Unrecognised States

'From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law' by Daniel Gruenbaum in (20220 86(3) Rabels Zeitschrift für ausländisches und internationales Privatrecht 577-616 comments

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

In 'International Law and Statehood: A Performative View' Janis Grzybowski and Martti Koskenniemi argue 

Twentieth-century international jurisprudence may be summarised as an extensive effort of trying to fit the view that states are sovereign with the view that they are still ‘bound’ by an international law. But the problem has not been limited to jurisprudence. Most international disputes involve one side invoking its sovereign right and the other side referring to some international rule allegedly overriding that right. Even today, international lawyers are both committed to statehood as the foundation of their field – and to the critique of that statehood as obstructive of their international projects on peace and security, human rights, free trade, clean environment, abolishing impunity for serious crimes, protecting investment, etc. Much of this ambivalence has a moral-political quality: is statehood good or is it bad? Are established states the pillars of a peaceful international and domestic order or the fig leaf of random rule by a specific social class or group? And are nationalist demands for new states signs of fragmentation, ‘ethnic’ or otherwise, or are they justified calls for the emancipation of ‘the peoples’? On the one hand, the right of identifiable communities to enjoy self-determination appears as a founding explanation for why there should be anything like international law in the first place. The idea that communities have a right to lead their own lives in accordance with their preferences – their religious or political commitments – and to rule themselves autonomously, with laws they have enacted and through officials of their own choosing, seems quite fundamental. One need not go further than the de-colonisation period to realise the political power of this idea. On the other hand, statehood also provides a protective veil to all kinds of moral and political abomination, shielding corrupt or oppressive governments from outside scrutiny, consolidating and protecting tyrannical regimes. Thus, while for some the state means peace and security from outside aggression and internal turmoil, a ‘home to one’s own people’, others regard it as a barrier to their own political (national or international) aspirations and an instrument of suppression. Hence the interminable recent debates on ‘responsibility to protect’ – that is, the question of the right or duty of the ‘international community’ to intervene in the government of states in internal turmoil. But whether the state is ultimately a promise for the emancipation of the ‘Wretched of the Earth’ (Frantz Fanon) or a means to preserve the status quo against endless ‘fratricidal struggles’ (ICJ Burkina Faso vs. Mali 1986) cannot be decided a priori. The diverging views that are involved in any dispute are accepted or rejected as part of broader – read political – considerations. For example, the question of the statehood of Slovenia, Croatia, and Bosnia and Herzegovina in the 1990s turned on disagreements about how to react to the violent fragmentation of the former Socialist Federal Republic of Yugoslavia (SFRY). The problem resurfaced with the Kosovo question, intensely debated within the advisory proceedings of the International Court of Justice in 2009, with the twist that Kosovo had not been a constituent republic of the SFRY. The recent history of the Balkans shows nicely that whether ‘the state’ is to be defended or challenged is no question answerable in abstracto but depends on context and vantage-point; we could also say that it is political.

Further 

Statehood is not only morally contested and caught in an ambiguous relationship with international law; its very ontology lingers uncomfortably between notions of empirical fact and power, and notions of legal validity and moral purpose. What is statehood? After centuries of debate, intellectuals still disagree about this – is statehood a social fact or a social norm? Nobody has of course ever ‘seen’ states. They are constructions, pieces of human imagination, forms of shorthand by which aspects of experience are rationalised. And yet, of course, this does not signify that they could be simply wiped out of our world without something quite important being lost. As C. A. W. Manning once pointed out, to think of the world without reference to statehood would be like thinking of a fleet at sea only by reference to a lot of sailors acting – without any reference to the performance of ships. But if we cannot understand the world without statehood, what character has it? According to a ‘realist’ tradition, the state is a ‘fact’, the fact of power above all, finding expression in the ability of the ‘Machiavellian’ Prince to seize, retain and extend control over a city, in the ‘Hobbesian’ Sovereign’s ability to pacify his warring subjects, or in the ‘Weberian’ government’s monopoly of legitimate force over a population on a definite territory. To contemplate the ‘deeper’ moral purpose of statehood would only dangerously conceal the reality of power. But then, a whole tradition from Aquinas onwards points out that mere ‘facts’ do not create the moral compulsion we associate with statehood – that instead we understand statehood as a particular kind of ‘authority’ vested in men (indeed, almost always men) by a set of principles through which coercion is translated into legally valid control. Indeed, in this ‘idealist’ tradition it is utterly absurd to claim that the state is real in any factual sense; rather, empirical behaviour, causes and materials take a coherent shape only to the extent to which this shape has a legal or ideal form. But whether we can make this formal assumption in any specific case depends on whether it is lawful or justified; validity, not power, defines ‘the essence’ of the state. The juxtaposition of the two views is as old as theorisation about statehood, reminding us of the controversies between Grotius and Hobbes, Leibniz and Pufendorf, Kant and Hegel, Kelsen and Schmitt, and most of the twentieth-century controversy between ‘idealists’ and ‘realists’. Which one is right? The answer to this question has not accidentally been deferred from one round of debate to the next. Ambiguity persists. There is no reason to re-enter the debates; in some respect both positions are right – and wrong.

Tort

The insightful 'Private Law & Public Space : The Canadian Privacy Torts in an Era of Personal Remote-Surveillance Technology' dissertation by Kristen Thomasen comments 

As increasingly sophisticated personal-use technologies like drones and home surveillance systems become more common, so too will interpersonal privacy conflicts. Given the nature of these new personal-use technologies, privacy conflicts will increasingly occur in public spaces. Tort law is one area of the Canadian legal system that can address interpersonal conflict and rights-infringements between people with no other legal relationship. However, building on a historical association between privacy and private property, the common and statutory law privacy torts in Canada fail to respond to such conflicts, I argue inappropriately. Privacy is an important dimension of public space, and the social interactions and relationships that arise in public spaces. Failing to recognize public space privacy in tort law leads to an overly narrow understanding of privacy, and can be considered contrary to binding precedent that says that the common law should evolve in line with (or at a minimum, not contrary to) Charter values. The Charter values of privacy, substantive equality, and expressive freedom support various reforms to the judicial understanding of the privacy torts in Canada. Privacy, also understood as "private affairs" or "private facts" in tort, should not be predicated on property, and can sometimes take on greater value in public spaces. Privacy interests should be assessed through a normative lens, with a view to the long-term implications of a precedent for both privacy and substantive equality. Courts should assess privacy through a subjective-objective lens that allows for consideration of the lived experiences and expertise of the parties, their relative power, and their relationships. Adopting these principles into the statutory and common law torts would permit tort law to serve as a legal mechanism for addressing interpersonal, technology-mediated privacy conflicts arising in public spaces. This will be a socially valuable development as such conflicts become increasingly common and potentially litigated.

Jabs and TRIPS

'An ethico-legal assessment of intellectual property rights and their effect on COVID-19 vaccine distribution: an Australian case study' by James Scheibner, Jane Nielsen and Dianne Nicol in (2022) 9(2) Journal of Law and the Biosciences comments 

This article posits that Australia, as an affluent country with increasing capacity to manufacture vaccines, has an obligation to assist its regional (and global) counterparts in implementing vaccination programs that protect their populations. First, the article explores the capacity of high-income nations to meet their obligations, assist their neighbours and refrain from vaccine nationalism. This inquiry involves an analysis of the optimal ethical strategy for distributing vaccines globally, and the role that Australia might play in this distribution strategy. Secondly, the article examines the intellectual property landscape for vaccines in Australia, focusing on the patents that cover vaccine compositions and manufacturing techniques (recognizing the potential for know-how and access to materials as well as patents to affect manufacturing capacity). This article then discusses the strategies the Australian Government has at its disposal to counter potential intellectual property impediments whilst complying with existing obligations under the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), as an ethically appropriate response to the pandemic. This article also considers whether a so-called TRIPS waiver could provide better options and concludes that the challenge of compelling disclosure of know-how remains. 

 The authors argue 

 The race for effective vaccine candidates to fight the current COVID-19 pandemic has been like no other vaccine race in history. The extent of impacted populations, coupled with the rapid transmissibility of the virus, has prompted a push for vaccines on both public and private fronts that is unique in scale. In recognition of the fact that many nations lack both the capacity to manufacture vaccines and the funds to purchase them at market prices, COVAX was established in 2020 by the WHO, along with The Vaccine Alliance (GAVI) and the Coalition for Economic Preparedness Innovations (CEPI). The stated purpose of COVAX is to ‘… support the research, development and manufacturing of a wide range of COVID-19 vaccine candidates, and negotiate their pricing’. To this end, COVAX negotiated supply agreements with vaccine manufacturers in earlier phases of the pandemic. 

Whilst COVAX was meant to be the primary avenue for the global vaccine rollout in response to COVID, the extent to which this goal was achieved was hampered by a number of factors. One significant weakness was that nations which had secured supply of vaccines via bilateral agreements only decided to make them available once they had become surplus to their own needs. Rutschman notes that if governments engage in this form of ‘vaccine nationalism’, reserving vaccine supplies for their own population, this will undermine public health outcomes in other nations, particularly low- and middle-income nations. The tendency for nations in possession of vaccines surplus to their requirements to enter into bilateral agreements also appears to have increased the price of vaccines available via COVAX. 

This article uses Australia as a case study to examine the role and responsibility of high-income nations in contributing to the global effort to suppress this pandemic and respond to future pandemics. We suggest that nations such as Australia have an ethical responsibility to engage in vaccine distribution grounded in moral cosmopolitanism extending beyond state borders. We recognize that this duty should include provision of assistance to low- and middle-income nations to assist them in developing their own domestic manufacturing capabilities, to fulfill their moral nationalist obligations to their own citizens. However, the primary focus of this article is not so much on the ways in which nations like Australia could fulfil this duty (which we recognize as a laudable long-term goal). Instead, this article focuses specifically on the responsibility and freedom that nations like Australia possess to manufacture vaccines for supply to those nations in response to pandemic diseases such as COVID-19. Through an assessment of the intellectual property landscape associated with approved vaccines, this article concludes that intellectual property rights over vaccines, including patents, know-how and bilateral licensing agreements, do have the capacity to hinder domestic manufacture of vaccines. As such, high-income nations like Australia need to consider utilizing the full armoury of current and proposed flexibilities under the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) in attempting to fulfil their global responsibilities. 

The first section of this article involves an examination of what might be the optimal, ethical strategy for distributing vaccines globally, and the role that Australia can play in this distribution strategy. The Australian Government’s primary focus was on vaccinating the Australian population, although it has also assisted with the global vaccination effort. These programs have involved both formalized global vaccine-sharing commitments and bilateral arrangements with Australia’s nearest neighbours. Australia is a signatory to COVAX, and in this role the Government has committed to contribute to the distribution of vaccines for lower-income nations through the COVAX Advanced Market Commitment scheme. Bilaterally, the Australian Government responded to acute COVID crises in India through donation of materials and equipment and in Papua New Guinea (PNG) through an initial donation of 8000 doses of AstraZeneca vaccine. Notwithstanding the importance of these contributions to the welfare of peoples in the region, the potential negative impact of bilateral arrangements on the COVAX response should not go unmentioned. 

In addition, the Australian Government was an early signatory to contracts with vaccine producers to allow it to gain access to large quantities of manufactured vaccine. Given that the Australian Commonwealth Serum Laboratories (CSL) already had existing capacity to manufacture viral vector vaccines, the Government also made an early decision to contract CSL as a producer of AstraZeneca’s Vaxzervria vaccine. However, CSL indicated that it would not renew this contract in late 2021. The Government has since also announced an intention to build capacity to manufacture mRNA vaccines in collaboration with the State of Victoria and Moderna, with a view to commencing manufacture in 2024. As such the Government appears to be prepared to work with the major vaccine producers in formulating its plans for domestic manufacture of COVID vaccines into the future. 

In parallel, the Australian Government has expressed some support for a draft waiver proposed by the so-called Quadrilateral or ‘Quad’ of the United States, European Union, India and South Africa, currently before the TRIPS Council, to waive some COVID-related intellectual property rights. This proposal, initially sponsored by India and South Africa, sought to temporarily waive TRIPS provisions with respect to relevant intellectual property rights associated with COVID-19 vaccines, diagnostics and therapeutic tools. As originally intended, the waiver might have applied not only to formal intellectual property rights, such as patents, copyright and geographical indications, but also to ‘informal’ intellectual property rights, such as trade secrets and know-how. However, the current waiver being considered is significantly narrower, and only applies to certain patents on COVID-19 vaccines. 

If the waiver is passed by the TRIPS Council and implemented domestically, intellectual property rights holders would no longer be able to enforce relevant rights against other manufacturers or nations producing versions of their therapeutics. Proponents of the waiver argue this needs to be implemented because intellectual property rights have been used to deter developed nations from fully participating in the global effort to defeat the COVID-19 pandemic. It should be noted, however, that there are other flexibilities already available under TRIPS, particularly those relating to uses without authorization under TRIPS Article 31, which could be used legitimately either by governments or by third-party manufacturers without authorization from the rights holders. 

The impact of intellectual property rights on the capacity of governments in developed nations to distribute COVID-19 vaccines to low- and middle-income nations, together with the utility of the TRIPS waiver, is a central theme of the later sections of this article. This article examines the extent to which intellectual property rights have impeded Australia’s capacity to contribute to this strategy in a meaningful way. This examination includes an analysis of the Australian intellectual property landscape surrounding the main vaccine candidates that have reached clinical trials and/or been approved for clinical use. The final section of the article analyses potential workarounds to intellectual property impediments (focusing particularly on existing legislative provisions permitted under TRIPS), to ascertain whether Australia is in fact in a legitimate position to assist other nations in surviving this pandemic and future pandemics.

Bodies

Another burial dispute. In Britt v Office of the State Coroner [2022] WASCA 75  Mitchell JA  states 

[37] The appellant, Ms Britt, is the mother of Ricky Chapman, who died without a will on 20 April 2022. The second respondent, Ms Schoppe, claims to have been in a de facto relationship with Mr Chapman at the time of his death. 

38 Ms Britt and Ms Schoppe are in dispute about the deceased's funeral arrangements. Ms Britt wants the deceased's body to be buried on Kaurna land in South Australia. Ms Schoppe wants the deceased's body to be cremated and his ashes released at the beach in Western Australia. 

39 On 7 June 2022, the primary judge heard and determined the dispute, finding in favour of Ms Schoppe. His Honour ordered that the deceased's body be released to Ms Schoppe and that she have carriage of his funeral. Ms Britt now appeals against the primary judge's orders. 

40 In my view, in the circumstances of the present case, the deceased's body should be released to the person who appears, on the current state of the evidence, to be most likely to be granted administration of the deceased's estate for her to make the relevant funeral arrangements. In the circumstances of this case, that person will be Ms Schoppe if she and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. 

41 I have taken a different view to Murphy and Beech JJA in relation to the proper construction of the primary judge's reasons for decision. I am not satisfied that the judge made any finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. I would uphold the ground of appeal which contends that the primary judge erred by failing to make that critical finding. 

42 However, considering the evidence for myself, it does appear to me that the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. Ultimately, I would exercise the court's discretion in the same manner as the primary judge and release the deceased's body to Ms Schoppe. Consequently, in my view, the appeal should be dismissed. 

Background 

The deceased 

43 The deceased was born in October 1989 in South Australia, and so was 32 years old at the time of his death. The deceased's father predeceased him. The family of the deceased's father reside in New South Wales. The deceased had one younger brother and three younger sisters. He maintained a close relationship with his brother (who is currently imprisoned in South Australia). 

44 The deceased had been in the care of a man named 'Bob' from the age of 12 years. He moved to Queensland with 'Bob' when he was around 13 or 14 years old. He then moved from Queensland to Western Australia approximately seven years ago. Shortly after moving to Western Australia, the deceased was imprisoned from October 2015 to April 2019. The deceased suffered non-fatal injuries from a bullet wound in December 2020 on the occasion when Ms Schoppe's stepfather was shot and killed.  He was again incarcerated between December 2020 and April 2021. 

45 The deceased was working as a fly in/fly out worker at a mine site at the time of his death. He had experienced seizures which had prevented him from working for about six months prior to his death. He died after suffering a seizure at work on 20 April 2022, some eight days after his return to work on the mine site. 

Coroner's decision 

46 On 12 May 2022, a coroner decided that a certificate should be issued under s 29 of the Coroners Act 1996 (WA), releasing the deceased's body to Ms Schoppe. The coroner proposed that he would, on 18 May 2022, issue the certificate to Ms Schoppe. 

Primary proceedings 

47 On 17 May 2022, Ms Britt commenced proceedings in the General Division of this court, seeking substantive orders that the deceased's body be released to her and that she have carriage of the deceased's funeral. 

48 On 18 May 2022, the primary judge granted an interim injunction restraining the coroner from issuing a certificate pursuant to s 29 of the Coroners Act or releasing the deceased's body to Ms Schoppe until further order of the court. His Honour also made orders programming the matter for final hearing on 27 May 2022 which included directions that: 1. Each of Ms Schoppe and Ms Britt file all affidavits on which they sought to rely by 4.00 pm on 25 May 2022; and 2. Each of Ms Schoppe and Ms Britt notify the other in writing of their intention to cross-examine on any affidavits by 12.00 pm on 26 May 2022. 

49 For reasons which are not entirely clear from the primary court file, the hearing did not occur until 7 June 2022. It may be noted that the appellant produced two further affidavits (of Ms Sullivan and Ms Walsh referred to at [86] - [88] and [89] - [94] below) and written submissions only on 6 - 7 June 2022. 

Primary judge's orders 

50 On 7 June 2022, the primary judge heard and determined Ms Britt's application for final relief. His Honour ordered that: 1. Ms Britt's application be dismissed. 2. The deceased's body be released to Ms Schoppe. 3. Ms Schoppe have carriage of the deceased's funeral arrangements. 

Legal framework 

51 The relevant legal framework may be summarised as follows. 

Scope of the court's discretion 

52 Section 4 of the Administration Act 1903 (WA) preserves the jurisdiction of the Supreme Court to determine who should have carriage of a funeral and where and how the body of a deceased person should be dealt with. 

53 The common law has long recognised the existence of rights and duties in connection with the burial of a corpse. An executor of the will of a deceased person has a duty to arrange for that person's funeral and a concomitant right to custody of the body for that purpose. The position is more complex when a person dies without leaving a will or naming an executor. 

54 Single judge decisions in Western Australia have held that the court will ordinarily order that the body be released to the executor of the deceased's will or, if there is no will, the person with the highest ranking entitlement to apply for letters of administration. The person to whom the body is released will then be left to determine funeral arrangements That proposition is derived from the decision of Young J in Smith v Tamworth City Council, in which his Honour described the rationale for the general approach in the following terms:

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, ... the person with the largest interest will normally be the person who is the one expected to bury the body. (citation omitted)

55 The passage just quoted was adopted by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd. In doing so, Perry J observed:

I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

56 Jones was a case in which an Aboriginal man died intestate without any significant assets and where there was unlikely ever to be an application for administration. The proper approach in such a case was described by Perry J in the following terms:

Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality. In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

57 Practical considerations may also be significant in a case where persons with equally-ranking rights to apply for administration are in dispute about funeral arrangements. 

58 A number of single judge decisions in other States have recognised the relevance, in disputes about burial, of considerations other than who is likely to be entitled to obtain letters of administration. Relevant matters have been recognised to include, to the extent they are known to the court, cultural considerations, the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased. Regard has also been given to the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals. Various single judge decisions have recognised that, in some cases, it is not practicable to attempt to resolve disputes as to who has the better claim to be administrator where the proper resolution of the dispute would require substantial evidence and the testing of that evidence. The weight to be attributed to each of the relevant factors mentioned above is to be determined in the particular factual context of the dispute in the case. 

59 It appears from the above discussion that the court will ordinarily order that the body be released to: 1. the executor of the deceased's will; or 2. if there is no will, the person who appears on the state of the evidence before the court to be the person who is most likely to receive a grant of administration of the intestate estate (who will ordinarily be the person with the greatest interest in the estate). However, that is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of the case. 

60 In determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or administration of the estate. 

61 Often, as in the present case, the court will not be in a position to fairly and properly make a final determination as to who has such an interest or entitlement. Disputes about the release of a deceased's body must necessarily be resolved as soon as possible after the death of the deceased. There will always be an imperative for expedition in disputes of this nature, and it would be an affront to the dignity of the deceased and the emotional well-being of those close to the deceased for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved. That need for an expedited determination of the question of the deceased's funeral arrangements arises at a time when the parties to the dispute are in the midst of their grieving over the loss of a loved one. 

62 Particularly where the issue in dispute concerns the existence and duration of a de facto relationship, the fair final resolution of the dispute may require the parties to have the opportunity of presenting a large volume of evidence about the features of the relationship over a period of at least two years. The final determination of that dispute would require the court to give close attention to the detail of that evidence. It is well recognised that, outside the range of obvious cases, the evaluative judgment required in determining the existence and duration of a de facto relationship can be difficult and the characterisation of the relationship attended by a degree of uncertainty. In many such cases, it may be that different decision-makers could reasonably arrive at different conclusions on the same set of facts. In many cases, the fair and proper resolution of disputes as to the characterisation of a relationship between a deceased and another person may take time that is not available to the court. 

63 In Burrows, Pullin J observed:

However, I should add that even if the 'common or usual approach' is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements ... If the 'common or usual approach' is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. (citation omitted)

64 I agree with Pullin J's observations as to the need for expedition, and that the resolution of the question of the release of a deceased's body cannot await the grant of letters of administration. The considerations to which Pullin J referred in Burrows support the approach of the court making a swift decision as to who appears, on the state of the evidence before the court, to be the person who is most likely to receive a grant of administration of the intestate estate. It would seldom, if ever, be appropriate to await the outcome of a contested application for the grant of letters of administration. However, I would not say that the cases in which the court will depart from the usual approach would be 'extremely rare'. There may be a range of cases where the decision may be properly made by reference to, or having regard to, practical considerations. Examples include cases of a kind referred to at [56] and [57] above, or where those who appear most likely to receive a grant of administration are unwilling or unable to make proper funeral arrangements. 

65 Therefore, in determining how the discretion should be exercised in the case of a deceased who dies without a valid will, the court need not, and generally does not, finally resolve disputes as to the existence of an interest in, or entitlement to a grant of administration of, an intestate estate. Rather, the court is concerned with the question of who (if anyone) appears, on the state of the evidence then before the court, to be most likely to receive a grant of administration of the intestate estate. The court will usually determine that question in an expedited summary way without needing to resolve every factual dispute that may be relevant to the grant of administration and without undertaking any extensive cross‑examination. 

66 It is then necessary to turn to the provisions of the Administration Act in relation to the grant of administration of an intestate estate. 

Provisions of the Administration Act 

67 Section 25(1)(a) of the Administration Act empowers the court to grant administration of the estate of a person dying intestate (separately or conjointly) to 'one or more of the persons entitled in distribution to the estate of the intestate' who are over the age of 18 years. The normal approach to the exercise of this power is to grant letters of administration to the person who has the greatest interest as a beneficiary in the intestate estate. 

68 Section 14(1) of the Administration Act relevantly provides that, where a person dies intestate without issue (meaning without a lineal descendant), but leaving a wife, a parent and siblings, then:[65] 1. the wife is entitled to all household chattels included in the intestate property; 2. the wife is entitled to the first $705,000[66] of the net value of the other intestate property, together with interest on that sum and half of the net value of the other intestate property over $705,000; and 3. the parent and siblings are entitled to share in the other half of the net value of the other intestate property over $705,000. 

69 Section 15(1) of the Administration Act provides that: If the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with section 14, to the intestate property to which a husband or wife of the intestate would have been entitled, had the intestate died leaving a husband or wife. 

70 Section 14(1) of the Administration Act also relevantly provides that, where a person dies intestate without a spouse or issue, but leaving a parent and siblings, then:[67] 1. the parent is entitled to the first $56,500[68] of the net value of the intestate property and one half of the net value of the intestate property over $56,500; and 2. the siblings are entitled to share in the other half of the net value of the intestate property over $56,500. 71 Therefore, if Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death, then she would have the greatest interest as a beneficiary in the deceased's estate and would normally be granted administration of the estate. If that were not the case, then Ms Schoppe would have no entitlement to the intestate property and Ms Britt, as the sole surviving parent of the deceased, would have the greatest interest in the deceased's estate and would normally be granted administration of the estate. 

Determining the existence of a de facto relationship 

72 The terms 'de facto relationship' and 'de facto partner' are defined in s 13A of the Interpretation Act 1984 (WA) in the following manner:

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship. 

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential: (a) the length of the relationship between them; (b) whether the 2 persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they care for and support children; (i) the reputation, and public aspects, of the relationship between them. 

(3) It does not matter whether: (a) the persons are different sexes or the same sex; or (b) either of the persons is legally married to someone else or in another de facto relationship. 

(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship. 

(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

73 This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O. The following general principles may be derived from the discussion in those cases: 1. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship. 2. The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship. 3. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances. 4. The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives. 

74 In H v P, Murphy JA (Pullin and Buss JJA concurring) made the following observations, in the context of family law proceedings, as to the assessment of whether and when a de facto relationship has come to an end: 

Just as it is difficult to discern when a relationship between two people can properly be said to be 'marriage-like', it can be equally difficult to determine when such a relationship comes to an end. In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage. Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. ... It follows that when a party to a de facto relationship determines that they no longer wish to live in a 'marriage-like' relationship and conducts their life on that basis, the de facto relationship comes to an end. Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives.

75 It has also been recognised that not every short interruption in a longer de facto relationship will bring the relationship to an end. Not every 'hiccup' in a longer marriage-like relationship will necessarily prevent the overall relationship from being characterised as a single de facto relationship rather than a series of discrete relationships. Depending on the circumstances, interspersed periods of separation may be characterised as merely bumps in the road, rather than the end of one road and the beginning of another.  ... 

98 Ms Britt deposed that she is an Aboriginal woman of the Kaurna nation, and that the deceased was an Aboriginal man of the Kaurna nation. She deposed that it is important that the deceased be buried rather than cremated as that is the Kaurna cultural practice, which is important to the community and her family. Mr Newchurch is an elder of the Kaurna people and deposed that it is important in Kaurna culture for burial rather than cremation to occur. He deposed that Kaurna funerals are important cultural events, at which large family gatherings are normal. He further deposed that the deceased's funeral on Kaurna land will be well-attended by Kaurna. 

99 Ms Britt also deposed that the deceased's younger brother, with whom he had a close relationship, is currently imprisoned in South Australia and so would not have the opportunity to attend a funeral in Western Australia. Ms Britt has given evidence of the brother's distress at the death of the deceased and her concern that if the brother cannot attend the deceased's funeral he will 'struggle significantly more than he is at the moment'. 

Ms Britt also deposed that she has health conditions which would prevent her from flying to Western Australia. 

100 Ms Schoppe's affidavit deposed that the deceased refused to acknowledge his Aboriginal heritage, and denied being Aboriginal when asked by her family and friends. After he was shot, he told Ms Schoppe that, if he did not wake up from surgery, he would want to be cremated and have his ashes spread along the beach. He had also told Ms Schoppe that he would never want to live back in South Australia because of the bad memories from his childhood.  ...

Primary judge's reasons for decision 

102 The primary judge gave ex tempore reasons for making the orders releasing the deceased's body to Ms Schoppe. His Honour identified the critical issue as being whether the deceased and Ms Schoppe were in a de facto relationship. After reviewing the evidence and having regard to the factors in s 13A(2) of the Interpretation Act, the primary judge concluded that they were in a de facto relationship. In that regard, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried. 

103 His Honour found that there was a period from late November 2021 ‑ early December 2021 when the deceased and Ms Schoppe were not residing together. His Honour characterised the period as a deterioration in the quality of the relationship, in which both parties were 'trying to work out the relationship', rather than an end to the relationship. 

104 The primary judge did not make any express finding as to when the de facto relationship between the deceased and Ms Schoppe began. The primary judge found that 'the longest period that the relationship might be said to exist was from sometime in late January 2020 to the date of Mr Chapman's death' on 20 April 2022. His Honour observed:

[W]hat has been submitted by the plaintiff is that you effectively cannot identify the start date of the relationship as being of the nature of a de facto relationship; however, in determining when the de facto relationship started, that will often be a process of looking back rather than requiring evidence of when they moved in. 

105 The primary judge concluded his consideration of the nature of the relationship between Ms Schoppe and the deceased by stating: So that means that I've found that [Ms Schoppe] was in a de facto relationship, and, in those circumstances, that she is entitled to conduct the funeral of Mr Chapman. 

106 The primary judge then held, in effect, that there was nothing disclosed in this case which would justify a departure from the common or usual approach that the person with the highest rank to take out administration of the estate will be given carriage of the funeral arrangements. 

The appeal to this court 

107 On 8 June 2022, Ms Britt instituted this appeal against the primary judge's orders. On that day, an interim order was made staying the enforcement of orders 2 and 3 set out at [50] above and restraining the coroner from issuing a certificate under s 29 of the Coroners Act, until 4.00 pm on 15 June 2022 unless otherwise ordered. An urgent appeal order was also made, programming the appeal for final hearing on 15 June 2022. 

108 Unfortunately, due to the late filing of the appellant's case and a proposed amendment to the grounds of appeal after the appellant's case was filed, it was necessary to defer the hearing of the appeal to 20 June 2022. The interim stay and injunction referred to above were extended to 4.00 pm on that date, and subsequently to the determination of the appeal. 

109 Ms Britt appeals to this court on the following three grounds: 1. [The primary judge] erred in fact and law when finding that [Ms Schoppe] had been continuously in a de facto relationship with Ricky Chapman (deceased) from, at least, 20 April 2020 until Mr Chapman’s death on 20 April 2022, within the meaning of 'de facto' provided in [s 13A of the Interpretation Act]. 1.1. His Honour erred in law by failing to determine that a de facto relationship between Mr Chapman and [Ms Schoppe] existed from, at least, 20 April 2020 with the consequence that the 2 year requirement in section 14 [of the] Administration Act was not met by the de facto relationship erroneously identified by him. 1.2. His Honour erred in law by making findings regarding the 'indicators' set out in [s 13A(2) of the Interpretation Act] contrary to the evidence before the Court on which His Honour relied when erroneously concluding there to have been a de facto relationship between Mr Chapman and [Ms Schoppe]. 2. [The primary judge] erred in fact when failing to find that any relationship between Mr Chapman and [Ms Schoppe] had broken down in or about late November 2021, prior to Mr Chapman’s death on 20 April 2022. 3. The learned Judge erred in law when failing to exercise his discretion to: 3.1. order the release of Mr Chapman’s body to [Ms Britt]; and 3.2. order that [Ms Britt] have carriage of the funeral arrangements for Mr Chapman according to the customs of the Kaurna Nation in South Australia. 

Error in failing to make a finding as to when the relationship began 

110 Ms Britt's written submissions in support of ground 1.1 contend that the primary judge erred by failing to make any finding as to when any de facto relationship between Ms Schoppe and the deceased began. In particular, Ms Britt contends that the primary judge failed to make any finding as to whether any de facto relationship had commenced prior to 20 April 2020. Ms Britt submits that it is an error to conflate the start of any kind of relationship between the deceased and Ms Schoppe with the point at which the parties to the relationship began living together in a marriage-like relationship. 

111 In my view, ground 1.1 is established to the extent that it asserts the primary judge to have erred in failing to make a finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. 112 The primary judge's reasons are not directed to that correct legal question in relation to the potential entitlement of Ms Schoppe to the intestate estate. The reasons were rather directed to whether a de facto relationship existed and whether that relationship had ended in November - December 2021. The primary judge did not make any express finding as to the critical issue of when the de facto relationship, which his Honour found to exist, began. That was a fundamental issue as, unless the de facto relationship began prior to 20 April 2020, Ms Schoppe would not have any entitlement to the deceased's estate under s 15 of the Administration Act, and therefore would generally not be granted carriage of the deceased's funeral.   

113 The need for Ms Schoppe to establish that she and the deceased had lived as de facto partners for at least two years immediately before the deceased's death was highlighted in the appellant's submissions to the primary judge.[128] In those circumstances, particularly where the primary judge gave ex tempore reasons, the natural starting point might be to read the judge's finding as to the existence of a de facto relationship as an implicit finding that the relationship was of at least two years' duration. 

114 However, having regard to the primary judge's identification of the critical issue and to the structure and logic of his Honour's reasoning, I am not satisfied that his Honour made such an implicit finding. At the outset of his reasons, the judge twice identified the essential or principal issue as being whether the deceased and Ms Schoppe were in a de facto relationship. His Honour then directed attention to each of the matters in s 13A(2)(a) - s 13A(2)(i) of the Interpretation Act, so far as they were relevant. Next, the judge considered evidence bearing on whether the relationship had come to an end, before concluding that the relationship was a de facto relationship and that it had not come to an end. That structure of the reasons reveals and reflects the judge's identification of two issues: whether the relationship was a de facto relationship and whether it had come to an end. 

115 Moreover, in concluding that the relationship was a de facto relationship, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.[133] Ms Schoppe discovered that she was pregnant in June 2020. The judge did not make any express finding that the deceased's response to the pregnancy and subsequent miscarriage shed light on the nature of the relationship as at April 2020. As discussed below, I would make such a finding. However, I do not regard such a finding to be so obvious as to go without saying, so as to be necessarily implicit in the judge's reasons. 

116 Further, the importance of showing that a marriage-like relationship existed prior to 20 April 2020 was emphasised at the conclusion of oral submissions advanced by counsel for Ms Britt, just before his Honour began his ex tempore reasons. I would expect the primary judge to have directly dealt with this submission if he had considered and rejected it. 

117 It is also significant that the primary judge's reasons did not make any reference to s 15(1) of the Administration Act or to a necessity for any de facto relationship to have subsisted from a particular period prior to the deceased's death. 

118 The only reference to s 15 in oral or written submissions was in a footnote to the second of the following quoted paragraphs: [Ms Schoppe] asserts that she was the de facto partner of the deceased for the purposes of the [Administration Act] at the time of his death. [Ms Britt] accepts that, should this Honourable Court determine that [Ms Schoppe] was the de facto partner of the deceased at the time of his death, [Ms Schoppe] would rank above [Ms Britt] for the purposes of the [Administration Act]. (emphasis added) 

119 Most of the oral and written submissions of counsel for Ms Britt were directed to whether the evidence established the existence of a de facto relationship at all, or whether any de facto relationship had ended by the time of the deceased's death. The passage quoted from the written submissions at [118] above suggests that these were the only critical issues. I am not convinced that the statutory requirement for any de facto relationship to subsist for at least two years prior to death was given such prominence in the written and oral submissions advanced on Ms Britt's behalf that it can be inferred that the primary judge could not possibly have overlooked the issue. 

120 I make full allowance for the fact that the primary judge properly decided to deliver ex tempore reasons at the conclusion of argument in an urgent matter. However, even making that allowance I am unable to construe the judge's reasons as making any express or implicit finding in relation to the critical issue of whether any de facto relationship began prior to 20 April 2020. Given: 1. The absence of any reference in the judge's reasons to the statutory requirement for a de facto relationship to subsist for any period prior to death; 2. The judge's statement that the critical issue was whether or not the deceased and Ms Schoppe were in a de facto relationship; 3. The structure of the judge's reasons and the findings his Honour made as to whether a de facto relationship existed at all and as to whether it ended; and 4. The judge's failure to deal with Ms Britt's submissions as to whether the evidence established that any relationship had begun by 20 April 2020, I cannot construe the reasons, having regard to the context of the preceding oral submissions and written submissions, as implicitly finding that the de facto relationship had subsisted for at least two years prior to the deceased's death. 

121 This is sufficient to establish a material express error in the primary judge's reasons, so as to require this court to consider for itself the proper exercise of the discretion. It is unnecessary and (given the urgency of the matter) undesirable for the matter to be remitted, as this court is in as good a position as the primary judge to make findings of primary fact and draw inferences from primary facts established by the evidence. The evidence adduced before the primary court was entirely documentary. No oral evidence was adduced, and no party sought to cross-examine any other party on their affidavits. In light of the established error, I will make my own assessment of the affidavit and other documentary evidence. 

122 It is, therefore, unnecessary for me to determine grounds 1.2, 2 and 3 of the appeal. It is also unnecessary to determine ground 1.1 so far as it contends that the evidence was not capable of satisfying the primary court that any de facto relationship commenced prior to 20 April 2020. Ms Britt's arguments as to the facts established directly or inferentially by the evidence will be addressed when I make my own factual findings and consider how the discretion ought to be exercised. 

Re-exercise of the discretion 

123 I therefore turn to make my own determination of whether, on the evidence adduced in the primary proceedings, Ms Schoppe or Ms Britt was the person who is most likely to receive a grant of administration of the deceased's intestate estate. 

124 As the party asserting the existence of the relationship, in a contested application for letters of administration Ms Schoppe would bear the onus of adducing admissible evidence to establish, on the balance of probabilities, that she and the deceased were in a de facto relationship for a period of at least two years immediately before the deceased's death. That is, in the circumstances of this case, Ms Schoppe would bear the onus of establishing that she and the deceased were continuously in a de facto relationship from a period beginning no later than 20 April 2020 up until the deceased's death on 20 April 2022. 

125 As noted above, the question at this stage is not whether Ms Schoppe has established an entitlement to administration of the intestate estate by establishing the continuation of a de facto relationship from 20 April 2020 to 20 April 2022. Rather, at this stage the question is whether, on the current state of the evidence, Ms Schoppe is the person who appears most likely to receive a grant of administration of the deceased's intestate estate. 

Appellant's submissions 

126 In essence, Ms Britt contends: 1. the evidence adduced by Ms Schoppe was insufficiently detailed and specific to support a conclusion that she and the deceased were in a de facto relationship at all; 2. the evidence did not support a conclusion that any de facto relationship began prior to 20 April 2020 (ie at least two years prior to the death of the deceased); and 3. the evidence established that any de facto relationship had broken down in or about late November 2021. 

127 Counsel for Ms Britt also contends that the cultural values and spiritual and religious beliefs of the deceased's maternal family (who are Aboriginal people of the Kaurna nation in South Australia) should be given weight. Counsel contends that the maternal family should be given the right to make the deceased's burial arrangements irrespective of the nature and duration of the relationship between Ms Schoppe and the deceased. 

Respondent's submissions 

128 Ms Schoppe submits that the primary judge made a fair and reasonable decision on the evidence before him. She accepts that '[i]n the innocence of inexperience, I could have worded things better'. However, Ms Schoppe in effect submits that the evidence supports the conclusion that she and the deceased were in a de facto relationship from January 2020 until his death in April 2022. 

129 Ms Schoppe also submits that the cultural values and spiritual beliefs of the deceased's family should not be considered because they were not values and beliefs shared by the deceased. 

Nature of Ms Schoppe's relationship with the deceased 

130 Putting aside questions of when the relationship began and whether it ended before the deceased died, it appears to me on the current state of the evidence that Ms Schoppe was in a marriage‑like relationship with the deceased. 

131 The evidence showed that their relationship existed from December 2019 until at least November 2021. During that time, they resided together in the same house, apart from the periods that the deceased was in prison or working away on his fly in/fly out shifts. It is significant that, when Ms Schoppe stayed with her mother to provide comfort and support after the death of her stepfather, Mr Nick Martin, the deceased went with her. Although not expressly stated, it is clearly implicit in Ms Schoppe's evidence that there was a sexual relationship between her and the deceased. The couple's reaction to Ms Schoppe's pregnancy and miscarriage demonstrated a commitment to living a shared life together. Irrespective of whether or not the pregnancy was planned, the reaction to it demonstrated a willingness to start a family together that was indicative of a deep commitment to an enduring relationship with each other. Ms Schoppe's commitment to a shared life with the deceased was also demonstrated by her emotional and (albeit unspecified) financial support for the deceased during his period of incarceration from December 2020 ‑ April 2021 and the period when he was unable to work in the approximately six months prior to his death. The only holiday which they are referred to taking was a holiday together with Ms Schoppe's friends. 

132 Counsel for Ms Britt submits that the lack of detail, or any evidence at all, as to the financial relations and other arrangements between the deceased and Ms Schoppe precludes a finding of a de facto relationship. I do not accept that submission. Findings about the living arrangements of and financial contributions by the deceased are not essential to the proper characterisation of the relationship. I accept that matters about which there is no evidence, or where there is an absence of detailed evidence, have the potential to affect the assessment of the nature of the relationship. However, the task of the court is to characterise the nature of the relationship by reference to the evidence that was adduced, rather than speculate about matters not in evidence. On the current state of the evidence, it appears to me that the relationship between Ms Schoppe and the deceased is properly characterised as a de facto relationship. Did the de facto relationship end before the deceased's death? 

133 Ms Schoppe's affidavit deposed to the fact that the deceased never moved out of her Mirrabooka house and the fact that they maintained their relationship up until his death. She deposed only that they had arguments that would last for a day or so. The evidence is expressed in very general and often conclusionary terms. However, if that evidence were to be accepted then it would indicate that the previously described relationship, which may be characterised as a de facto relationship, continued up until the time of the deceased's death. ...

Who appears more likely to be granted administration? 

145 In my view, the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. 

146 Therefore, it appears, on the current state of the evidence, that: 1. Ms Schoppe has an interest in the deceased's intestate estate under s 14 and s 15 of the Administration Act, so as to enable her to be granted administration under s 25(1)(a) of that Act; 2. Ms Schoppe has the greatest interest in the administration of the deceased's intestate estate under the Administration Act; and 3. Ms Schoppe is the most likely person to be granted administration of the deceased's estate. 

Manner in which the discretion ought to be exercised 

147 There is no sufficient reason in the present case to depart from the ordinary approach of releasing the deceased's body to the person who appears most likely to be granted administration of the deceased's estate (Ms Schoppe) for her to make the relevant funeral arrangements. 

148 I accept that the evidence, referred to at [98] above, of the cultural importance of burial to members of the deceased's maternal family is a factor counting in favour of the deceased being released for burial in South Australia. The fact that members of the deceased's family in South Australia may be unable to attend a funeral in Western Australia, as noted at [99] above, is another practical consideration counting in favour of releasing the deceased's body to Ms Britt for burial in South Australia. 

149 On the other hand, there is also evidence, referred to at [100] above, that the deceased did not acknowledge his Aboriginal heritage, has no continuing connection with South Australia and wished for his remains to be disposed of in the manner proposed by Ms Schoppe. 

150 On balance, I do not consider the evidence of these competing practical matters to justify a departure from the usual approach to the exercise of the court's discretion. In all of the circumstances, I consider that the appropriate exercise of the court's discretion is to order that the deceased's body be released to Ms Schoppe, who should have carriage of the funeral arrangements.

COVID

The eloquent Lee J in Kikuyu v Hazzard (No 2) [2022] FCA 812 comments 

[1] The final hearing of this case was observed by interested spectators filling three courtrooms and by over 4,000 viewers via the use of remote technology. The case was the subject of extensive commentary on social media including Telegram and Twitter. 

[2] Given the publicity this case has generated, apparently at the instigation of the solicitor for the applicant, it is worth dispelling some misconceptions and commencing this judgment by stating what this proceeding, and others like it, are not about: see, for example, Knowles v Commonwealth of Australia [2022] FCA 741; Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664. 

[3] This case is not about the wisdom or otherwise of the response of State governments or the Commonwealth to the public health challenges caused by the spread of COVID-19. It is not about any right to individual liberty or autonomy nor the appropriateness or otherwise of vaccine mandates. It is not about holding public officials to account for political or public health actions some consider to be wrongheaded or controversial. 

[4] It is about something quite different. 

[5] The applicant seeks declarations that certain public health orders made by the first respondent (Minister), and a determination made by the second respondent (Secretary), are invalid. The sole ground advanced is that the State provisions authorising those instruments are inconsistent with Part 2 of Chapter 8 of the Biosecurity Act 2015 (Cth) and are, therefore, invalid to the extent of the inconsistency between the State and Commonwealth Acts pursuant to s 109 of the Commonwealth Constitution. 

[6] Whatever else this argument lacked, it did not lack ambition. 

[7] The logical consequence of the applicant’s contention is that between 18 March 2020 and 17 April 2022, every measure taken under all State and Territory laws to prevent and control the spread of COVID-19 was invalid and inoperative. 

[8] For reasons explained below, the applicant’s argument is legally misconceived and must be rejected.

Assisted Reproduction

'Parent-initiated posthumous-assisted reproduction revisited in light of the interest in genetic origins' by Ya'arit Bokek-Cohen and Vardit Ravitsky in Journal of Medical Ethics comments 

A rich literature in bioethics argues against the use of anonymous gamete donation in the name of the ‘interest in knowing one’s genetic origins’. This interest stems from medical as well as psychosocial and identity reasons. The term ‘genealogical bewilderment’ has been coined to express the predicament of those deprived of access to information about their origins. Another rich body of literature in bioethics discusses arguments for and against posthumous-assisted reproduction (PAR), with a recent focus on PAR that is initiated by the parents of a deceased man (rather than his partner). This paper revisits arguments against PAR, in light of arguments regarding the interest in knowing one’s genetic origins. Limiting the discussion to the specific context of parent-initiated PAR (PIPAR), we argue that the use of cryopreserved sperm from a deceased identifiable man in the context of PIPAR may be ethically preferable when compared with the use of anonymous donor sperm, since it allows genealogical certainty, that is, giving the prospective child access to information about the identity, life story and ancestry of the genetic progenitor as well as genealogical embeddedness, that is, close relationship with extended family members.

Sexting

The UK Law Commission report on reforming the criminal law as it relates to intimate image abuse features the following recommendations 

Recommendation 1. 17.1 We recommend that an image which: (1) shows something that a reasonable person would consider to be sexual because of its nature; or (2) taken as a whole, is such that a reasonable person would consider it to be sexual, should be included in the definition of an intimate image. The definition of sexual should be applied only to the person depicted in the image itself, without considering external factors such as where or how the image was shared..  

Recommendation 2. 17.2 We recommend that the Government consider the behaviours of downblousing and taking “creepshots” in public as part of any review into the need for a specific offence of public sexual harassment. 

Recommendation 3. 17.3 We recommend that the definition of nude and partially nude should include female breasts and female breast tissue, which would include the chest area of: (1) trans women, whether they have breast tissue or not, and regardless of whether any breast tissue is the result of hormonal or surgical treatment; (2) women who have undergone a mastectomy; (3) girls who have started puberty and are developing breast tissue; and (4) non-binary people and trans men who have female breast tissue. 

Recommendation 4. 17.4 We recommend that any garment which is being worn as underwear should be treated as underwear for the purpose of an intimate image offence. 

Recommendation 5. 17.5 We recommend that the definition of “nude or partially nude” should include images which show the victim similarly or more exposed than they would be if they were wearing underwear. This includes images that have been altered to appear similarly or more exposed. 

Recommendation 6. 17.6 We recommend that the definition of an intimate image should include nude and partially-nude images, defined as images of all or part of a person’s genitals, buttocks or breasts, whether exposed, covered with underwear or anything being worn as underwear, or where the victim is similarly or more exposed than if they were wearing only underwear.   

Recommendation 7. 17.7 We recommend that the definition of an intimate image should include toileting images, defined as images of a person in the act of defecation or urination, and images of personal care associated with genital or anal discharge, defecation or urination.  

Recommendation 8. 17.8 We recommend that it should be an offence to take or share, without the consent of the person depicted, an image that falls within the definition of “toileting”.  

Recommendation 9. 17.9 We recommend that an intimate image be defined as an image that is sexual, nude, partially nude, or a toileting image. 

Recommendation 10. 17.10 We recommend that the Government consider whether any further offences are necessary to ensure the behaviour of exposing someone to a serious risk of significant harm in the context of an abusive dynamic is appropriately criminalised. 

Recommendation 11. 17.11 We recommend that the Crown Prosecution Service consider including intimate image offences in the list of offences in their guidance on so-called honour-based abuse and forced marriage.  

Recommendation 12. 17.12 We recommend that images that only show something ordinarily seen on a public street should be excluded from intimate image offences, with the exception of intimate images of breastfeeding.  

Recommendation 13. 17.13 We recommend that images where the victim is not readily identifiable should not be excluded from intimate image offences.  

Recommendation 14. 17.14 We recommend that the act of “taking” an image should form a component of our recommended intimate image offences. 17.15 “Taking” should be understood using the ordinary meaning of the term. It should include any means by which a relevant image is produced, including taking a photo or video with a camera whether digital or analogue and using a device to capture a photograph or video, whether using the camera or an app. 17.16 “Taking” an intimate image which is instantaneously modified by software – such as through a filter – should also be included in a “taking” offence.  

Recommendation 15. 17.17 The definition of “taking” an image should only include such behaviour where, but for the acts or omissions of the defendant, the image would not otherwise exist. Paragraph 4.50 

Recommendation 16. 17.18 We recommend that it should be an offence for D to install equipment with the intent of enabling D or another to commit the offence of taking an intimate image without consent. Paragraph 4.88 

Recommendation 17. 17.19 We recommend that the behaviour prohibited by the current voyeurism and “upskirting” offences should be combined in a single taking offence. 

Recommendation 18. 17.20 We recommend that it should be an offence to share an intimate image without consent. 17.21 The definition of sharing should include all behaviours that have directly made the intimate image available to another. This should include physical posting, showing, or displaying, sharing on social media, peer to peer messaging, or making the image available digitally through transferring a file, sending an encrypted file, saving the image at a specific location and enabling someone to access it, sending a link, or other instructions on how to access the file from a place where the sender has stored it. 17.22 The definition of sharing should not include “secondary sharing” in cases where a person D has informed a third person E where to find an image (for example, by sending a link to a website) that another person F has made available there, D has not shared the image itself or otherwise made the image available, and the image was already available to E. 

Recommendation 19. 17.23 We recommend that offences of sharing intimate images without consent should include sharing with the person depicted. 

Recommendation 20. 17.24 We recommend that it should not be a criminal offence simply to “make” an intimate image without the consent of the person depicted. 

Recommendation 21. 17.25 We recommend that sharing offences, including threats to share, should include images that are intimate as a result of altering, and that are created (whether by digital or non-digital means) if the altered or created image appears to be an intimate image of a person. 

Recommendation 22. 17.26 We recommend that it should not be an offence to possess an intimate image without the consent of the person depicted. 17.27 If an offence based on possession of an intimate image without consent were to be introduced, we recommend that this offence should be limited to circumstances of possession where the victim never consented to the possession of the image by the defendant.  

Recommendation 23. 17.28 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent to the taking or sharing; and (b) D does not reasonably believe that V consents. 

Recommendation 24. 17.29 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; and (b) D does so with the intention of causing V humiliation, alarm or distress or with the intention that D or another person will look at the image for the purpose of causing V humiliation, alarm or distress.  

Recommendation 25. 17.30 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; (b) D does not reasonably believe that V consents; and (c) D does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at the image of V.  

Recommendation 26. 17.31 We recommend that the Government consider reviewing the statutory guidance for the offence of controlling or coercive behaviour in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper. 

Recommendation 27. 17.32 We recommend that the Sentencing Council consider reviewing the sentencing guidelines for domestic abuse offences in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper.  

Recommendation 28. 17.33 We recommend that for all additional intent intimate image abuse offences, the magistrates’ court and the Crown Court should be empowered to find the defendant guilty of the base offence in the alternative. 

Recommendation 29. 17.34 We recommend that the base offence should be summary only with a maximum sentence of six months’ imprisonment. 17.35 We recommend that the additional intent and threat offences should be triable either way with a maximum sentence of two or three years’ imprisonment on indictment, or a term not exceeding the general limit in a magistrates’ court on summary conviction. 

Recommendation 30. 17.36 We recommend that the consent provisions in sections 74 to 76 of the Sexual Offences Act 2003 should apply to intimate image offences. Paragraph 8.38 Recommendation 31. 17.37 We recommend that proof of actual harm should not be an element of intimate image offences. 

Recommendation 32. 17.38 We recommend that where a defendant is charged with taking or sharing an intimate image without consent, and: (1) the intimate image was taken in a place to which members of the public had access (whether or not by payment of a fee); and (2) the victim was, or the defendant reasonably believed the victim was, voluntarily engaging in a sexual act or toileting, or was voluntarily nude or partially nude, the prosecution must prove that, in the circumstances as the defendant reasonably believed them to be, the victim had a reasonable expectation of privacy in relation to the taking of the image. 

Recommendation 33. 17.39 We recommend that a victim who is breastfeeding in public or is nude or partially nude in a public or semi-public changing room has a reasonable expectation of privacy in relation to the taking of an intimate image. 

Recommendation 34. 17.40 We recommend that it should not be an offence to share an intimate image without the consent of the person depicted where: (1) the intimate image has, or the defendant reasonably believed that the intimate image has, previously been shared in a place (whether offline or online) to which members of the public had access (whether or not by payment of a fee), and (2) either the person depicted in the image consented to that previous sharing, or the defendant reasonably believed that the person depicted in the image consented to that previous sharing, unless (3) the person depicted subsequently withdrew their consent to the image being publicly available and the defendant knew that they had withdrawn that consent. Paragraph 10.178 

Recommendation 35. 17.41 We recommend that there should be a defence of reasonable excuse available to our recommended base offence which includes: (1) taking or sharing the defendant reasonably believed was necessary for the purposes of preventing, detecting, investigating or prosecuting crime; (2) taking or sharing the defendant reasonably believed was necessary for the purposes of legal or regulatory proceedings; (3) sharing the defendant reasonably believed was necessary for the administration of justice; (4) taking or sharing the defendant reasonably believed was necessary for a genuine medical, scientific or educational purpose; and (5) taking or sharing that was in the public interest. 17.42 We recommend that the defendant should bear the legal burden of proof to establish the defence on the balance of probabilities. 

Recommendation 36. 17.43 We recommend that it should not be an offence: (1) to share an intimate image of a young child if it is of a kind that is ordinarily shared by family and friends; (2) for family and friends to take an intimate image of a young child if it is of a kind that is ordinarily taken by family and friends. The burden should be on the prosecution to prove that this exclusion does not apply in cases where it is relevant.  

Recommendation 37. 17.44 We recommend that it should not be an offence for a person D to take or share an intimate image of a child under 16 (P) in connection with P’s medical care or treatment where: (1) when doing the act, D reasonably believes (a) that P lacks capacity to consent to the taking or sharing; (b) the taking or sharing will be in P’s best interests; and (2) if D does not have parental responsibility for P, someone with parental responsibility for P has given valid consent to the taking or sharing in connection with P’s care or treatment. The prosecution must prove that this exclusion does not apply in relevant cases. Paragraph 11.225 

Recommendation 38. 17.45 We recommend that the same definition of “intimate image” is used for both the offences of sharing and threatening to share an intimate image. 

Recommendation 39. 17.46 We recommend that the offence of threatening to share an intimate image should include implicit and conditional threats. 

Recommendation 40. 17.47 We recommend that the offence of threatening to share an intimate image should include threatening to share an intimate image that does not exist and other circumstances where it is impossible for the defendant to carry out the threat. 

Recommendation 41. 17.48 It should be an offence for D to threaten to share an intimate image of V where: (a) D intends to cause V to fear that the threat will be carried out; or (b) D is reckless as to whether V will fear that the threat will be carried out. 

Recommendation 42. 17.49 We recommend that the Sentencing Council consider whether an intent to control or coerce should be an aggravating factor at sentencing for the offence of threatening to share an intimate image. 

Recommendation 43. 17.50 We recommend that the prosecution should not have to prove that the person depicted did not consent to the act of sharing that is the subject of the threat. 

Recommendation 44. 17.51 We recommend that it should be an offence to threaten to share an intimate image of V, whether the threat is made to V, or to a third party. 

Recommendation 45. 17.52 We recommend that, where a threat is made to a third party, the prosecution should not have to prove that the recipient of the threat did not consent to the act of sharing that is the subject of the threat. 

Recommendation 46. 17.53 We recommend that section 75 of the Sexual Offences Act 2003 be amended so that a threat to share an intimate image made by the defendant or another triggers an evidential presumption that there was no consent to sexual activity and that the defendant had no reasonable belief in consent to sexual activity, provided that if the defendant did not make the threat, they knew that it had been made.  

Recommendation 47. 17.54 We recommend that complainants of the new intimate image offences should have automatic lifetime anonymity. 

Recommendation 48. 17.55 We recommend that complainants of the new intimate image offences should automatically be eligible for special measures at trial. 

Recommendation 49. 17.56 We recommend that restrictions on the cross-examination of complainants of sexual offences should extend to complainants of the new intimate image offences.  

Recommendation 50. 17.57 We recommend that notification requirements should be automatically applied for the offence of taking or sharing an intimate image without consent for the purpose of obtaining sexual gratification when an appropriate seriousness threshold is met. 17.58 This threshold should be met if: (1) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months; (2) in any other case— (a) the victim was under 18, or (b) the offender, in respect of the offence or finding, is or has been— (i) sentenced to a term of imprisonment, (ii) detained in a hospital, or (iii) made the subject of a community sentence of at least 12 months. 

Recommendation 51. 17.59 We recommend that Sexual Harm Prevention Orders should be available for all of our recommended intimate image offences. 

Recommendation 52. 17.60 We recommend that Government consider making available to the courts a power of forfeiture or destruction in respect of intimate images possessed without consent by an offender following the commission of a taking offence. 

Recommendation 53. 17.61 We recommend that the Crown Prosecution Service consider producing prosecutorial guidance specific to children and young people for new intimate image offences. 

Recommendation 54. 17.62 We recommend that the Government consider whether intimate image offences would benefit from specific extra-territorial statutory provision.