonial parliaments could alter Imperial legislation as it applied to the colonies. As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law. The matter is made even more explicit by s 3(2) of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of the State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom. The supremacy of parliament to make laws contrary to what had been the common law is expressly recognised by the courts. It is enough to refer to the decision of the High Court in Kable v The Director of Public Prosecutions 189 CLR 51 at pp 73-74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the common law Chief Justice Coke had, in his institute of the laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments. Justice Dawson went on:-

“Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and it cannot be questioned by reference to principles of a more fundamental kind.”

The passage goes on and concludes:-

“There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.”

That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public.” 

[11] The law making powers of the Legislative Assembly of the State of Queensland are contained in s 9 of the Constitution Act 1867 and still apply. That power is “to make laws for the peace, welfare and good government of the colony in all cases whatsoever”. These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”. See Ibralebbe v The Queen 1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd v King (1998) 166 CLR 1 at 9-10. They have been held to admit of no inquiry by the courts as to whether as a matter of fact or law a particular statute is or is not a prudent exercise of the power or is calculated to attain its particular end or object. See Reil v The Queen (1885) 10 Appeal Cases 673 at 678. 

[12] The Parliament of Queensland passed the Transport Operations (Road Use Management) Act 1995. The Act received Royal Assent on 5 April 1995. All provisions of that Act had commenced by 1 July 1995. 

[13] Section 171 of the Act so far as is relevant provides as follows:-

“(1) The Governor-in-Council may make regulations under this Act. (2) A regulation may be made prescribing offences for a contravention of a regulation and fixing a maximum penalty of not more than 80 penalty units for a contravention.”

Sections 146, 147, 148, 149, 150 and subsection 171(3) give the Governor-in-council power to make regulations covering an enormously wide area of subject matter. In my view there is no doubt that the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 was within the regulatory power given to the Governor-in-Council by the provisions of the Act. The regulation was made by the Governor-in-Council on 30 September 1999 and notified in the Government Gazette of 1 October 1999. All of the original provisions commenced by 1 January 2000. The terms of s 10 and s 76 of the Regulation which I have set out above were in force at the time of the incidents giving rise to the offences with which the appellant was charged. Subject to the provisions of the Commonwealth of Australia Constitution Act the provisions of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 was a valid regulation enacted pursuant to the legislative power of the Queensland Parliament and prevails over all common law or other rights and freedoms to the extent that they are inconsistent therewith. To adopt the words of Chesterman J, the Act and Regulation abrogated any rights which the appellant may have previously had. 

[14] I turn now to the Commonwealth of Australia Constitution Act. Section 4 of the Australian Constitution preserves the law making powers of the State Parliaments subject to the provisions of the Constitution. Section 52 of the Australian Constitution provides for a list of exclusive powers of the Commonwealth Parliament. They did not include the power to make laws in relation to transport operations and road use management. Chapter V of the Australian Constitution deals specifically with the States and preserves the constitution of each of the States. 

[15] The appellant sought to rely on certain sections of the Australian Constitution; I will deal with them briefly in turn. Section 92 of the Constitution provides, so far as is relevant:-

“On the imposition of uniform duties of customs, trade, commerce and intercourse among the States whether by means of internal carriage or ocean navigation shall be absolutely free.”

There is nothing inconsistent with the provisions of the Act and Regulation and s 92 of the Australian Constitution. The provisions of the Act and Regulation dealing with transport operations and road use management and vehicle registration within the State of Queensland having nothing whatsoever to do with trade, commerce and intercourse amongst the States. 

[16] Section 116 of the Australian Constitution provides as follows:-

“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Firstly, the Queensland Acts are not laws purportedly made by the Commonwealth. Secondly, the Act and Regulation have nothing to do with religion. 

[17] Section 117 of the Australian Constitution provides as follows:-

“A subject of the Queen resident in any State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”

In my view this section has no application. Mr Hubner is a resident in Queensland, the relevant laws which he purports to attack are not the laws of any other State, they are the laws of Queensland.

Cheating Sites

Whack a mole? Tertiary Education Quality and Standards Agency v Telstra Corporation Ltd [2021] FCA 1202 comments

1 The applicant, the Tertiary Education Quality and Standards Agency (TEQSA), seeks orders pursuant to s 127A of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) requiring the respondent carriage service providers (CSPs) to take steps to disable access to the online locations at the following domain names: ‘assignmenthelp4you.com’ and ‘assignmenthelp2u.com’, and the associated Uniform Resource Locators (URLs) and Internet Protocol (IP) addresses identified in the amended originating application and Schedule A to the amended concise statement (together, the Online Locations). 

2 The Online Locations (which appear to be operated by a person or persons located in India) are websites which are, or were, accessible to internet users (including in Australia) at the URLs, domain names, and the IP addresses specified in Schedule A to the amended concise statement. The Online Locations advertise or publish an advertisement to students undertaking courses of study offered by various Australian higher education providers, and offer services which include assignment, dissertation and essay writing for a fee. Those higher education providers include the University of Sydney, the University of New South Wales, La Trobe University , the University of Technology, the University of Melbourne, the University of Western Australia, the University of Queensland, the University of South Australia and the Australian Institute of Business and Management Pty Ltd (trading as King’s Own Institute). 

3 Although the site-blocking orders are sought in respect of two domain names, URLs and IP addresses, it is contended by TEQSA that they emanate from the same source and advertise the same service in substantially the same terms. This is in a context where the online location at the domain name ‘assignmenthelp4you.com’, became inaccessible (at least temporarily) very shortly after TEQSA notified the operator of this application. Around the same time, the online location became accessible at the domain name ‘assignmenthelp2u.com’, revealing strong similarities to ‘assignmenthelp4you.com’. 

4 The basis of the application for the orders sought is that the Online Locations advertise, publish or broadcast advertisements for an academic cheating service to students undertaking Australian courses of study with higher educator providers thereby, (at least) facilitating a contravention of s 114B(2) of the TEQSA Act. 

5 Each of the respondents is a CSP within the meaning of s 5 of the TEQSA Act and s 87 of the Telecommunications Act 1997 (Cth), and provides access to the internet for users of its internet service in Australia. Each of the respondent CSPs were notified of this application in accordance with s 127A(6)(b) of the TEQSA Act and have filed submitting appearances. 

6 No entity has opposed the orders that TEQSA seeks, nor contested the facts and contentions set out in TEQSA’s amended concise statement. ... 

10 As noted above, this application is based on a contravention of s 114B(2) which is relevantly in the following terms:

114B Prohibition on advertising academic cheating services (1) A person commits an offence if: (a) the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider: (i) an Australian course of study; or (ii) an overseas course of study provided at Australian premises; and (b) either: (i) the person does so for a commercial purpose; or (ii) the academic cheating service has a commercial purpose. Penalty: 2 years imprisonment or 500 penalty units, or both. (2) A person contravenes this subsection if the person advertises, or publishes or broadcasts an advertisement for, an academic cheating service to students undertaking, with a higher education provider: (a) an Australian course of study; or (b) an overseas course of study provided at Australian premises. Civil penalty: 500 penalty units.

11 These provisions were introduced into the TEQSA Act by amendments in 2019. The Explanatory Memorandum to the Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019 (Cth) (the Bill) introducing ss 114B and 127A, stated: Section 127A will be particularly important to reduce the visibility of, and ease of access to, overseas websites that provide or advertise cheating services. While prosecution of overseas website operators and content authors may be difficult, blocking of these sites by internet service providers...is an action that can be taken from within Australia and will go some way to reducing their availability and impact. 

12 This is the first application under s 127A. That said, the Copyright Act 1968 (Cth) contains s 115A, which is a similar provision to s 127A. Section 115A provides, in that context, for site-blocking injunctions against foreign online locations that have the primary purpose or effect of infringing copyright or facilitating copyright infringement. ... 

24 I am satisfied that, as TEQSA submitted, the persons operating the Online Locations are advertising an academic cheating service to students undertaking an Australian course of study with a higher education provider, in contravention of s 114B(2). It follows that the Online Locations are facilitating the operators’ contravention of (at least) s 114B(2) for the purpose of s 127A(1) of the TEQSA Act. 

25 The below statements made on the website of ‘assignmenthelp4you.com’ (and exhibited in screenshots taken by Ms Pritchard in April and May 2021) reveal, inter alia, that it variously advertised and published the following services: ‘Find Best Academic Writers for Hire! Get Classroom Assignment Writing Service Acquire world’s best online assignment writing service at cheaper rate! ... No plagiarism policy – Enhance your academic grade with scoring high in each assignment! ... Order An Assignment!!’. ‘Buy Premium Writing Services’, ‘we deliver assignments of high quality that always meets your requirement and urgent deadlines, ‘...we deliver ....tailored academic papers...’, ‘expertise in composing dissertations for students...’, ‘Buy custom essay from professional writers’: ‘Buy Custom Essay - Acquire Top Quality Essay Writing Service!’, ‘Completely original and authentic papers ... Timely assignment delivery’, ‘If a student... cannot give much to complete their assignments, therefore, students hire a professional essay writer to ease their academic stress’, ‘The affordable essay help is served by our tutors as the own high experience and professional skills thus we have hired best writers who know how to tackle the difficult academic tasks of students’. ‘If you have a tight deadline and your assignment date is near, our experts can prepare your assignment on an urgent basis also’, ‘We also ensure you about the quality of assignment done by our academic writers. Assignment writers of Assignmenthelp4you have the potential to write lengthy or complicated assignments of any subject in the last minutes of submissions’. 

26 These statements show that the website ‘assignmenthelp4you.com’ advertised an academic cheating service as defined in s 5 of the TEQSA Act. 

27 This service was expressly advertised as being delivered to students in Australia, amongst others. So much is evident from the following examples (also taken by Ms Pritchard in April and May 2021), as set out by TEQSA in its submissions: (a) The Online Location available at assignmenthelp4you.com included a page titled ‘Acquire La Trobe University Australia Assignment Help By Hiring Academic Experts At Best Prices! It invites students to ‘come to us anytime and avail the benefits of our trustworthy La Trobe University Australian assignment help service’, and sets out a ‘List of Topics Covered by Courses of La Trobe University Australia’, including FIN1FOF Fundamentals of Finance and ACC1AMD Accounting for Management Decisions. (b) The Online Location available at assignmenthelp4you.com also included a similar page in relation to ‘Kings Own Institute’, which makes reference to courses including ACC301 Tax Law and FIN200 Corporate Financial Management. (c) Further, the Online Location available at assignmenthelp4you.com made reference to a large number of other Australian tertiary education institutions, including RMIT University , Charles Sturt University, University of Melbourne, University of Queensland, University of Technology Sydney, University of New South Wales, University of Western Australia, etc. 

28 Ms Pritchard’s evidence establishes that the subjects referred to in subparagraphs (a) and (b), recited above, are subjects offered by Australian higher education providers, and each of the institutions referred to in subparagraph (c) are on the National Register of Higher Education Providers, which TEQSA is required by ss 198(1) and 198(5) of the TEQSA Act to establish, maintain and make available for inspection on the internet. Indeed, of the 70 institutions listed on ‘assignmenthelp4you.com’, 54 were higher education providers for the purposes of the TEQSA Act.

Contract Management

Yesterday's ANAO report Management of the Civil Maritime Surveillance Services Contract comments 

1. Civil maritime surveillance has been identified by the Department of Home Affairs (Home Affairs) as important to deterring, preventing, detecting and responding to civil maritime threats, including illegal maritime arrivals as part of Operation Sovereign Borders. Following a tender process, on 3 March 2006 a contract commenced between the Australian Government1 and Surveillance Australia Pty Ltd (Surveillance Australia) for the provision of a ‘Detect-Classify-Identify-Report’ surveillance service to inform ‘maritime zone awareness’. 

2. The contract requires the provision of 10 fixed-wing Dash–8 aircraft (six Dash–8 202 and four Dash–8 315), modified with specialised surveillance information management system (SIM) equipment which links aerial surveillance assets to the Australian Border Operations Centre. The contractor is required to provide 15,000 flying hours per annum. Home Affairs is to make monthly payments comprising a service charge (covering one twelfth of the annual fixed charge, an hourly charge and any monthly performance deductions) and reimbursable expenses (including landing and navigation charges and accommodation and meal allowances). 

3. At the time it was entered into, the contract was to expire on 31 December 20192 and had a reported value of $1,187 million.3 Since the contract was executed, there have been 40 contract change proposals (CCPs) approved and Home Affairs has identified that these have significantly reshaped the contract. 

Rationale for undertaking the audit 

4. The contract with Surveillance Australia is the larger of two4 that are in place under ‘Project Sentinel’ for aerial surveillance to prevent people smuggling and manage other maritime threats across the North West approaches of Australia. This ANAO performance audit commenced in the second last year of the extended 14 year contract term to: assess and provide transparency over the services that have been provided to date; provide independent assurance to the Parliament as to whether Home Affairs is managing the provision of contracted services effectively given their importance to Project Sentinel; and examine whether there has been appropriate planning for the end of the contract on 31 December 2021. 

5. This audit was undertaken in a similar timeframe to a separate audit of the Management of the Search and Rescue Contract by the Australian Maritime Safety Authority (AMSA), which provided an opportunity to compare and contrast two aircraft service contracts (and their management) with contractors that are subsidiaries of the same parent company, Cobham Ltd (Cobham). The report of the audit of AMSA was tabled on 18 January 2021 (Auditor-General Report No. 27 2020–21) and concluded that AMSA’s management of the search and rescue contract has been fully effective. 

Audit objective and criteria  

6. The audit objective was to assess whether the Department of Home Affairs is effectively managing the Civil Maritime Surveillance Services contract. 

7. To form a conclusion against the objective, the following high level criteria were adopted: Has the contract delivered against the planned cost, scope and delivery timeframe? Have the specified surveillance assets been provided? Have the specified surveillance services been provided? 

8. At the time the audit commenced, there was a fourth criterion (‘Has there been appropriate planning for the end of contract?’) and the audit scope was to include the transitional arrangements in place for the period post the expiry of the contract on 31 December 2021. In December 2020, twelve months6 out from the expiry of the contract and with no further extension options available, the Secretary of Home Affairs did not agree to a recommendation from his department that he agree to issue a Request for Quote to the incumbent provider to continue providing services. 

9. As a result of the path forward not having been resolved by Home Affairs by December 2020, the Auditor-General decided to remove the fourth criterion from the scope of the audit. As at August 2021 with four months remaining on the current contract, there are no arrangements in place for the next contract. 

Conclusion 

10. The department’s management of the Civil Maritime Surveillance Services contract has not been effective and, as a result, while surveillance services have been provided, the quantum and range of those services has fallen short of the contractual requirements. 

11. The contract has not been managed to secure delivery in line with the planned cost, scope and delivery timeframe. The contract has been varied on 40 occasions as of March 2021 with the effect of significantly changing the scope of the services to be delivered and increasing the term and value of the contract. The department has recognised that variations to the contract have significantly reshaped it and those variations have increased the cost by more than 29 per cent. There has been a high turnover of officers responsible for the management of the contract and the department has not ensured that each of its contract managers had appropriate training or experience. 

12. There were shortfalls and delays in the provision of the contracted surveillance assets. At the commencement of services under the contract, delays in the modification program meant that four fully compliant aircraft were not available and nine of the 26 required aircrews were not provided. There was also a delay in the provision of the SIM required for the acceptance of the full surveillance system. The department did not effectively apply the contractual framework to manage the shortfalls and delays. 

13. Home Affairs has not received the required quantum of surveillance services and the aircrew requirements have not been met. Under the contracted performance framework, Home Affairs has calculated that Overall Contract Performance (OCP) has met the specified 90 per cent threshold for 92 per cent of the period from 1 January 2008 to 31 December 2020. In contrast to this high level of calculated performance: the contracted Rate of Effort (RoE) in terms of hours flown has not been achieved in any year and has fallen short by an average of seven per cent each year; of the total missions planned, 25 per cent have only been partially completed and a further 11 per cent have been cancelled or aborted; and aircrew requirements have never been met with the number of aircrew on average each month 33 per cent below that contracted (where data is available for analysis). 

Supporting findings 

Contract delivery against planned cost, scope and timeframe 

14. With an authorised cost of $1,187.3 million or $98.9 million per annum, the department contracted in March 2006 for the delivery of civil maritime surveillance services to December 2019, with an option to extend for a further two years. The contract requires that Surveillance Australia provide 10 Dash–8 aircraft, to be operated from bases at Darwin, Cairns, Broome and Horn Island from the scheduled handover date of 1 January 2008; the delivery of the SIM, and the provision of 26 aircrew to meet the annual planned rate of 13,613 flying hours. 

15. The contract has been subject to 40 variations, with a significant variation to further extend the contract approved by the department in March 2021. The department has recognised that the variations have significantly reshaped the contract. The variations have also increased its duration by two years to date and have increased the authorised cost by more than 29 per cent. 

16. Contract managers have not been provided with appropriate training and have not had appropriate experience. Contract managers have also not received appropriate support due to there being no approved contract management plan in place until August 2018, more than 12 years after the contract commenced. There has been significant turnover in contract management staff, in addition to contract management responsibilities changing a number of times, exacerbated by the poor state of records from the time the contract was entered into. Action has recently been taken by the department to improve the resourcing of the management of the contract.

And on and on it goes.