Legal Writing

In Edwards v Nine Network Australia Pty Limited [2022] FCA 509 Wigney J states 

[1] A Current Affair is a television program which, as its name would tend to suggest, occasionally airs stories concerning current affairs. On 24 May 2021 and 1 June 2021, the program aired hard-hitting stories about a complicated triangular custody dispute involving a man, a woman and a dog. The woman, Ms Gina Edwards, is a person who is said to have some notoriety as a lawyer who has worked in the United States. The dog, a cavoodle named Oscar, apparently had some notoriety as one of those cute furry pets that annoyingly pops up uninvited on one’s social media feed – assuming one has one. The man, Mr Mark Gillespie, had no particular notoriety, other than perhaps as a result of his cameo performance in the stories in question. 

[2] The dispute between Ms Edwards and Mr Gillespie was about who was rightfully entitled to Oscar’s canine affections and affiliation. The stories broadcast on A Current Affair included dramatic footage of confrontations between Ms Edwards and Mr Gillespie in a dog park on Sydney’s lower north shore – all while Oscar gambolled nearby, apparently oblivious to the highly charged emotions of his putative masters. 

[3] Anyway, as events transpired, Ms Edwards did not take too kindly to the way she was portrayed in the stories broadcast on A Current Affair, or the related web-based articles which largely reproduced them. She sued the companies responsible for publishing the broadcasts and articles in question, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited (collectively Nine), as well as the reporter who appeared in and contributed to the production of the relevant stories, Steve Marshall. She alleged that the broadcasts and articles defamed her because they implied or imputed that: she was a thief who stole Oscar the cavoodle; she stole Oscar for her own financial benefit; she deliberately delayed a previous court case about Oscar; she exploited Oscar for her own financial benefit; she adopted delay tactics so as to prolong her unlawful possession of Oscar; and she failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie. Ms Edwards claimed that the broadcasts and articles, and their “grapevine effect”, had gravely injured her character and reputation and resulted in her suffering substantial hurt and embarrassment. 

[4] The proceeding is at a very early stage. Already, however, it has become mired in procedural squabbles between the parties. The rot first started when Nine and Mr Marshall failed to file their defence within the 28 days allowed in the Federal Court Rules 2011 (Cth): see r 16.32. Following some rather intemperate and fairly unhelpful correspondence between the respective solicitors, Nine and Mr Marshall sought an extension of time in which to file their defence. When that application first came before the Court, Nine and Mr Marshall appeared cap in hand, but sans any draft defence. The explanation given for the delay was also far from satisfactory or persuasive. It was little better than the proverbial dog having eaten their homework. 

[5] Ms Edwards opposed the application. Once bitten, twice shy, she decried. She suspected that Nine and Mr Marshall were sniffing around for some ex post facto justification for their broadcasts. She submitted that Nine and Mr Marshall be required to lay their cards on the table and produce a draft defence before being granted an indulgence by the Court. She also submitted, not without some justification, that Nine and Mr Marshall had failed to provide any, or any satisfactory, explanation for why they had not filed their defence within the permitted time. 

[6] Nine and Mr Marshall were directed in those circumstances to come back when they had completed their homework, at least in draft. ...

Stalking

The final report of the Victorian Law Reform Commission's report on stalking states 

 1 This report recommends ways to improve the justice system’s response to non-family violence stalking. 

2 People who experience stalking can be trapped in a frightening situation that is hard to identify and escape. Many do not report it to police, and they may not even realise that stalking is a crime. 

3 If they do report stalking, they may not get the response they need from the justice system. 

4 Getting help through the justice system in court can be a long, frustrating and traumatic experience. 

5 Too often people who stalk do not change their behaviour. They may stalk with no consequence. 

6 The law and justice system must change so that: • People who experience stalking are protected by adequate safety measures. • The justice system responds to the justice needs of victim survivors. • People who stalk are accountable for their behaviour and are given the opportunity to address it. 

Understanding and responding to stalking 

7 Stalking is not well understood. Information about stalking is hard to find, incomplete or not clear enough. 

8 There should be education about stalking for people in the community and those who work in the justice system. 

9 People need to know more about what stalking is, how best to respond to it and the justice and support options available. 

10 For people who work in the justice system, education should include practical information that will help them respond to stalking effectively. 

Supporting people who experience stalking 

11 It can be isolating, all-consuming and frightening to be stalked. People who experience stalking should be well supported. 

12 People who experience stalking need quick, practical and ongoing support which might be different to other victims of crime. For example, those who experience cyberstalking may need tracking software removed from their phones. 

13 Victoria has the foundations of a strong support system. But it needs to be improved to make it accessible and effective for stalking victim survivors. 

14 The Victorian Government should implement recommendations on victim support from recent inquiries. It should remove any barriers to eligibility that victim survivors of stalking face. 

15 It should fund a stream of quick financial assistance to help victim survivors pay for practical things such as home security. 

16 People who experience stalking should be quickly connected with the services that can support them. 

17 Independent advocates should provide victim survivors with ongoing and ‘joined up’ support and information, to help meet their needs and enable them to feel safe. The ever-present nature of stalking makes it the kind of crime that justifies this intensive support. 

The civil response and stalking 

18 The main civil response to non-family violence stalking, the personal safety intervention order (PSIO) system, is under strain. This makes it challenging for all stalking matters to get the attention they need. 

19 The civil response should be more focused than it is now. We recommend developing evidence-informed guidance for identifying and prioritising stalking matters. 

20 The Magistrates’ Court should apply the guidance to identify stalking matters that need a specialised approach. 

21 A specialised approach—which could include a specialist workforce, court infrastructure and supports—would help make the response to stalking more effective, efficient and less traumatic for victim survivors than it is now. 

22 A potential way to implement a specialised approach for non-family violence stalking matters is through the current system of family violence courts. If that is done, these matters should be separate and clearly identified as non-family violence matters. 

23 Mediation should be used for cases that are assessed as not involving stalking or other serious harm. This would free up the civil response to focus on stalking and other serious harm. 

24 People who experience stalking should be treated fairly, be able to present their best evidence and avoid further distress. This means: • expanding the ban on publishing what happens in court, with some exceptions • preventing respondents from personally cross-examining protected witnesses in court, and funding Victoria Legal Aid to conduct the cross-examination • expanding access to legal advice and representation for PSIO applicants. 

25 Respondents, not just applicants, in PSIO matters should have access to legal advice and representation. 

26 Other changes could be made to help the civil response run efficiently and safely: • The recent implementation of online applications for PSIOs should be monitored and evaluated. • The court should be able to choose to make orders even when no one has applied. • Higher courts should rely on material from the lower courts for PSIO appeals. 

27 The response to children in the PSIO system must take into account evidence about their development and try to prevent long-term contact with the justice system. 

28 PSIOs should not be made against children under the age of 14. 

29 Alternative pathways should be available for children aged 14 and over who engage in stalking behaviour. The law should require that these pathways be explored before making a final PSIO against child respondents. 

30 Access to legal advice and representation should be expanded for child applicants and respondents in PSIO matters. Courts should be able to order that a child is legally represented. 

The criminal response and stalking 

31 The criminal justice system is not dealing effectively with stalking. 

32 People who work in the justice system can find the stalking offence hard to understand and apply. Some of them think the offence is hard to investigate and prove. 

33 The stalking offence should be drafted clearly so that it is more easily understood. 

34 Victoria Police should ensure that guidance and training are given to police to strengthen stalking investigations. 

35 Victim survivors are often told to stop using their devices to prevent cyberstalking. ‘Unplugging’ is not the appropriate solution. Victoria Police should improve its capability to respond to cyberstalking. 

36 There is no need for new criminal offences for breaches of PSIOs. 

37 While the police are increasingly responding to breaches, there are still some victim survivors who feel let down by the justice system. Victoria Police should improve how it responds to breaches. If it decides not to file a charge for a breach, it should provide its reasons to the victim survivors. 

38 People who experience stalking should have extra protections in criminal proceedings: • They should have access to alternative arrangements that make it less difficult and less traumatic to give their evidence than it is now. • Court infrastructure and facilities should be designed to protect them. • The accused should be prevented from personally cross-examining protected victims, and Victoria Legal Aid should receive funding to conduct the cross- examination. 

Responding to people who stalk 

39 For too long the response to stalking has focused on what the victim survivor is expected to do to avoid being stalked. The focus should shift to the people who commit the crime. 

40 There is some evidence that therapeutic treatment may reduce the risk of re- offending. 

41 People who stalk need to get the appropriate intervention early to stop their behaviour. But reforms, including early intervention, will only work if there are services in place. 

42 To protect victim survivors and the community there should be a coordinated, system- wide response to stalking behaviour, focusing on early intervention. 

43 The response should deliver accessible and effective treatment and support programs to people who stalk. 

44 If in the future there are strong indicators that compelling people to have treatment is an effective response to stalking in the PSIO system, the Victorian Government should consider introducing court-ordered treatment. 

45 In Australia, Victoria has the highest maximum penalty for the offence of stalking. Changes to sentencing legislation are not needed, but courts should have guidance on sentencing people who stalk. 

Future improvements 

46 Relevant data and research about stalking is urgently needed. The Victorian Government should address gaps in data and research on stalking and the justice system’s response to it. 

47 As the knowledge base on stalking improves, so should the response to stalking.

The resultant recommendations are 

 1. The Victorian Government should: 

a. identify gaps in data and research on non-family violence stalking and the justice system’s response to it 

b. identify shortcomings in existing data and research on non-family violence stalking and the justice system’s response to it 

c. support additional data collection and research to fill these gaps and address these shortcomings 

d. monitor the emerging data and research on non-family violence stalking and the justice system’s response to it 

e. ensure that any emerging data and research gaps are filled and shortcomings addressed. 

2. In ensure that frontline and specialist police improve their capability to identify, investigate and respond to non-family violence cyberstalking. implementing Recommendations 1-9 of the interim report, Victoria Police should 

3. In implementing Recommendation 8 of the interim report, Victoria Police should ensure that referrals are made efficiently to services that provide technical support for non-family violence cyberstalking for victim survivors, as set out in Recommendation 7 of this report. 

4. a. The Victorian Government should resource and support public education about non-family violence stalking and cyberstalking. This education should be based on relevant research. It should include material on: • identifying stalking and how it is a crime • the harms caused by stalking • the different forms stalking can take • how stalking is different from harassment and similar conduct • common stalking myths • how people engaging in stalking can get help to stop what they are doing • how people who experience stalking can respond, including options available through the eSafety Commissioner • the available support options and what to expect from these • the available justice options and what to expect from these.   

5. Public education should: • be ongoing and adequately resourced • be accessible • include strategies and material tailored to reach diverse communities • equip family and friends to respond constructively to disclosures • include a focus on children and young people and be delivered in schools and higher education settings, as well as to the broader community • equip health providers to respond constructively to disclosures. The Victorian Government should provide funding and support to the Judicial College of Victoria, and other agencies if appropriate, to develop and deliver ongoing training, based on relevant research, for judicial officers, judicial registrars, court staff and prosecutors to improve their response to non-family violence stalking and cyberstalking. Education should address: • barriers to accessing the justice system and responding to diverse experiences of stalking • the nature and dynamics of stalking • the effects of trauma from being stalked and how to respond in a trauma-informed way • support and justice options for stalking victim survivors • assessment and referral pathways for people who stalk. 

b. Education for prosecutors should also include the possible adverse effects of negotiating away stalking charges. 

c. Education for judicial officers, judicial registrars and court staff should also include: • identifying stalking behaviour • the impact of personal safety intervention orders on children • how to frame conditions of personal safety intervention orders for cyberstalking • when to order a pre-sentence assessment report. 

6. The Victorian Government should implement the victim support recommendations in the Centre for Innovative Justice Strengthening Victoria’s Victim Support System: Victim Services Review report and recommendations in the Legislative Council Legal and Social Issues Committee Inquiry into Victoria’s Criminal Justice System, especially recommendations 36, 37, 40, 42, 49 and 50. 

7. a. In implementing reforms to victim support, the Victorian Government should ensure that victim survivors of non-family violence stalking receive support that is practical, timely and ongoing. 

b. For victim survivors of non-family violence cyberstalking the Victorian Government should also ensure that the support provided by private technology companies is regulated and safe. 

c. The Victorian Government should ensure that for victim survivors of non-family violence stalking, including cyberstalking: • pathways to early support are developed • any barriers to eligibility are addressed • access to support is improved for underserved groups • guidelines and training are provided to victim support staff on stalking. 

8. The Victorian Government should fund a stream of timely financial assistance so that victim services can administer flexible support packages or brokerage to assist victim survivors of non-family violence stalking, including cyberstalking. This should include financial assistance to implement safety plans. 

9. a. The Victorian Government should consult on and co-design a model of victim support that uses advocates to provide continuous support for people who have experienced non-family violence stalking. These independent advocates should: • provide information about justice options and progress through the justice system • support victim survivors to understand and exercise their rights • assist with planning for their safety when they are experiencing stalking • support their individual needs • liaise with, and advocate for victim survivors to, services and the justice system. 

b. The model of an independent advocate should: • be available as soon as a disclosure of stalking is made and not depend on a person’s engagement with the criminal justice system • include diverse points of referral and access to such support • enable advocates to provide individualised support, including specialised expertise and understanding of working with people from diverse backgrounds • give priority to people who are currently underserved. 

10. The Victorian Government should provide all necessary assistance to the Magistrates’ Court of Victoria to enable the Court to develop evidence-informed guidance for identifying and prioritising non-family violence stalking in personal safety intervention order matters. 

11. The Magistrates’ Court of Victoria should apply the guidance developed in Recommendation 10 to identify non-family violence stalking personal safety intervention order matters that require a specialised approach. The Magistrates’ Court of Victoria should implement a specialised approach to these matters. 

12. The Magistrates’ Court of Victoria should consider the extent to which the specialist family violence courts should be used for non-family violence stalking personal safety intervention order matters, and how the non-family nature of those cases should be differentiated within the current system. 

13. The Victorian Government should resource the Magistrates’ Court of Victoria to implement Recommendation 11. 

14. The Victorian Government should strengthen pathways from the personal safety intervention order system to mediation, in non-stalking matters only, by: 

a. making the Dispute Settlement Centre of Victoria (DSCV) mediation guidelines more available to police, magistrates, judicial registrars and court staff 

b. funding the DSCV police referral program to re-establish referrals directly from police 

c. funding DSCV to increase Dispute Assessment Officer attendance, and ensuring that as many matters as possible and appropriate have access to the personal safety intervention order mediation program, with a focus on enhancing resources for matters in rural and regional Victoria. 

15. In implementing Recommendations 1 and 3 of the interim report, Victoria Police should ensure that appropriate referrals to mediation are made for people who are not victim survivors of stalking. 

16. The Victorian Government should amend section 123 of the Personal Safety Intervention Orders Act 2010 (Vic) to extend the prohibition on publication to matters involving adults. 

17. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169 of the Family Violence Protection Act 2008 (Vic) to provide for judicial discretion to make an order allowing publication when the court reasonably considers that it is: a. in the public interest b. just in the circumstances. 

18. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169B of the Family Violence Protection Act 2008 (Vic) to enable victims to consent to publication, with appropriate safeguards. 

19. a. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to provide for a category of ‘protected witnesses’ as in the Family Violence Protection Act 2008 (Vic) that bars respondents from personally cross-examining protected witnesses. 

b. In determining whether to declare a person a ‘protected witness’ for the proceeding the court should consider the following circumstances: • the nature or seriousness of the alleged prohibited behaviour • relationship between the affected person and respondent • the level of fear of the affected person • whether cross-examination could perpetuate stalking • any specific needs of the affected person. 

20. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent provision as in section 71 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented respondents for cross-examination of the protected witness. 

21. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent of section 72 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented applicants or protected witnesses for cross-examination of the protected witnesses. 

22. Victoria Legal Aid should be funded to provide the legal representation described in Recommendations 20 and 21. 

23. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for applicants and respondents in relation to non-family violence stalking personal safety intervention order matters. 

24. Eligibility for access to legal advice or representation for applicants and respondents in non-family violence stalking personal safety intervention order matters should be determined based on the guidance developed in Recommendation 10. 

25. The Victorian Government should monitor and evaluate the implementation of online applications for personal safety intervention order matters. Findings should inform the use of online applications to ensure it is safe for use in non-family violence stalking matters and does not reduce the capacity of the court to provide an effective response to these matters. 

26. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to allow for interim orders to be made on the court’s own motion as is the case in the Family Violence Protection Act 2008 (Vic). 

27. The Victorian Government should amend the appeals process that applies to personal safety intervention orders to align with the amendments in the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) to de novo appeals from the summary jurisdiction. 

28. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to prevent personal safety intervention orders being made against respondents under the age of 14 years. 

29. a. The Victorian Government should establish and fund an evidence-informed therapeutic program to respond to children engaging in non-family violence stalking behaviour. 

b. A purpose of the program should be to avoid the need for a personal safety intervention order being made against a child respondent. 

c. The Victorian Government should evaluate the effectiveness of the program and improve the program based on the findings of the evaluation. 

30. The Victorian Government should include a legislative presumption against the making of a final personal safety intervention order against child respondents 14 years and over in the Personal Safety Intervention Orders Act 2010 (Vic). PSIOs should only be available against respondents of this age where: 

a. a therapeutic process (such as the one developed under Recommendation 29) has been undertaken but was unsuccessful, or 

b. in cases where the therapeutic process is inappropriate in all the circumstances of the case. 

31. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to include a provision similar to section 62 of the Family Violence Protection Act 2008 (Vic), empowering the court to order that a child who is neither an applicant nor respondent be legally represented. 

32. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for child applicants and respondents in relation to non- family violence stalking personal safety intervention order matters. 

33. The Victorian Government should amend the stalking offence in section 21A of the Crimes Act 1958 (Vic) to improve its clarity and practical application. The amendments should: 

a. clarify the meaning of the ‘course of conduct’ element based on established case law principles 

b. redraft the offence to create three offences based on intentional, reckless and ‘objective fault’ forms of stalking, with the elements clearly laid out and the different degrees of culpability clearly shown. 

34. In implementing Recommendations 1-4, 6 and 9 of the interim report, Victoria Police should ensure that sufficient guidance and training is given to frontline and specialist police to facilitate strong and effective investigative and evidentiary practices when considering and authorising stalking charges under section 21A of the Crimes Act 1958 (Vic). 

35. The Crime Statistics Agency should conduct a qualitative review to identify reasons for the attrition of the stalking offence in the criminal justice system. The review should examine: 

a. police and prosecution stalking files 

b. judicial reasons for not finding charges are proved in contested hearings in the Magistrates’ Court of Victoria. 

36. a. Victoria Police should review its operational policy and practice material to develop clear guidance for police members to follow when responding to alleged breaches of personal safety intervention orders in relation to victim survivors of non-family violence stalking. 

37. a. Where an alleged breach of a personal safety intervention order has occurred, but upon investigation Victoria Police decides not to file a charge, Victoria Police should provide an explanation for its decision not to charge to the person protected by the order. 

b. Victoria Police should ensure that responses to alleged breaches are timely and capable of meeting the safety needs of victim survivors. 

b. If requested by the protected person, this decision should be provided in writing. 

38. The Victorian Government should implement Recommendations 37, 40 and 41 from the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process report to amend the Criminal Procedure Act 2009 (Vic) to include a ‘protected victim’ category and provide protections in the form of alternative arrangements for giving evidence. 

39. The Victorian Government should introduce measures under the Criminal Procedure Act 2009 (Vic) to allow ‘protected victims’ to give their evidence in the form of a pre- recording. 

40. The Victorian Government should implement Recommendation 43 of the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process and Recommendation 85 of the Improving the Justice System Response to Sexual Offences reports to strengthen measures to protect victim survivors of stalking attending court. 

41. The Victorian Government should amend Part 8.2, Division 3 of the Criminal Procedure Act 2009 (Vic) so that the Division on cross-examination of protected witnesses applies to a criminal proceeding that relates (wholly or partly) to a charge for stalking. 

42. The Victorian Government should ensure that Victoria Legal Aid is resourced to provide legal representation to unrepresented accused in accordance with section 357(2) of the Criminal Procedure Act 2009 (Vic). 

43. The Victorian Government should develop a coordinated response to non-family violence stalking to deliver accessible and effective treatment and support programs to people who stalk. The coordinated response should involve: 

a. ongoing research on the effectiveness of and ways to improve responses to stalking behaviour 

b. increasing the availability of general treatment and support in the community and justice system 

c. support that is tailored to the person’s individual needs 

d. improving access to and availability of early intervention programs for people who stalk, especially in rural and regional Victoria e. improving access to and availability of prison-based rehabilitation and reintegration programs f. strengthening assessment and referral pathways from police, lawyers and courts. 

44. If there are strong indicators that compelling treatment is an effective response to non-family violence stalking in the personal safety intervention order system, the Victorian Government should consider introducing court-ordered therapeutic orders, as is the case in the Family Violence Protection Act 2008 (Vic). 

45. The Judicial College of Victoria should develop guidance for sentencing breaches of personal safety intervention orders, similar to the guidance that exists for sentencing breaches of family violence intervention orders and family violence safety notices under the Family Violence Protection Act 2008 (Vic).

Forensics

The Interim Report of the Commission of Inquiry into Forensic DNA Testing in Queensland (by the former President of the Court of Appeal, retired judge Mr Walter Sofronoff KC) states 

 1. Immediately before early 2018, Queensland Health Forensic and Scientific Services (“FSS”) would process samples submitted for Major Crime Casework that returned a quantitation value between 0.001 ng/μL and 0.0088 ng/μL by submitting them automatically to concentration using Microcon filters (referred to within FSS as "auto-microcon"), amplification, capillary electrophoresis and profiling. 

2. In early 2018, FSS began to process such samples in accordance with “option 2” referred to in paragraph 8 on page 9 of 'A review of the automatic concentration of DNA extracts using Microcon® Centrifugal Filter Devices: Options for QPS consideration' dated January 2018 and submitted under the names of Mr A3 and Ms B, both FSS officers. 

3. Option 2 provided as follows: Cease the ‘auto-microcon’ process for Priority 2 (Major Crime) casework and report the exhibit result of ‘DNA insufficient for further processing’ based on Quantification result. 

4. The result of the adoption of this process by agreement between FSS and the Queensland Police Service (“QPS”) was that samples for Priority 2 (Major Crime) Casework that returned a quantitation value in the range between 0.001 ng/μL and 0.0088 ng/μL: 

a. would not be processed further (unless expressly requested by QPS or unless a scientist within FSS did so) and, 

b. would be reported in the Forensic Register as containing “DNA insufficient for further processing” or words to similar effect (hereafter referred to as “the DIFP Statement”) and accompanied by the words: This item/sample was submitted for DNA analysis; however the amount of DNA detected at the quantitation stage indicated the sample was insufficient for further processing (due to the limitations of current analytical and interpretational techniques). No further processing was conducted on this item. Please contact Forensic DNA Analysis if further information is required.   

c. would be reported in Queensland Police Records and Information Management Exchange (“QPRIME”) as containing the DIFP Statement and accompanied by the words: This item/sample was submitted for DNA analysis. Low levels of DNA were detected in this sample and it was not submitted for further profiling. Please contact the DNA Management Section if this sample is requested to be assessed for further processing. Further processing could include concentration of the low levels of DNA obtained, pooling with other samples (where appropriate), resampling of the parent item (where appropriate), or a combination of processes. 

5. In instances in which a witness statement was required for criminal proceedings, samples with quantitation within the range 0.001 ng/μL and 0.0088 ng/μL would be reported as having “Insufficient DNA for analysis” or words to similar effect. 

6. In fact, the possibility of obtaining a profile from these samples cannot be excluded because, although it might be that the samples contained insufficient DNA to develop a DNA profile, it might also be that the samples contained: a. sufficient DNA to obtain a partial DNA profile, or, b. sufficient DNA to obtain a full DNA profile. 

7. It follows that the DIFP Statement as used in witness statements was untrue. 

8. When a quantitation result is below 0.001 ng/μL, FSS reports the result on the Forensic Register as “No DNA detected”. When a witness statement is prepared for criminal proceedings, the result is reported in the same way. 

9. In fact, such a quantitation result signifies that technical equipment did not have the capacity to determine either the presence or absence of DNA with reliability. 

10. Samples with quantitation results below 0.001 ng/μL are capable of generating useable profiles although the likelihood is low. 

11. As a consequence, the description “No DNA detected” as used in witness statements is misleading. 

12. The following are my reasons for reaching these conclusions.

The Commissioner's recommendations are 

a. Every Witness Statement issued by FSS since February 2018 in which a sample has been reported under the rubric “DNA insufficient for further processing” or any similar expression, and in which a sample has been reported as “No DNA detected” be identified by FSS without delay in a manner that will ensure ease of production of a list of such statements and, if required, the production of the statements themselves and the due provision of quants that were the basis for such statements. 

b. For every such statement, a further statement be prepared by FSS stating that:

i. In each case in which the DIFP Statement has been used, that the statement was not correct and that the sample contains a low level of measurable DNA which, if fully processed, might produce an interpretable profile. 

ii. In each case in which the statement “No DNA detected” has been used, that the statement was not correct and that the sample returned a quantitation result below the level of detection but that further work might result in a useable profile but that that is unlikely. 

c. That the Queensland Government take steps to ensure that public bodies and publicly funded bodies that require additional funds or other resources to investigate, consider and resolve these issues be furnished with the necessary funds and resources so that any miscarriages of justice are resolved as promptly as is practicable.

Regulatory Failure

An acute analysis of regulatory failure - ongoing inaction by the OAIC - is provided in 'Australia’s Forgotten Privacy Principle: Why Common ‘Enrichment’ of Customer Data for Profiling and Targeting is Unlawful' by Katharine Kemp. 

The author states 

Many companies are not satisfied with collecting only the personal information that customers provide during a transaction or sign-up, or even the additional personal information they collect about the customer’s activities on the company’s own website or app. Instead, there is a common practice of companies adding to the profiles they compile on each of their customers by collecting extra information about the customer from third parties, including other unrelated retailers, loyalty programs, data analysts and data brokers. The industry euphemism for this practice is ‘data enrichment’. Extra information collected by companies ranges from the customer’s age and income to health, family situation and purchases from other companies online and offline. 

The further personal information is not necessary for the transaction or provision of the service in question, and its collection is not visible to the consumer. Nonetheless, many companies seem to consider they are entitled to collect this further information in pursuit of the power to create more detailed consumer profiles, predict the consumer’s actions and intentions, precisely target advertising and influence consumer behaviour (collectively, ‘profiling and targeting’). 

This paper argues that much of this collection of personal information is already unlawful in Australia. Organisations are forgetting – or overlooking – a critical obligation about when personal information can be collected from third parties rather than from the individual themselves. 

Australian Privacy Principle 3.6(b) is the forgotten privacy principle. The essence of this rule is that personal information should be collected directly from the individual concerned (‘direct collection’), rather than from third parties or other sources. 

For organisations, the only exception to the general rule requiring direct collection is if it would be ‘unreasonable or impracticable’ for the organisation to collect the personal information only from the individual- eg, when an individual is being investigated for suspected fraud, or where legal documents must be delivered to an individual who has changed address. The exception to direct collection does not apply simply because an organisation seeks more personal information for profiling or targeting but does not wish to ask the individual for it directly for fear that the individual would object.

Policing, Health and Mumbo Jumbo

The NZ High Court in William aka Larsen v New Zealand Police Company [2022] NZHC 2374 has reiterated disquiet with sovereign citizen claims. 

Churchman J states 

[5] The statement of claim refers to events which occurred on 20 February 2022 and subsequently. The following events occurred that day: A logging truck was observed driving towards the Rimutaka Hill with no registration plates and was in poor condition. The truck was stopped by police. The driver was asked to turn the engine of his truck off so that the police could speak to him. He refused. The driver was asked to provide his details but also refused saying that he did not have to provide them. A police check confirmed the driver as Scott William Larsen. A check of police records showed that Scott William Larsen had a fines warrant and was a forbidden driver. Scott William Larsen was arrested. He refused to get out of the truck’s cab or unlock the door and indicated that he did not accept the jurisdiction of the police officers to arrest him. In order to effect the arrest, the driver was sprayed through the slightly open driver’s window which resulted in him getting out of the cab and being transported to the Upper Hutt Police Station. The truck was seized and impounded. Scott William Larsen was charged with a number of offences including: ➢ being the driver of a motor vehicle during a period that he had been forbidden to drive; ➢ operating a vehicle in a transport service without a licence; ➢ resisting police in the execution of their duty. 

[6] Because of the confused nature of the statement of claim, it is not possible to discern exactly what happened next but it seems that the plaintiff was convicted and fined, and his truck was sold to pay the fines. 

Analysis 

[7] The plaintiff contends that neither the police nor Justice system have any authority over him and categorises their actions in apprehending and prosecuting him as amounting to fraud, slavery, malfeasance of public office [sic] and deception. 

[8] The statement of claim is full of pseudo-legal mumbo jumbo that is characteristic of the “sovereign citizen” school of thought. 

[9] The Court of Appeal in Warahi v Chief Executive of the Department of Corrections described the sovereign citizen movement as:

...an ideology that first emerged in the United States in the 1970s. [The] core belief, for present purposes, is that [Sovereign Citizens are] not subject to the jurisdiction of the State (including legislation enacted by Parliament or decisions made by the Court). This belief is based (at least in part) on the dual persona-theory the proposition that individuals have two personas, one of the flesh and blood and the other a separate legal or “corporate” personality that is subject to the jurisdiction of the State. Followers of the Sovereign Citizen movement believe that it is possible to dissociate themselves from their legal or corporate persona, and hence free themselves from the jurisdiction of the State [they believe they have] successfully done this and, as a result, the State has no authority over [them].

[10] The Courts have consistently held that it is an abuse of process for a litigant to attempt to employ sovereign citizen concepts in seeking to avoid or defeat any State, regulatory, contract, family or other obligations recognised by law. 

[11] Consistently with the other cases where the sovereign citizen theory has been invoked to attempt to escape the jurisdiction of the Court, I hold that these proceedings are plainly an abuse of the process of the Court, and strike them out.

In Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 the Commission states 

[9] Mr Bakhash filed submissions on 25 August 2022. Mr Bakhash submits his appeal consists of two parts: Firstly, I absolutely hold steadfast to the belief that I do have a reasonable excuse for not following this Direction. My right to refuse an injection is based on my inalienable right as an independent sovereign citizen to refuse this mandated and coerced medical injection. This right is not extinguished by any chief health officer’s Direction or any such narrow rulings by any court. ... 

[14] The department submits that the appeal should not be heard because it has no reasonable prospects of success. The department notes the assertions by Mr Bakhash that the direction violates his personal rights and right to informed consent have been addressed extensively by the Commission, and it is exceedingly unlikely that the matters will be interpreted differently by the Commission in this case if the matter proceeds. 

[15] The department relies on the numerous cases where the Commission has found that the direction is lawful and reasonable, and submits that it was open to the department to form a reasonable belief that Mr Bakhash was liable to discipline for failing to follow a lawful and reasonable direction. 

[16] The department submits that to the extent that Mr Bakhash asserts his right to informed consent involves some degree of novelty, he is mistaken. 

[17] The department further notes Mr Bakhash's appeal notice advances the argument that the disciplinary action was not appropriate in the circumstances. The department notes that the commission has found disciplinary action up to and including termination of employment to be fair and reasonable in cases similar to that of Mr Bakhash. ... 

[20] The letter Mr Bakhash attached to his submissions traverses a number of arguments that have been unsuccessfully raised on numerous occasions in this Commission, including but not limited to: A number of statutory instruments that Mr Bakhash submits render the direction unlawful, including the Privacy Act 1998, the Human Rights Act 2019 (Qld), the Commonwealth Constitution, the Criminal Code Act 1995 (Cth), and the Biosecurity Act 2015 (Cth); Mr Bakhash cannot provide informed and valid consent to have the vaccine; Mr Bakhash does not require any pharmaceutical medication for his health; and Vaccines do not prevent individuals from contracting COVID-19 or spreading COVID-19. 

[21] In Elliott v State of Queensland (Queensland Health), I made the following observations in relation to such arguments that have previously been heard and determined before this Commission: 

[29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment. 

[30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera. 

[31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature. 

[32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard.