Brandeis

'History and Turning the Antitrust Page' by Brian R. Cheffins in Business History Review (Forthcoming) comments 

Present-day advocates of antitrust reform referred to as “New Brandeisians” have invoked history in pressing the case for change. The New Brandeisians bemoan the upending of a mid-20th century “golden age” of antitrust by an intellectual movement known as the Chicago School. In fact, mid-20th century enforcement of antitrust was uneven and large corporations exercised substantial market power. The Chicago School also was not as decisive an agent of change as the New Brandeisians suggest. Doubts about the efficacy of government regulation and concerns about foreign competition did much to foster the late 20th century counter-revolution antitrust experienced.

I'm probably a neo-brandeisian.

Identity Scams

A media release from the US Attorney’s Office (Southern District of New York) notes the arrest of Filippo Bernardini over an online impersonation scheme over several years to fraudulently obtain prepublication manuscripts of hundreds of books. Bernardini is charged with aggravated identity theft, which carries a mandatory consecutive sentence of 2 years in prison, and wire fraud (a maximum sentence of 20 years in prison). 

 U.S. Attorney Damian Williams said: “Filippo Bernardini allegedly impersonated publishing industry individuals in order to have authors, including a Pulitzer prize winner, send him prepublication manuscripts for his own benefit. This real-life storyline now reads as a cautionary tale, with the plot twist of Bernardini facing federal criminal charges for his misdeeds.” 

Assistant Director-in-Charge Driscoll said: “Unpublished manuscripts are works of art to the writers who spend the time and energy creating them. Publishers do all they can to protect those unpublished pieces because of their value. We allege Mr. Bernardini used his insider knowledge of the industry to get authors to send him their unpublished books and texts by posing as agents, publishing houses, and literary scouts. Mr. Bernardini was allegedly trying to steal other people's literary ideas for himself, but in the end he wasn't creative enough to get away with it." 

Beginning in at least August 2016, Bernardini, who was based in London and worked in the publishing industry, began impersonating agents, editors, and other individuals involved in publishing to fraudulently obtain prepublication manuscripts. These prepublication manuscripts are valuable, and the unauthorized release of a manuscript can dramatically undermine the economics of publishing, and publishing houses generally work to identify and stop the release of pirated, prepublication, manuscripts. Such pirating can also undermine the secondary markets for published work, such as film and television, and can harm an author’s reputation where an early draft of written material is distributed in a working form that is not in a finished state. 

In carrying out this scheme, Bernardini created fake email accounts that were designed to impersonate real people employed in the publishing industry, including literary talent agencies, publishing houses, literary scouts, and others. Bernardini created these accounts by registering more than 160 internet domains that were crafted to be confusingly similar to the real entities that they were impersonating, including only minor typographical errors that would be difficult for the average recipient to identity during a cursory review. Among other things, Bernardini often replaced the lower-case letter m with the lower-case letters r and n, which, when placed together as rn, resemble an m. For example, in or about September 2020, Bernardini utilized a fraudulent email address impersonating a well-known editor and publisher (“Editor-1”) who worked for an imprint of a U.S. publishing house (“Publisher-1”). Impersonating Editor-1, Bernardini emailed a Pulitzer Prize winning author (“Author-1”) and requested a copy of a word version of Author-1’s forthcoming manuscript, which Author-1 sent to Bernardini, believing him to be Editor-1. Over the course of this scheme, Bernardini impersonated hundreds of distinct people and engaged in hundreds of unique efforts to fraudulently obtain electronic copies of manuscripts that he was not entitled to. 

In addition, Bernardini engaged in a phishing scheme to surreptitiously gain access to a database maintained by a New York City-based literary scouting company (“Scouting Company-1”). Bernardini created a webpage that impersonated Scouting Company-1’s website. Then, in or about July 2020, Bernardini impersonated a Scouting Company-1 employee and emailed two individuals, directing them to Bernardini’s look-alike webpage and prompting the users to provide their usernames and passwords. Bernardini’s webpage was programmed to automatically forward the input usernames and passwords to an email account controlled by Bernardini.

In Sarac v. Wilstar Management Ltd., 2021 ONSC 7776 the Ontario Superior Court of Justice considered an OPCA and 'pretendian' argument. 

The Court states 'in some cases, the claim is not just hopeless on its merits, but is wickedly abusive on its face. Giving notice in those cases can just allow the plaintiff to continue his abuse and utilize ever-more-scarce judicial resources. 

 [5] This is one such case. For the reasons that follow, this action is dismissed as frivolous, vexatious, and an abuse of process under Rule 2.1.01 (1) and I expressly order that the written hearing process set out in Rule 2.1.01 (3) is not applicable. 

[6] Although only Mr. Sarac is named as plaintiff in the title of proceedings, the body of the statement of claim purports to advance claims on behalf of both Mr. Sarac and a person who refers to himself as “Grand Chief Wabiska Mukwa”. 

[7] It appears from the statement of claim that Mr. Sarac is suing his former landlord, one of its employees, and an employee of the Sheriff’s office in Toronto, to contest an eviction order made by the Landlord and Tenant Board. The rest of the claim is the familiar claim that has been advanced by Grand Chief Mukwa and rejected by several judges of the court previously. 

[8] Grand Chief Mukwa purports to represent two groups for hire who will advance claims in court phrased as assertions of Indigenous rights on behalf of clients like mortgage borrowers, tenants, or others who find themselves in legal troubles. Grand Chief Mukwa makes claims that North America (that he refers to as Turtle Island) is unceded land belonging to his “nations” and thereby denies the authority of the laws of Canada, any province, and the courts over him and his client. 

[9] Justice Akbarali described Grand Chief Mukwa’s litigation scheme in Mukwa v. Farm Credit Canada, 2021 ONSC 1632:

[17] At the hearing, Chief Grand Wabiska Mukwa indicated that he, as Chief Justice of his Indigenous Nation, was participating in the hearing together with the plaintiffs whose rights he states are being attacked. 

[18] The title of proceedings for the plaintiffs’ claim and amended claim state that the pleadings are issued in conjunction with “ASKIT” and “Kinakwii Indigenous Tribunal.” [19] The evidence before me indicates that Chief Wabiska’s email address, which includes the phrase “askit4equity,” is linked to a website advertising the Anishinabek Solutrean Metis Indigenous Nation (“ASMIN”), which claims to be one of the oldest unsurrendered, untreatied matriarchal Indigenous Nations of Turtle Island. For $225, anyone can become a member of the ASMIN nation on filling out an application. 

[20] The Kinakwii National website suggests that Kinakwii Nation was founded by William Allan of the Baldwin family and Jon of the Maskell family under certain notices which are in evidence before me. For $300 annually, anyone can become a member of the Kinakwii Nation on filling out an application. 

[21] Neither the ASMIN nor the Kinakwii Nation are recognized as a First Nation on a comprehensive list of all First Nations across Canada that is compiled by Crown-Indigenous Relations, Northern Affairs Canada, and Indigenous Services Canada. [Emphasis added.]

[10] Justice Akbarali went through each of the arguments raised by Grand Chief Mukwa and dismissed them as Organized Pseudolegal Commercial Arguments (“OPCA”). The term OPCA describes a number of abusive litigation tactics discussed in Meads v. Meads, 2012 ABQB 571. 

[11] In National Bank of Canada v. Guibord, 2021 ONSC 6549 (CanLII), Mew J also dismissed summarily all of Grand Chief Mukwa’s claims. 

[12] As in those prior cases, the statement of claim in this case asserts, among other things, that: 

a. Mr. Sarac’s land is unceded or was never surrendered to Canada under the Royal Proclamation of 1763; 

b. Mr. Sarac claims the land back for the unconquered Metis People; 

c. The defendants’ trespass against the Mr. Sarac has been registered with the ASKIT and Kinakwii Indigenous Tribunal that has been recognized by the Ontario Court of Appeal; 

d. Mr. Sarac and Grand Chief Mukwa make a land claim for jurisdiction over Eastern Canada and BC (with certain exceptions for recognized Indigenous lands); 

e. Mr. Sarac and Grand Chief Mukwa claim $329 billion for non-payment of rent to the Clan Mothers of North Eastern Region of Turtle Island (Eastern Canada); 

f. Mr. Sarac and Grand Chief Mukwa command consultation with the Crown; 

g. Mr. Sarac and Grand Chief Mukwa command quo warranto requiring Parliament and Crown Agents to prove that Ottawa, or Toronto, or Cambridge are not on unceded land; that the BNA Act of 1867 received Royal Assent; that the BNA Act was passed by the British Parliament with a quorum; that the BNA Act was not repealed by the Statute Law Revision Act of 1893; that Canada satisfied s. 59 Language contingency of the Canada Act of 1982; and provide any lawful treaty for lands known to the UN as Canada with Non Status Kinakwii Nation and Sovereign ASMIN.

[13] The statement of claim has a section labelled “Facts” that pleads:

... 19. Wabiska Mukwa is an Ansihinaabe man, who is the great, great (etc.) grandson of the French Explorer Jean Nicolet, who was the Interpreter for Champlain in the early 1600's, and who fathered the first Metis child near Lake Nipissing circa 1626-28. 

20. Wabiska [Mukwa] is both the Grand Chief of ASMIN, and its Chief of Justice who supervises ASMIN's Indigenous Tribunal ASKIT and Kinakwii's KIT. His family extends through 7 Indigenous lineages, totaling over 6 million People, who have resided all over Eastern Canada, and B.C., for thousands of years, prior to the arrival of Jean Nicolet. 

21. Wabiska [Mukwa]'s native heritage traces back thousands of years to Kanata, Bolivia, which is where 'Canada' got its name from. 

22. Amir [Sarac] is an Anishinaabe man, who immigrated to Turtle Island, but who has Indigenous roots in Europe, and who was adopted into ASMIN. .. 

 24. The Crown began to steal the Resources of Canada without any Treaty, and promised to place said profits from the Resources into an Indian Trust, which Indian Trust was merged into a Consolidated Fund in Ottawa via the Indian Act of 1951. 

25. Canada Inc. was then registered on the SEC in Washington, D.C. in order to trade in Securities, aka the U.S. Bank Note debt system, which enables the Central Bank in New York to print currency in its computers, without any lawful basis, in order to control trade on Turtle Island by offering Landlords like WILSTAR MANAGEMENT both the means, and the mortgage to buy up Indigenous Land without Treaty or purchase from the Clan Mothers. 

26. Both The Indian Act and The BNA Act of 1867 did not receive 3 Readings and do not have Royal Assent. The BNA Act of 1867 was repealed by the UK Statute Law Revision Act of 1893, and became a Nullity. 

27 .Both The BNA Act of 1867 and The Canada Act of 1982 were passed only in the UK Parliament, and, according to British Imperial Policy (a.k.a. Aboriginal Common Law), have no Jurisdiction over Peoples who are Un-Conquered, like the Indigenous People living on Turtle Island (North and South American and The Caribbean). 

28. Amir [Sarac] was dragged into a foreign Tribunal, being The Ontario Landlord and Tenant Board, in violation of the British Imperial Policy (as cited by the SCC in R v Desautel), where Amir [Sarac] gave a "consent" that was not informed, and that was given without prior Consultation with the Crown. Amir [Sarac]'s Plea regarding his Standing on his own Land as an Indigenous Tenant, under Indigenous Laws, Customs and Traditions were ignored, even though Canada's Parliament had ratified UNDRIP.

[14] Recall that Mr. Sarac claims to have been a residential tenant. He has no claim to title to the land on which his rental unit was located. In addition, ASMIN and Kinakwii are not First Nations. They are groups that can be joined online by anyone for a few hundred dollars. Mr. Sarac pleads that his indigeneity traces from European roots – not from Canada’s Indigenous Peoples – and he was “adopted into ASMIN” i.e. he paid his $225 online fee. 

[15] None of Mr. Sarac, Grand Chief Mukwa, or his two groups speak for the Metis People. 

[16] If there is an ASKIT and Kinakwii Indigenous Tribunal, it is certainly not a domestic tribunal exercising a jurisdiction on behalf of a First Nation that has been recognized by the Court of Appeal for Ontario. 

[17] In her decision discussed above. Akbarali J. made it clear that a “challenge to Canadian sovereignty, validly enacted legislation, constitutional documents, and land surrenders” is not justiciable. 

[18] As discussed by Mew J., there is a time and a place for Indigenous land claims. This is a residential landlord and tenant case in which Canada is not even a party. The Crown’s constitutional obligations to consult with Indigenous People have nothing to do with this matter, the plaintiffs, or their groups. 

[19] In Farm Credit Canada v. 1047535 Ontario Limited et al., 2021 ONSC 2541 (CanLII), Sweeny J. (as he then was) dismissed many of the same claims under Rule 2.1 as follows:

[28] The pleading in this case is not a close call. It is plainly vexatious. Resorting to the attenuated process of rule 2.1 is appropriate. 

[29] The words used in the pleading, the form of the pleading including appendices, are all consistent with the illegitimate litigation tactics commonly referred to as “organized pseudo-legal commercial arguments”, as described in Meads v. Meads, 2012 ABQB 571. … 

[31] This pleading is a game designed to frustrate the system and inflict unrecoverable expense and needless stress on the plaintiff, Farm Credit Corporation. The nature of the counterclaim seeks to frustrate the system and inflict unrecoverable expense and needless stress on the defendants to the counterclaim and the individuals who are purported to be named in the amended statement of defence and counterclaim.

[20] The civil justice system must protect itself from blatant abuses of its process to preserve its resources for the litigants who truly need them. Grand Chief Mukwa has had several opportunities to explain how his claims and processes are anything other than legal gibberish designed to frustrate our already over-burdened civil justice system. 

[21] No private defendant has to be called into this court to prove that Canada and Ontario are sovereign and do not derive their plenary constitutional jurisdictions from the US Securities and Exchange Act. Neither does a tenant get to hold up his eviction by suing his landlord for $329 billion dollars allegedly owing by Canada to its Indigenous Peoples. 

[22] If the plaintiff actually launched a proper and timely appeal from the Landlord and Tenant Board’s ruling, he might find a statutory stay of the eviction more to his liking. Instead, whether by design or through clever marketing, the plaintiff has retained Grand Chief Mukwa as his “guru” (as described by Rooke ACJA in Meads) to bring these same claims that have been repeatedly dismissed summarily by this court. 

[23] All that is happening is that, for money, Grand Chief Mukwa and his groups are trying to help the plaintiff fend off a residential eviction by tying up the courts in his OPCA claims. 

[24] Grand Chief Mukwa’s claims have been held to be invalid legal non-sequitors numerous times by numerous judges. He knows they are not real claims that have any legal validity. There is nothing left to hear from him. In fact, devoting time to dealing seriously with OPCA claims that are knowingly frivolous and vexatious just plays into the hands of the gurus who gain status and profit from the court engaging in their games as if they assert justiciable legal questions. 

[25] This country recognizes that real injustices have been inflicted upon its Indigenous communities including the Metis People. Litigants who try to avoid their financial responsibilities by wrapping themselves in the garb of Indigenous Peoples’ real victimhood and suffering to tie up the courts with illegitimate and abusive claims deserve not another moment of court time or attention.

Crime

'Cosa Nostra Courts' (GMU Working Paper in Economics No. 21-42) by Henry A. Thompson comments 

This paper uses economic reasoning to analyze the traditions and institutions of one of the most successful criminal organizations in modern history: La Cosa Nostra (LCN). Drawing on recently declassified FBI reports, the paper's analysis shows that LCN's core institutions are best understood as attempts to protect its secrecy, an asset vulnerable to free riding by its own members. Individual members did not bear the full costs of secret-revealing police investigations and thus had a perverse incentive to resolve disputes violently. LCN preserved its secrecy by incentivizing peaceful reconciliation. La Cosa Nostra rules, and, more importantly, its informal court system, kept disputes from escalating into violence, thereby helping LCN avoid secrecy-threatening investigations. As a result, LCN has become one of the most successful and long-lived criminal organizations in the U.S.  

Visas

'Assessing Refugee Protection Claims at Australian Airports: The Gap Between Law, Policy and Practice' by Regina Jefferies, Daniel Ghezelbash and Asher Hirsch in (2020) 44(1) Melbourne University Law Review comments

Australia’s current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs (DHA) under the Freedom of Information Act 1982 (Cth), which establishes the administrative process of ‘entry screening’. The article examines entry screening within the transnational framework governing Australia’s legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter ‘unauthorised mar time arrivals’ have similar manifestations — and consequences — for ‘unauthorised air arrivals’. The article then turns to an analysis of domestic law, arguing that the Migration Act 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia’s international legal obligations of non-refoulement and non-penalisation. 

Despite playing a key role in the development of the post-World War II international refugee law framework, in recent years Australian practice has openly challenged well-settled international legal norms through the use of policies meant to deter individuals from seeking protection in Australia. While much scholarly and public attention has been directed towards the Australian government’s attempts to create zones free of legal protections and judicial review through the use of externalisation policies such as offshore detention and interdiction at sea — essentially leveraging physical spaces away from the Australian mainland to effect policy objectives — information recently released by the De- partment of Home Affairs (‘DHA’) in response to requests under the Freedom of Information Act 1982 (Cth) (‘FOI Act’) reveals the creation and maintenance of similar zones on the Australian mainland. 

A number of recent media reports concerning people seeking asylum at Australian airports demonstrate Australia’s approach to people seeking asylum by air. In February 2019, an Australian Broadcasting Corporation (‘ABC’) investigation found evidence that the Australian Border Force (‘ABF’) had turned back at least two young Saudi Arabian women at Sydney Airport after the women requested asylum. The ABC reported that one of the women, called Amal, arrived at Sydney Airport in November 2017 when ABF officials became suspicious that she intended to request asylum. After informing Amal that she would not be allowed to enter Australia, Amal made clear her intention to claim asylum to officials, which the ABF apparently denied. Amal was then transferred to an immigration detention centre, where she was not offered a lawyer, before being removed to South Korea (where she had boarded her flight to Australia). 

In November of the same year, the Guardian Australia reported that two gay journalists from Saudi Arabia had been detained after seeking asylum at an Australian airport. The men fled Saudi Arabia, where homosexuality is illegal and punishable by death, after being outed as gay by Saudi state security. According to their Australian lawyer, the men had already cleared passport control on valid tourist visas before ABF officials in customs inspected their bags and phones and asked if they intended to apply for asylum. When the men indicated that they did intend to apply for asylum they were detained. They were released from detention on bridging visas in December 2019. These incidents do not appear to be isolated, though the DHA does not keep accurate data regarding the number of individuals who have raised protection claims at Australian airports. 

The transnational framework governing Australia’s legal obligations towards individuals seeking international protection, like Amal and the men discussed above, consists of a complex web of legal sources including international law, domestic legislation, judicial decisions, administrative law, and executive power. International law provides the footing upon which the Australian domestic protection framework rests, however imperfectly. Australia’s ability to act is underpinned by the international legal norm of non-refoulement, which prohibits the return or removal of an individual to a place where they risk persecution or other serious harm, as well as by rule of law principles such as procedural fairness. While reflected in international treaties, the principle of non-refoulement also forms part of customary international law, and Australian domestic law. Yet successive federal governments have taken explicit steps to weaken the application of the obligation of non-refoulement, in part by framing full and effective implementation of the obligation as being at odds with state sovereignty. 

Whether the Saudi cases represent a small segment of individuals removed from Australia after seeking asylum, or whether their stories form part of a larger pattern of behaviour is not known. The DHA has confirmed that although ‘referrals for persons seeking to engage Australia’s protection claims are in fact recorded’, the DHA’s record keeping procedures render it impossible to determine ‘the total number of persons raising protection claims at Australia’s borders.’ Until recently, little conclusive information was publicly available regarding the current entry screening procedures for individuals seeking protection at airports on the Australian mainland. This article brings those procedures to light, while analysing their domestic and international legal implications. 

Part II of this article examines the entry screening procedures for individuals who seek protection before, or during, immigration clearance at an Australian airport. This Part defines key terms and explores the content and operation of the policy guidance and procedural instructions. This article does not address the procedures for individuals who seek protection after passing through immigration clearance, as those claims are subject to a different process. Part II concludes with an examination of the claimed statutory basis for the policy, as well as the legal protection framework within which the entry screening procedures are meant to operate. Part III then turns to an analysis of the various domestic legal and practical issues implicated by the entry screening process, as well as potential bases for challenging the policy and procedures. This Part explores the right to access to counsel and the right to visa application forms where a non-citizen is detained, as well as the lack of review of entry screening decisions, the validity of the entry screening process under the Migration Act 1958 (Cth) (‘Migration Act’) and the practical considerations that impede an individual’s ability to raise these claims while detained at an airport. 

Part IV examines the international law implications of the entry screening procedures, including the interplay between the entry screening procedures and the obligation of non-refoulement as contained in various international refugee law and human rights treaties, as well as the prohibition on state penalisation of refugees and asylum seekers on account of their illegal entry or presence under international law. This Part seeks to initiate a deeper exploration of the international law implications of a policy that has not previously been the subject of scholarly consideration. Part V concludes that the entry screening procedures may be inconsistent with both domestic and international law. 

As vividly demonstrated in the two Saudi cases, the entry screening procedures go beyond a simple inquiry into whether an individual is seeking protection. Rather, entry screening enables discretionary decision-making as to the strength and validity of a protection claim in a procedure lacking transparency and largely shielded from judicial review.

Sovereigns and Supervision

In Hardy v State of New South Wales [2021] NSWCA 338 late last month the NSW Supreme Court has dismissed an appeal regarding a supervision order imposed pursuant to the terms of the Terrorism (High Risk Offenders) Act 2017 (NSW). Hardy's conviction was noted here. 

The Act provides in s 10 - 

 (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender: ... 

(c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. 

(1A) Without limiting subsection (1) (c): 

(a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and 

(b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. 

(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). 

 In dismissing the appeal the Court notes 

[15] The primary judge inferred, from the circumstances and nature of his first offence committed on 3 March 2017, that the appellant had made a statement advocating support for violent extremism. The offence arose from the delivery of two envelopes to the office of his local member of the Legislative Assembly. On the outside of each envelope the following appeared:

“To The Minister 

You in TREASON ... you will be hung untill you are dead 

No Mercy, No Prisoners 

You are scum” 

[16] Inside the envelopes was printed material to the effect that the Commonwealth was a corporation made up of corporations controlled by foreign corporations. The views expressed were consistent with those of the so-called Sovereign Citizen Movement (“SCM”), originally an American group which promotes the view that the government is unlawful and immoral and that individuals are entitled to resist the enforcement of its laws. 

[17] In May 2017 the police searched the appellant’s premises and located prohibited weapons, including two torch batons, a number of knives (some ceremonial) an air gun that could be mistaken for a handgun, and a large volume of written material relating to beliefs promoted by the SCM. Other documents found on the premises included material downloaded from the internet involving blueprints for the manufacture of plastic firearms by use of a 3D printer. He had also obtained a 3D printer. 

[18] With respect to the hand-delivered letters to the office of the local member, the appellant was charged with sending a document threatening death or grievous bodily harm, being an offence under s 31(1) of the Crimes Act 1900 (NSW) and carrying a maximum penalty of 10 years’ imprisonment. He was also charged with three offences of possessing a prohibited weapon or an unregistered firearm. He was sentenced in the Local Court to an aggregate sentence of 16 months imprisonment, with a non-parole period of 12 months, to date from 19 September 2017. 

[19] A further search of his premises was conducted on 3 October 2018, at which time a USB was seized which contained hundreds of files, including written materials expressing anti-government sentiments and a large number of files containing digital blueprints for 3D printing and manufacture of both real and replica firearms. On 20 November 2018 he was arrested and charged with 12 offences relating to the digital blueprints. He was eventually sentenced on a plea of guilty for the firearm offences. On 11 December 2020 he received an 18 months intensive correction order, including 350 hours of community service work, which would have commenced on that day. The offending conduct was his possession of 411 digital blueprints from which 12 different firearms could be produced on a 3D printer.

Temporal Contigency

From Tim Parks' review in (2022) 44(1) London Review of Books of Joseph Farrell, Honour and the Sword: The Culture of Duelling (Signal, 2021) -

Between the third and fifth centuries of the Christian era the major world religions ceased to sacrifice animals to appease their gods. For reasons that remain unclear, a practice that had been central to devotional behaviour for thousands of years came to appear grotesque. Joseph Farrell observes that the practice of duelling is now similarly ‘uniformly judged as outlandish and incomprehensible’, its ‘canons and creeds ... as beyond recall as the beliefs of the ancient Egyptians’. For five hundred years men of a certain rank settled disputes with sword or pistol in accordance with an elaborate etiquette involving a formal challenge, the appointment of seconds and the negotiation of a time and place for a contest governed by strict rules. The angry brawl was drained of passion, made mindful and even elegant. A doctor was always on hand, but deaths were common. Then, in the second half of the 19th century, the practice declined and disappeared. It’s ‘the sheer incomprehensibility’ of all this that prompted Farrell to write his book. If the duellists were Christian gentlemen, he asks, why did they not see the duel’s incompatibility with basic morality? Why didn’t the state intervene more effectively to prevent individuals from taking the law into their own hands? Why were so many men willing to risk their lives over disputes that often seem trivial?

Gouging

'Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices During Times of Crisis' by Mark Giancaspro in (2021) 44(4) UNSW Law Journal 1458 comments - 

 Recent crises affecting Australia, including the Black Summer bushfires and Coronavirus pandemic, have devastated social morale and crippled our economy. Countless lives and properties have been damaged or lost. These conditions have inflated demand for basic consumer goods and services, such as hygiene products, staple foods, and utility services. Sadly, some sellers have exploited public desperation, with widespread reports of price gouging. This notorious practice involves pricing high-demand essentials at levels significantly higher than what is commonly considered acceptable, reasonable or fair. This article critically analyses moral and economic arguments surrounding statutory controls before proposing a model law regulating price gouging during times of crisis. It argues that such a law is both essential and easily adaptable to Australia’s consumer law framework. The model law provides a basis for the federal government to consider desperately required change to ensure consumers do not suffer during current crises or those to come. ... 

The 2019–20 Australian bushfire season, referred to by Prime Minister Scott Morrison and others as the ‘Black Summer’, was one of the worst in the nation’s history. A series of ferocious fires burned relentlessly and caused widespread devastation across the country, primarily throughout New South Wales and the Australian Capital Territory. More than 10 million hectares were scorched, 3,000 homes and 7,000 other buildings were destroyed, 33 people and one billion animals killed. Disturbingly, in the midst of the crisis, reports surfaced of some retailers doubling the price of bottled water and tripling the price of loaves of bread. 

As the fires were finally contained and extinguished, Australia, as with the rest of the world, was then gripped by a Coronavirus (COVID-19) disease pandemic. The illness rapidly spread, infecting millions and killing hundreds of thousands. Governments around the globe have responded swiftly, imposing ‘lockdowns’ of various kinds, most of which have forced many non-essential businesses to close temporarily. Following the formation of the National Cabinet on 13 March 2020, the Australian federal, state and territory governments imposed a series of restrictions on non-essential gatherings, travel, events and business trade. As at October 2021, some nations which have successfully ‘flattened the curve’ are beginning to relax restrictions while others continue to struggle with containment. A selection of countries, like Australia, find themselves in the middle of the spectrum (with some parts of the country being effectively free of the virus and others battling growing numbers of infections). Again, like when the Black Summer struck, the selfish side of humanity reared its head, with widespread reports of profiteering by retailers and private sellers. In some cases, retail prices on basic goods such as toilet paper and hand sanitiser, as well as medical supplies such as surgical face masks, skyrocketed as panic-driven demand surged. 

These pricing practices are classic instances of ‘price gouging’. This term describes the practice of sellers pricing goods or services at a level significantly higher than what is objectively considered acceptable, reasonable or fair. This practice is normally a response to abrupt increases in demand or decreases in supply, with such fluctuations invariably being triggered by crises such as natural disasters. The exorbitant price increases are generally short-lived and confined to a particular geographical area, especially those which are remote and have difficulty accessing coveted goods and services. 

This article argues that this practice is reprehensible and advocates for legal reform to protect consumers from the same during times of crisis. It does so in four parts. Part II briefly investigates the economic forces driving this behaviour. Part III explores existing legal protections in Australia and abroad pertaining to price gouging, considering and appraising the various models that exist. Part IV evaluates the arguments both for and against the introduction of laws specifically proscribing price gouging, submitting that the benefits of such laws outweigh the drawbacks. Finally, Part V suggests a model anti-price gouging law for inclusion within the Australian Consumer Law (‘ACL’). It is ultimately argued that laws prohibiting price gouging are not only justifiable but essential.

Privacy Taxonomy

'How Data Can Be Used Against People: A Classification of Personal Data Misuses' by Jacob Leon Kröger, Milagros Miceli and Florian Müller comments 

Even after decades of intensive research and public debates, the topic of data privacy remains surrounded by confusion and misinformation. Many people still struggle to grasp the importance of privacy, which has far-reaching consequences for social norms, jurisprudence, and legislation. Discussions on personal data misuse often revolve around a few popular talking points, such as targeted advertising or government surveillance, leading to an overly narrow view of the problem. Literature in the field tends to focus on specific aspects, such as the privacy threats posed by ‘big data’, while overlooking many other possible harms. To help broaden the perspective, this paper proposes a novel classification of the ways in which personal data can be used against people, richly illustrated with real-world examples. Aside from offering a terminology to discuss the broad spectrum of personal data misuse in research and public discourse, our classification provides a foundation for consumer education and privacy impact assessments, helping to shed light on the risks involved with disclosing personal data. 

 

The protection of personal data is a highly controversial issue. While scores of researchers, activists and politicians advocate the right to informational privacy and stress the importance of comprehensive data protection laws, others argue against strong legal restrictions, pointing to the wide-ranging benefits of data collection and use. Many people, asserting they have “nothing to hide”, even dismiss the importance of data protection altogether, believing that privacy only truly matters for those on the wrong side of law. While the nothing-to-hide argument has long been exposed as misguided, it is not only held by ordinary citizens but also backed by some of the most powerful organizations on earth, including governments and multinational corporations. 

 

During his time as Google’s CEO, Eric Schmidt notoriously stated, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place”. Following the same reasoning, the British government chose the campaign slogan “If you’ve got nothing to hide, you’ve got nothing to fear” to promote a nation-wide CCTV surveillance program. As these examples illustrate, the various ways in which privacy invasions can cause harm to law-abiding citizens are often ignored, underestimated or even deliberately concealed. As a result, many people, including court members, struggle to articulate why the protection of personal data is important. This state of misinformation has severe consequences on policy and public discourse, with data protection advocates being referred to as “privacy alarmists” and privacy itself being framed as “old-fashioned[,] antiprogressive, overly costly” and “primarily an antiquated roadblock on the path to greater innovation”.  This widespread sentiment also helps legitimize and perpetuate current privacy laws, which are riddled with loopholes and fail to consistently safeguard people from harmful, abusive and ethically questionable data practices. 

 

In the face of these challenges, researchers have called for a closer examination and better understanding of the actual harms that can result from the disclosure and processing of personal data. In this vein, Solove argues that “Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of ‘privacy’ do not fare well when pitted against more concretely stated countervailing interests”. Along these lines, many theorists have made attempts to convey the importance of privacy protection by presenting categories and real-life examples of personal data misuse. Some notable examples are the “Data Harm Record” by the Data Justice Lab, an “Inventory of Risks and Harms” provided by the Centre for for Information Policy Leadership and Wolfie Christl’s extensive work on corporate surveillance in everyday life. Furthermore, scholars have written several essays on the societal values related to and protected by informational privacy (e.g., [1, 3, 4]) with Magi, for example, providing a list of “fourteen reasons privacy matters”. 

 

Existing classifications often focus on data practices of companies, on novel privacy threats posed by big data technologies and/or specific categories of harm resulting from personal data use (e.g., bodily harm, loss of liberty, financial loss, reputational harm). What seems to be lacking thus far, however, is a general classification of the possible actions that lead to these harms – in other words: a classification capturing the manifold ways in which personal data can be used against people, by criminal, private, public and governmental organizations, or by other individuals. 

 

In an attempt to fill the identified gap, this paper proposes a classification scheme of personal data misuses. As previous work has stated, taxonomies comprise subjective social, technical, and political choices. Classifications (ours included) are always normative attempts to “impose order onto an undifferentiated mass”. While we acknowledge the subjective character of our endeavor, we also strive for a holistic overview and see value in creating a structured classification of the possible ways in which personal data can be weaponized. We argue that without a comprehensive and clear overview, many potential paths of harm can easily be overlooked in privacy impact assessments and public discourse, leading to an overly narrow view of the problem. This paper is based on extensive literature research, including previous investigations and press articles, as well as discussions among the three authors and, occasionally, advisors and fellow researchers throughout many months until reaching theoretical saturation. 

 

Our classification scheme comprises the following eleven categories: 

 

1. Consuming data for personal gratification – Section 2.1 

 

2. Generating coercive incentives – Section 2.2 

 

3. Compliance monitoring – Section 2.3 

 

4. Discrediting – Section 2.4 

 

5. Assessment and discrimination – Section 2.5 

 

6. Identification of personal weak spots – Section 2.6 

 

7. Personalized persuasion – Section 2.7 

 

8. Locating and physically accessing the data subject – Section 2.9 

 

9. Contacting the data subject – Section 2.8 

 

10. Accessing protected domains or assets – Section 2.10 

 

11. Reacting strategically to actions or plans of the data subject – Section 2.11 

 

While we acknowledge that a holistic exploration of the topic is particularly important in view of the rapid proliferation of data-based services and the accompanying rise of governmental and corporate mass surveillance, the focus of this paper is not limited to the domain of big data, nor even to the digital domain. The classification is meant to be universally applicable, independent of how the data was obtained (e.g., online or offline, legally or illegally, collected or inferred, with or without the knowledge of the data subject), who causes the threat (e.g., individual person, corporation, organized crime group, intelligence agency) and what motivations lie behind it (e.g., financial gain, political objectives, revenge). These parameters will only be included in examples for illustrative purposes. 

 

As even de-identified data has the potential to cause harm to individuals (cf. Sect. 3.2), we chose to adopt a very broad understanding of “personal data” for the purpose of this classification. While privacy law usually applies to information relating to an identified or identifiable natural person (e.g., Art. 4 GDPR), our proposed classification may apply to any information that is, or once was, personal data according to the above definition, including even anonymized data – as long as it still has the potential to cause or facilitate harm against the data subject. 

 

The remainder of this paper is structured as follows. Section 2 presents the eleven identified categories of personal data misuse. Section 3 then explains the utility of the classification scheme and discusses its scope and limitations. Section 4 concludes the paper.