Oo, those awful judges

The curmudeonly Edmund Wilson in 'Oo, Those Awful Orcs' (1956) offered a slapdown - presumably unpersuasive to Tolkien fans - of The Lord of the Rings. 

Orcs are less scary than 'judicial activists', assailed in 'Who Makes The Law? Reining in the Supreme Court' by Roger Partridge (The NZ Initiative) ... 'a Wellington-based think tank supported primarily by major New Zealand businesses'. 

The 40 something page polemic echoes traditional claims in Australia and elsewhere during the 1980s about the perniciousness of 'activist', 'unaccountable', 'unrepresentative' judges, explored for example in Michael Kirby, 'Judicial Activism' (Hamlyn Lectures, 2004) and 'Judicial activism: power without responsibility? No, appropriate activism conforming to duty' (2006) 30(2) Melbourne University Law Review 576 or Dyson Heydon, 'Judicial Activism and the Death of the Rule of Law' (2004) 10 Otago Law Review 493. 

'Who Makes The Law' states that

Recent decisions from New Zealand’s Supreme Court have sparked widespread alarm. They show a court that has misunderstood its role and overstepped its bounds. 

The Court’s approach raises a very serious question for voters: Just who makes the law in New Zealand? Is it democratically elected politicians or unaccountable judges? At the heart of our legal system is a delicate balance of power between the three branches of government: Parliament, the courts and the executive. This balance is anchored in the idea of the ‘separation of powers’. This idea assigns distinct responsibilities to each branch. 

The role of judges is primarily backward-looking. It is to adjudicate historical disputes between parties about their existing legal rights and obligations. Judges do this by applying the law as it stood when the dispute arose to the facts agreed by the parties or found by the court. In contrast, Parliament’s role is forward-looking. The legislature is responsible for making new laws and amending existing ones to shape our legal commitments for the future. In our legal pecking order, Parliament is also ‘sovereign’ or ‘supreme’, sitting above even the Supreme Court. When each branch of government stays in its lane, the country’s constitutional machinery operates smoothly. But when these boundaries are crossed, the engine of government begins to falter. 

In recent cases, the Supreme Court has been actively stepping out of its lane, blurring the traditional separation between the roles of judges and Parliament. This shift represents a significant departure from the Court’s proper constitutional function. 

The Supreme Court’s overreach is having serious consequences. By mixing judging and lawmaking, the Court has strayed into shaping policy. This is properly the role of Parliament. Because judges lack the political accountability of politicians, the Court’s approach undermines the democratic legitimacy of the law. 

The Court’s approach has also made the law more uncertain and unpredictable. As the Court reinterprets legislation and reshapes common law principles, individuals and businesses can no longer rely on clear statutory language or stable precedents. Yet, certainty and predictability are fundamental requirements of what lawyers call ‘the rule of law’. 

The Supreme Court’s departure from these fundamental principles shows up in two key areas. First, the Court has adopted a loose approach to interpreting laws passed by Parliament. Increasingly, it is stretching or even ignoring clear statutory language. Effectively, the Court has granted itself the power to rewrite legislation it does not like. This oversteps Parliament’s rightful role. Second, the Supreme Court has changed how it handles the ‘common law’. Common law is the body of rules judges have made through court rulings over centuries. However, the Supreme Court now acts more like Parliament in this area. It has dropped the traditional approach of gradually adjusting the common law to fix mistakes or handle novel situations. Instead, the Court favours a radical new approach of reshaping common law rules to match its views of today’s ‘social values’. 

The Supreme Court’s ruling in the ‘three strikes’ case of Fitzgerald shows the first of these two problems. Regardless of what one thinks of the ‘three strikes’ law, it is obvious to any independent observer that the Court rewrote clear statutory language to avoid what it saw as a clash with the New Zealand Bill of Rights Act 1990. 

The Supreme Court’s decision in the Peter Ellis case is a good example of the second problem. The Ellis case had no Māori link. Yet, the Court took it upon itself to consider tikanga Māori in deciding that Ellis’s appeal against his convictions could carry on despite his death. This decision overturned longstanding rules for recognising tikanga as law. And it did so without providing a clear new framework. This has created a legal vacuum undermining the certainty and consistency required by the rule of law. 

The Ellis decision shows the problem with a Court that sees its role as ‘developing’ the law to reflect changing societal values. At the time, Parliament had asked the Law Commission to study tikanga’s role in our legal system. By rushing ahead, the Supreme Court sidestepped this careful, democratic process. There could hardly be a clearer example of a court overstepping its bounds – and with unfortunate consequences. 

The Supreme Court’s overreach challenges the proper constitutional balance between the judicial and legislative branches. If left unchecked, it will turn the judiciary into a powerful policymaking body, unaccountable to voters. This would represent a fundamental shift in how we run our country, one that Parliament has not sanctioned and the public has not approved. 

As the highest lawmaking body, Parliament needs to act. It must reassert its sovereignty by redrawing the lines that hold up our way of governing. To address these concerns, this report proposes five options to restore the balance to our legal system. 

First, Parliament could use targeted legislation to clarify what the law means. It could also overturn the Court’s worst decisions, misinterpreting the law. This has been done before. Not long ago, Parliament passed legislation under urgency to reverse the effect of the Supreme Court’s decision regarding the Child Protection (Child Sex Offender Registration) Act 2016. It is not surprising that the current Government is thinking about taking this course in response to troubling court rulings on the Marine and Coastal Area Act 2011. This shows how timely and practical this recommendation is. 

Second, Parliament could change the Senior Courts Act 2016 to set out more clearly what it means by the ‘rule of law’. Setting out a narrow or ‘formal’ meaning of the rule of law would help restrain the courts from judicial overreach. 

Third, Parliament could change the Legislation Act 2019 to include tighter rules for the courts when interpreting statutes. These changes would rein in the judiciary’s loose approach to interpreting Parliament’s words. They would require judges to stick more closely to the text and purpose of legislation passed by Parliament. 

Fourth, Parliament could consider amending or repealing section 6 of the New Zealand Bill of Rights Act 1990. The courts have used this section to justify big shifts from clear statutory language. Fixing this could help stop judges from rewriting laws. 

Finally, changes could be introduced to how senior appellate judges are selected. New criteria could favour candidates who show judicial restraint and respect for Parliament. Parliament setting fixed terms for Supreme Court judges could also help. These changes could help guard against our most senior judges gaining an exaggerated view of their role. 

These options give Parliament several ways of tackling judicial overreach. None of them threaten judicial independence or the rule of law. Instead, they aim to protect these fundamental values. They will help make sure the courts stay within their proper bounds. When the judiciary oversteps its role and takes over Parliament’s job, it harms the foundations of the rule of law it is meant to uphold. 

Parliament reasserting its rightful place will strengthen the backbone of our democracy. It leaves the courts to play their key role in settling rights and dealing out justice within the framework of laws made by Parliament. This ensures courts continue to protect rights in specific cases. But the wider choices about the scope and balance of rights stay with elected politicians answerable to voters. 

Constitutional change tends to be slow and thoughtful. However, the urgency of the situation means Parliament must act quickly and decisively. It must stop the current drift towards ‘judicial supremacy’. 

The Supreme Court’s recent decisions have raised alarm across the legal and political spectrum. Public trust in the impartiality and legitimacy of the courts is at stake. By taking the measures outlined in this report, Parliament could start to address these concerns and restore the proper balance. 

The alternative is a slow but steady erosion of our constitutional foundations. An activist judiciary will gradually supplant the democratic process. This is not the system of government our constitution envisions. Parliament must act now to maintain the integrity of our legal system for generations to come.

Academia

'Working at the level above: university promotion policies as a tool for wage theft and underpayment' by Troy Heffernan and Kathleen Smithers in (2024) Higher Education Research and Development comments 

Higher education has a strong relationship with wage theft, which has been examined throughout years of research, reports, and government enquiries. This paper examines the practices of wage theft that often surround academic promotions, and specifically, the common requirement that someone must already be working at the level for which they are hoping to be promoted. The work uses Australia’s higher education sector as an example, as Australia’s employment and promotion conditions are similar in many aspects to other higher education sectors. The paper provides an analysis of the promotion expectations to which academics are subjected to understand what tasks academics are expected to complete, and for how long, without being paid, before they can apply for promotion. The paper demonstrates to academics, policymakers, and unions, yet another exploitative practice that must be monitored and removed from the modern university as the sector looks to engage more equitable practices. 

Wage theft and employee underpayment have a close and entangled relationship with higher education. Mainstream media articles such as ‘Wage theft is core university business’ and ‘Wage theft: Our universities’ dirty little secret’ (Cahill, 2020, 2021) identify how the problem of university wage theft and underpayment is so widespread that its notoriety reaches beyond academic research and interest (Heffernan, 2022). Although sometimes used interchangeably, wage theft is much more than just underpayment of staff. Wage theft includes underpayment, failure to pay superannuation, not paying for training or trial periods, not paying appropriately for higher duties, deliberate employee misclassification and more (Australian Council of Trade Unions, 2020; Australian Unions, n.d.) Exploitation and underpayment have become such a problem in some sectors that government reports are highlighting the issue as these sectors attempt to right some of the wrongs from their past (Australian Federal Government, 2024). Much of the wage theft and exploitation that has previously been investigated and written about relates to underpayments of casual staff including system errors, mistakes, unfair work practices, and a sector generally not concerned with how its workers are treated. Many of these issues remain buried and hidden, only surfacing years later when enough people begin collectively asking why they were not paid for work they had completed (Richards, 2021). This paper, however, examines a more explicit form of wage theft – one written into publicly accessible policy documents. 

This paper explores what is required to gain promotion in the modern university. The work analyses university promotion policies to demonstrate the practices institutions are using to exploit their academic employees. Australia was selected as the chosen location for analysis as over 85% of the country’s 39 universities have engaged in wage theft (NTEU, 2024). Yet, much of what occurs in the Australian university sector and its policies is reflective of what happens in other global sectors – particularly in the Global North (Smithers et al., 2023). Australia also follows the European model where a permanent or continuing position is usually gained early in one’s career, rather than the North American tenure system where secure employment is gained via a large body of work (Heffernan, 2022). Nonetheless, Australia’s academic hierarchy (Table 1) is broadly reflective of many other sectors, and is easily decipherable in a global occupation such as academia. Thus, though the paper examines Australia’s higher education sector, the paper’s results provide insights to international readers interested in exploitative promotional practices. ... 

The topic of examining the requirements to be considered for promotion is also happening at a time when the university as a wider system has undergone more than half a century of rigorous change since the 1960s onwards. Though the massification of the university has occurred at different times in different countries depending on budget, development, and even experiences following the Second World War, higher education in the early-twenty-first century has few resemblances to higher education in the early-twentieth century (Esson & Ertl, 2016). The repercussion of the last few decades is that in most sectors, the university is no longer a community of scholars, governed by scholars, largely for society’s elite. The university is now a business that experiences competition from other institutions, and each must vie for student numbers and funding. Accordingly, the university can no longer think of itself or act as a scholarly institution dedicated to enhancing research, learning, and communities – it may do these things but it must do so in a business-focused environment. For these reasons, the university has very different priorities today than it did only a few decades ago, which does mean that success in this space as an employee is also different today than it once appeared (Jones, 2022). 

These changes are evident in part by the different tasks academics of today are expected to complete to climb the academic hierarchy (such as those discussed in this paper), but perhaps the clearest indication of changes we have seen in academic careers is the titles associated with academia such as Lecturer, Reader, Associate Professor and Professor and now more often tied to level of employment, and sometimes in ways that are completely devoid of any academic expertise and knowledge. When people can climb the academic ladder through administrative work with no research profile, or experienced business leaders are being brought into universities and given the title of ‘Professor’ without holding a doctoral qualification, the employment and career landscape has undoubtedly changed (Heffernan, 2024). These changes, however, help us understand why changes in academic career practices, expectations, and progression is happening, but it does not excuse the manipulative promotion practices that have formed in many institutions. 

This paper brings to light the exploitative methods that have become standard practice in many universities. When wage theft is broadly defined as completing work for which one is not adequately paid for completing (Hare, 2022), and universities have created a system of promotion that routinely requires staff to be working partially or wholly at a level above their current role, the systematic manipulation and exploitation of academic staff is clear. That universities engage in such practices should also not come as a surprise as academia is an industry often built on gifted labour, and the sector regularly rewards people working harder than required in the hope of faster promotion, grant success, or leadership roles (Heffernan, 2024). However, this paper is not about personal choice or unwritten rules that lead to dubious work expectations; this study investigates the documented and clear practice of universities requiring staff to complete work, for which they will not be paid, if they hope to be considered for promotion. In a sector that is trying to rectify many of its questionable past work practices and inequitable decisions that have come to light through research, inquiries, and reports, that this form of wage theft continues is one practice that must be reassessed by university policymakers, academics, managers, and unions.

Regulating Platforms

'“Digital Colonization” of Highly Regulated Industries: An Analysis of Big Tech Platforms’ Entry into Health Care and Education' by Hakan Ozalp, Pinar Ozcan, Dize Dinckol, Markos Zachariadis and Annabelle Gawer in (2024) 64(4) California Management Review comments 

Digital platforms have disrupted many sectors but have not yet visibly transformed highly regulated industries. This study of Big Tech entry in healthcare and education explores how platforms have begun to enter highly regulated industries systematically and effectively. It presents a four-stage process model of platform entry, which we term as “digital colonization.” This involves provision of data infrastructure services to regulated incumbents; data capture in the highly regulated industry; provision of data-driven insights; and design and commercialization of new products and services. The article clarifies platforms’ sources of competitive advantage in highly regulated industries and concludes with managerial and policy recommendations. 

Over the past few years, digital platforms have disrupted competition and innovation across many sectors, including retail, entertainment, hospitality, transportation, gaming, and music. Platform firms are now dominating the list of biggest firms by market capitalization, often referred to as “Big Tech” players. Recently, the prevalence of digital platforms has further increased in various industries as the COVID-19 pandemic amplified the role of digital services in people’s lives, reshaping customer habits from how they shop, work, and entertain while skyrocketing the revenues of digital platforms. These Big Tech firms are under scrutiny regarding how much value they return to end customers as they acquire, analyze, and take advantage of their data to boost profits and influence markets. 

While platform firms have now become prevalent in many industries, highly regulated industries such as healthcare and education had lagged behind until recently, but there are clear signs that this has started to change. Considering these changes, we explore the entry paths of Big Tech platforms (more specifically Google (Alphabet), Amazon, Facebook (Meta), Apple, and Microsoft, also known as GAFAM) into highly regulated industries by looking at the prominent examples of healthcare and education in the context of the United States and United Kingdom, where they have been most active in these industries so far. 

The Platform Business Model and the Role of Data 

A platform creates value thanks to its advantages in connecting different users through enhanced matchmaking and facilitating transactions among them (e.g., by connecting customers and complementors). Platforms can achieve rapid growth through highly scalable technological intermediation and reduction of various costs for transacting, matching, and innovating. Platform growth is further fueled by network effects, and this mechanism underpins how the value a user receives from a platform increases with each new user on the same side of the platform (i.e., direct network effects) and the other side of the platform (i.e., indirect network effects). More recently, there has also been the growing importance of data network effects, which refer to the increasing value users obtain from the platform in parallel with the amount of data the platform accumulates, such as better recommendations on Netflix. Thanks to their digital nature, platforms can connect various platform sides via digital interfaces4 and, in the process, accumulate/leverage external resources (i.e., data) to develop relevant capabilities (i.e., algorithm-driven data analysis) to improve further and expand their offering. 

Due to their digital properties, use of data, and platform business models, certain technology companies have rapidly grown, becoming some of the largest and most influential firms globally (see Figure 1 for Big Tech firms’ market caps). Big Tech firms started out as platforms with a single and focused intermediation activity (e.g., search engine). From there, they grew significantly in scope and entered new industries. Initially, they typically expanded into the space of their own complementors within their platform ecosystems (e.g., AmazonBasics competing with its own third-party sellers). Following this, they have entered related or adjacent sectors (e.g., Facebook acquisition of Instagram) or what may at first seem to be unrelated markets (e.g., Google acquisition of Waymo). ... 

Data sit at the heart of every digital platform. As such, the main logic underpinning the various market segment entries by platforms seems to aim to maximize data collection; enhance data network effects that they have already built across industries7 to create more value; apply their data analysis capabilities; and take precedence over existing firms while improving products/services for consumers. 

This data-centric approach to platform growth and industry entry, however, regularly raises questions on data privacy, fair competition, and the balance of value creation and value capture in industries where platforms enter. These issues become even more critical in highly regulated industries where value creation becomes extremely important (e.g., patient lives saved by new technologies), and concerns around data privacy and fair competition are even more salient (e.g., medical or learning records already used by Google and others). 

Platforms in Highly Regulated Industries 

Despite the penetration and dominance of digital platforms in several industries, highly regulated sectors such as education, energy, finance, and healthcare appeared to have been left behind9 due to high regulatory control creating barriers to entry for platforms. Highly regulated industries typically have high entry barriers and high operational and compliance costs, as visible from the various regulations for the healthcare and education industries in Table 1. Compared with other industries where regulatory interventions are typically “lighter” (e.g., taxi and transportation services), industries such as healthcare and education are characterized by the heavy involvement of state and government actors. This is mainly because of the crucial strategic role these industries play in ensuring social welfare and boosting the country’s economic growth and development, but also due to the associated social ramifications in terms of access, fairness, equality, privacy, and data sensitivity, as these factors directly tie to human and constitutional rights (e.g., “right to education”). Such state-controlled apparati, in addition to imposing a large set of rules and procedures upon private firms, often leave limited room for private actors to operate in, which presents a distinct challenge to market entrants. ... 

Then, there is the thorny issue of data. Prospective digital platform entrants require data to develop new products or services, which calls for different strategies in highly regulated industries due to the need to capture and process sensitive personal data. If leaked or misused, such data can cause harm to individuals—for example, biometric data, genetic data, health-related data, race, or ethnicity data (typically held by healthcare providers), religious or philosophical beliefs (typically expressed in the context of education and recorded in essays, online educational platform discussions, and so on), and student education records.  This tends to raise the level of regulation further, thus exacerbating inhibition of new entry. Due to such considerations, digital platforms have, until recently, mostly been absent from highly regulated industries. However, this is changing. Despite the challenges noted above, we observe that Big Tech firms are expanding their platforms into some of these highly regulated industries. Recent examples include Amazon acquiring U.S. online pharmacy Pillpack, Alphabet-Google partnering with the United Kingdom’s National Health Service (NHS) for data sharing and developing AI-powered healthcare services, and U.S. universities partnering with Amazon to install Alexa in the dormitories and elsewhere. In 2020, the COVID-19 pandemic accelerated this trend further by causing the emergence of new initiatives. Examples include Google’s subsidiary Verily offering COVID-19 testing and tracing, Google and Apple cooperating on mobile operating systems for COVID-19 contact tracing, Google Education expanding to support remote education, and Amazon offering COVID-19-specific Amazon Web Services (AWS) solutions for hospitals and research institutes. 

Building on these trends, this article explores how Big Tech platforms enter and compete in highly regulated industries. Focusing on healthcare and education industries, we identify an entry pattern for these digital platforms, in which they typically begin as suppliers of data-infrastructure services to incumbents in the first phase. As incumbent service providers such as hospitals, schools, healthcare conglomerates typically lack capabilities in data management, they contract out these activities to Big Tech firms as technology service providers, aiming to reduce costs and improve services. In the second phase, Big Techs leverage their existing relationships as well as their data analysis capabilities (which they use to produce data-driven insights) to get access to the data already held by incumbent service providers. This indirect data capture (e.g., access to already collected data in a hospital), which they combine with their own direct data capture activities (e.g., through proprietary hardware such as Apple Watch, Google Tablet), then becomes an essential component of Big Tech firms’ entry pathway into the targeted highly regulated industry. As Big Tech firms combine the data they captured directly and indirectly, they can provide superior data-driven insights, which can add significant value to incumbent service providers (e.g., through saved lives, better learning outcomes, and lower costs). We find that a final component of entry for Big Tech firms is the design and commercialization of new products and services for the highly regulated industry target, where they may end up competing with their former clients over time. 

Overall, our research suggests that Big Tech entry in highly regulated industries occurs via a process that we name “digital colonization,” which we specify as composed of four stages: provision of data infrastructure services to incumbents; direct and indirect data capture in industry; provision of data-driven insights; and design and commercialization of new products and services. While Big Tech firms rarely end up directly offering the “primary service” (e.g., providing school education or becoming primary healthcare providers) in highly regulated industries, they change the power dynamics in these industries over time by commoditizing incumbent service providers, turning them into mere complementors while Big Tech firms control the data and become unique providers of critical, data-driven value.

Digital Courts and AI

Victorian Law Reform Commission's Artificial Intelligence in Victoria’s Courts and Tribunals: Consultation Paper reflects the following Terms of Reference

Opportunities and risks of artificial intelligence in Victoria’s courts and tribunals Artificial intelligence (AI) tools are rapidly evolving, with their application increasing across society. There is potential for the use of AI in Victoria’s courts and tribunals to improve user experiences and generate efficiencies. The use of AI tools carries both risks and opportunities for fairness, accountability, transparency and privacy as well as improvements to accessibility. 

The Victorian Law Reform Commission (the Commission) is asked to make recommendations on legislative reform opportunities and principles to guide the safe use of AI in Victoria’s courts and tribunals. In developing its recommendations, the Commission should consider:

• opportunities to build on existing legislation, regulations and common law in supporting the use of AI within Victoria’s courts and tribunals; • the benefits and risks of using AI in Victoria’s courts and tribunals, including risks relating to accountability, privacy, transparency, and the accuracy and security of court records; • the need to maintain public trust in courts and tribunals, and ensure integrity and fairness in the court system; • the rapid development of AI technologies and how this may influence the extent to which such technologies should be adopted and regulated, and; • applications of AI and how it is regulated in comparable jurisdictions and contexts (including work being done to develop a framework for regulating AI at the federal level in Australia) and potential learnings for Victoria.

The Commission is asked to provide principles or guidelines that can be used in the future to assess the suitability of new AI applications in Victoria’s courts and tribunals. 

 The Consultation Paper features a 'Question List' 

 Chapter 2: What is artificial intelligence? 

1. Should courts and tribunals adopt a definition of AI? If so, what definition? 2. Are there specific AI technologies that should be considered within or out of the scope of this review? 

Chapter 3: Benefits and risks of AI 

3. What are the most significant benefits and risks for the use of AI by a. Victorian courts and tribunals? b. legal professionals and prosecutorial bodies? c. the public including court users, self-represented litigants and witnesses? 

4. Are there additional risks and benefits that have not been raised in this issues paper? What are they and why are they important? 

Chapter 4: AI in courts and tribunals 

5. How is AI being used by: a. Victorian courts and tribunals b. legal professionals in the way they interact with Victorian courts and tribunals c. the public including court users, self-represented litigants and witnesses? 

6. Are there uses of AI that should be considered high-risk, including in: a. court and tribunal administration and pre-hearing processes b. civil claims c. criminal matters How can courts and tribunals manage those risks? 

7. Should some AI uses be prohibited at this stage? 

Chapter 5: Regulating AI: the big picture 

8. Are there lessons from international approaches that we should consider in developing a regulatory response for Victorian courts and tribunals? 

9. What would the best regulatory response to AI use in Victorian courts and tribunals look like? Consider: a. which regulatory tools would be most effective, including rules, regulations, principles, guidelines and risk management frameworks, in the context of rapidly changing technology. b. whether regulatory responses should be technologically neutral, or do some aspects of AI require specific regulation? 

10. How should court and tribunal guidelines align with AI regulation by the Australian Government? 

Chapter 6: Principles for responsible and fair use of AI in courts and tribunals 

11. Are the principles listed in this chapter appropriate to guide the use of AI in Victorian courts and tribunals? What other principles might be considered? 

12. Are principles sufficient, or are guidelines or other regulatory responses also required? 

13. What regulatory tools, including guidelines, could be used to implement these high- level principles in Victoria’s courts and tribunals? 

14. How can the use of AI by courts and tribunals be regulated without interfering with courts’ independence, and what risks should be considered? 

15. Is it appropriate to have varying levels of transparency and disclosure depending on the use of AI by courts and tribunals? (For example, use by administrative staff compared with judicial officers.) 

16. Who should be able to contest an AI decision, and when? Is the capacity to contest necessary for decisions made by court administration staff, or only judicial decisions? Consider how courts and tribunals can ensure sufficient information is available to enable decisions to be contested. 

Chapter 7: AI in courts and tribunals: current laws and regulation 

17. Building on Table 7, are other statutes or regulations relevant to the safe use of AI in Victorian courts and tribunals? 

18. Are there legislative or regulatory gaps or barriers where reform is needed for the safe use of AI in courts and tribunals? 

19. What, if any, changes to legislation, rules or processes are necessary to enable courts and tribunals to: a. safely use AI b. consider evidence in relation to AI c. implement human rights principles (Should there be a human rights impact assessment of any AI use in courts and tribunals?) d. align AI use with privacy responsibilities? 

20. How can changes be achieved while maintaining appropriate flexibility? 

21. Is there a need to strengthen professional obligations to manage risks relating to AI? If so, what changes might be required to the Legal Profession Uniform Law, Civil Procedure Act or regulations?

Chapter 8: Developing guidelines for the use of AI in Victoria’s courts and tribunals 

Guidelines for court and tribunal users

22. Should guidelines be developed for Victorian court and tribunal users relating to the use of AI? 

23. Should guidelines require disclosure of AI use? If so, who should it apply to: a. legal professionals b. expert witnesses c. the public (including self-represented litigants and witnesses)? 

24. What are the benefits and risks of disclosure? If mandatory, what form should disclosure take? 

25. What is the role for courts in regulating use of AI by legal professionals? What is the role of professional bodies such as the Victorian Legal Services Board and Commissioner, the Law Institute of Victoria and the Bar Association? 

26. Are there other guidelines or practice notes relevant to court users and AI use that should be considered by the Commission? 

Guidelines for courts and tribunals 

27. Should guidelines be developed for the use of AI by Victorian courts and tribunals including for administrative staff, the judiciary and tribunal members? If so, what should they include and who should issue them? 

28. Should there be dedicated guidelines for judicial officeholders? 

29. Are there tools from other jurisdictions you think should be incorporated into guidelines to support Victorian courts and tribunals in their use of AI? If so, what are they? 

30. Should courts and tribunals undertake consultation with the public or affected groups before using AI and/or disclose to court users when and how they use AI? What other mechanisms could courts and tribunals use to promote the accountable and transparent use of AI? 

31. Should there be different guidelines or additional considerations for the use of AI in relation to criminal and civil law matters? 

Assessment framework for courts and tribunals 

32. Should an assessment framework be developed to guide the assessment of the suitability of AI technology in Victorian courts and tribunals? 

33. Does the NSW AI Assurance Framework provide a useful model for Victoria’s courts and tribunals? Why or why not? What other models or guidelines should be considered? 

34. How can risk categories (low, medium and high) be distinguished appropriately? What should be considered high risk? 

35. What potential harms and benefits should an AI assessment framework for Victoria’s courts and tribunals consider? 

Chapter 9: Support for effective use of principles and guidelines about AI 

36. Are there appropriate governance structures in courts and tribunals to support safe use of AI? 

37. What governance tools could be used to support the effective use of AI in courts and tribunals such as: a. an AI register for AI systems used in the justice system? b. accreditation of AI systems? 

38. Who should be responsible for developing and maintaining these systems? 

39. How can education support the safe use of AI in courts and tribunals? 

40. Are there opportunities to improve the current continuing professional development system for legal professionals about AI?

More, alas, Pseudolaw

In R v Ryan [2024] NSWDC 476 the Court considered offences by a self-identified sovereign citizen. 

The judgment states 

 The offender, Peter James Ryan, entered pleas of guilty at Coonamble Local Court on 19 March 2024 to two offences: the offence of Discharge Firearm with intent to resist arrest (sequence 4) pursuant to s33A(2)(a) Crimes Act 1900; and Possess Prohibited Firearm (.22 calibre self-loading rifle) (sequence 7) pursuant to s7(1) Firearms Act 1996. The maximum penalty for each of these offences is 25 years and 14 years imprisonment, with standard non-parole periods of 9 years and 4 years respectively. When sentencing on sequence 7, the offender also asks that a further two offences be taken into account on a Form 1; being two offences of Possess unauthorised firearm pursuant to s7A(1) Firearms Act 1996. If for sentence, the maximum penalty would have been 5 years imprisonment. 

The details of each of these offences, including those listed on the Form 1, are contained in the agreed facts. I have read the full facts and recite key parts. The offending relates to events which unfolded at the offender’s Binnaway property between the offender and police on 2 November 2022. Following attempts to arrest the offender in relation to a matter of intimidation, the offender, whose home was signposted with a plaque declaring it to be “sovereign land”, refused to leave his home and ordered police off his property. The offender stated, “You’re on sovereign ground, you will be neutralised if you fucking hurt me, or try and do anything to me”. When queried as to what he meant by “neutralised” the offender responded, “what the fuck do you think it means”. A twelve-hour siege ensued, during which police negotiators attended to attempt to peacefully resolve the situation. The police had been informed by a friend of the offender that the offender owned firearms. At about 6.30pm the standoff came to a head when four police officers approached the home, with Senior Constable Legge holding a ballistic shield and the other three officers, Senior Constable Churchill, Leading Senior Constable Tomlinson and Senior Constable Brownlee behind him and the shield. They approached the doorway and turned off the power. The offender said, “don’t do it”. From inside the house, the offender shot at police. The ballistic shield was struck causing a small hole roughly in the middle of the shield and a dent and knocking Senior Constable Legge backwards. This conduct supports the principal charge. 

Negotiations continued for a further hour and a half and thereafter the offender exited the property into Police custody. The offender commented “It didn’t have to come to all of this. It was just a comment that everyone makes” and then he referred to having a mental breakdown and it being the anniversary of his son’s death. A search of the home was conducted, during which police located three firearms and rounds of ammunition. Each of the firearms had been rendered safe by the offender. The offender did not hold a licence or permit to possess firearms. 

A .22 long rifle, being a prohibited firearm, supports the offence for sentence. A .303 bolt-action rifle and a .410 single shot shotgun support the offences on the Form 1. The damage to the ballistic shield was consistent with having been caused by the .303 rifle.  ...

The offender’s first adult criminal offending occurred when he was 35 in 1999 and involved personal violence and firearm offences. He has further offending, mostly involving personal violence and firearms. The most serious penalty imposed was a conditional release order in 2021. The possession of unauthorised firearms is of concern given his similar possession for the index offending. He is a person who does not comply with the requirement to be licensed. A submission was made that the risk for further offending was limited as he would not be able to secure a licence and would be subject to a Firearms Prohibition Order. This would ensure he was under scrutiny for firearm possession but could not of itself ensure an inability to access firearms if required. His record, given the nature of previous offending and the association to the index offending, does not entitle him to leniency. 

I observe the offender has not offended whilst on remand. There are no disciplinary violations. This is of particular note given the extended remand period of 23 months. 

... The diagnosis proffered is one of PTSD and prolonged grief disorder. Both are said to have been occasioned after the death of his son. 

Just less than a year before the offending the offender’s son committed suicide. Prior to his death his son had been engaged with government agencies regarding access to his daughter. This further fostered in the offender a distrust of the government. The offender already distrusted the government due to the COVID requirements and other irrational beliefs. 

Some of his irrational beliefs concerned a belief persons intended to poison or kill him. He was involved in a long-standing dispute with his Local Council about rates and his inability to attend in person due to being unvaccinated. 

The offender identified as a sovereign citizen from 2020. This informs the plaque on his gate. However, he adhered to the customs of the Court, and he recognised the right of the Court to sentence. 

By the time the police attended, to attend to a legitimate arrest, the offender was socially isolated and suffering mental health issues. The case notes, tendered by both the prosecution and the defence, contain an insight into his disturbed thought processes. The indicia of disorder presents as diminishing with time. In the tendered psychological report, it is stated that he retains little interest in social interactions. 

The earlier case notes include an opinion of paranoia and persecutory beliefs and a delusional disorder. Most of the beliefs are focussed on the government. In June 2023 he still referred to his intention to neutralise the authorities if they entered his land: Exhibit D, p3. By July 2023 a doctor excluded delusional disorder. The doctor noted continued sovereign beliefs were not delusional. 

... The defence submitted the offender’s mental health has a direct bearing upon his moral culpability. It is submitted the operating factors include the contemporaneity to the death of his son, the circumstances surrounding and informing his distrust of government, his sovereign citizen beliefs and that he felt threatened when police attended including a belief the police would kill him and was in a heightened emotional state. It is further submitted that the trauma and grief, the distrust and paranoia and the social isolation inform the offending. In combination, these are said to lessen the offender’s moral culpability. I accept that his mental health issues were operating at the time of the offending and inform his conduct on the day leading up to his offending. I accept they operate to moderate his moral culpability. 

... General deterrence is of significance when sentencing for any firearm offence and more so one involving a weapon being discharged. Of even greater significance is when the offence involves that firearm being discharged at a member of the Police Service. 

The offender still maintains his sovereign beliefs. I accept the submission advanced on his behalf that it is non-mainstream but not akin to a terrorist organisation. It is however a belief system that caused issues for the offender in his interaction with others and endorsed irrational thoughts. The offender has not demonstrated remorse or real insight into his offending and what precipitated it. I consider personal deterrence has a continuing role to play.

In PH v State of South Australia [2024] SASC 113 concerning a writ of certiorari setting aside the decision of the Parole Board that PH be liable to serve the balance of his term of imprisonment the Court states. 

 ... On 22 November 2022, the applicant was sentenced to two years and four months imprisonment, with a non-parole period of 14 months for four firearms offences. ... 

On 16 September 2021, police entered and searched a property at Lonsdale. The property was owned by a company of which, at that time, the applicant was the director, secretary and shareholder. The property comprised of 12 acres and a number of transportable homes, shipping containers and an Atco transportable hut were located on it. The applicant lived in the Atco transportable hut. In the applicant’s bedroom, inside a piano, police located various firearms and ammunition. At that time the applicant did not hold a firearms licence and the firearms were unregistered. 

Although the applicant pleaded guilty, there was a factual dispute about how and when the firearms and ammunition came to be located inside of the piano. The applicant gave evidence and the sentencing Judge rejected the applicant’s account. 

At the time of sentencing, the Judge discussed the applicant’s affiliation with a group called the Commonwealth Justice Assembly. He said:[2] You are what could be called the leader of a group known as the Commonwealth Justice Assembly which promotes a sovereign citizen ideology. The property on which the firearms and ammunition were located was used as the Assembly headquarters. The Assembly has a large number of members and you say up to about 100 people attend at the Lonsdale property for meetings each weekend. ... 

... On 27/05/23 [the applicant] attended Christies Beach Police Station to report a breach of Intervention Order by [JM] (associate of Commonwealth Justice Assembly). [The applicant] has provided a signed affidavit to Police stating on 27/05/23 he attended the immediate vicinity of [the Lonsdale Property] (which is the former meeting place for Commonwealth Justice Assembly and residential address of [JM]) in order to serve an illegitimate summons which he had created and is not legally binding. [The applicant] was allegedly approached and threatened by [JM] in the street, which [the applicant] reports is in breach of an active Intervention Order. [The applicant] had earlier contacted the police call centre and requested a Standby breach of Peace to serve the summons at this address. It has since been established this ‘summons’ is illegitimate and would have amounted to an unnecessary waste of Police resources. 

[The applicant] attempts to serve an illegitimate summons are deliberately provocative and may amount to a breach of his parole, by failing to keep the peace towards any person. 

[The applicant’s] attendance in the immediate vicinity of [the Lonsdale Property] which is occupied by [JM] and former meeting place for Commonwealth Justice Assembly which is frequented by members/associates. This also may amount to a breach in respect to attempting to contacting any member or associate, given his intent to serve an illegitimate summons and the interaction he had with [JM]. 

... On 7 June 2023, the Parole Board noted the submissions that they had received to date and resolved that the applicant was to remain in custody awaiting an interview on 18 July 2023. 

The applicant was interviewed by the Parole Board on 1 August 2023. Mr Mercer was present via AVL for the interview. A number of topics were canvassed in the interview. These included:

The applicant’s diabetes and the medical reasons that prevented him from providing a urine sample. 

The background to and reason for the applicant attending at the Lonsdale address. 

The circumstances in which the applicant came to be in contact with JM. 

The applicant’s denials that he in any way wanted to contact JM. 

The suggestion that for many years the police have had concerns that the applicant holds an anti-government and anti-law enforcement attitude which has resulted in him stockpiling firearms and ammunition (which was denied by the applicant). 

The applicant’s plan to try and create 100 jobs in South Australia. 

The applicant’s civil action in the Magistrates Court. 

Whether the applicant has had any psychiatric or psychological treatment. 

Suggestions made by the Presiding Member that some of the applicant’s belief system were not based in reality and the issues that this may pose for the applicant moving on into the future. 

The circumstances of the firearms offences, about which the applicant maintained the version rejected by the sentencing Judge. 

The applicant’s previous involvement in the Commonwealth Justice Assembly and the role of that group. 

The suggestion by the Presiding Member that the applicant had not been engaging with his Community Corrections Officer. 

As a result of the interview, the Parole Board raised concerns with respect to the applicant’s mental health. On 2 August 2023, the Parole Board determined that prior to making a determination on the breaches, they would require a psychiatric assessment of the applicant and his level of risk if released into the community.? 

... It is apparent from the various materials before me, that one of the applicant’s greatest criminogenic risk factors is his ongoing involvement in, or association with, the Commonwealth Justice Assembly. It was in the context of his role in that organisation that the applicant had committed the firearms offences. 

In 2020, the applicant was diagnosed with Persistent Delusional Disorder. His involvement with Community Mental Health Services came about after he wrote several letters to Parliament. At that time, the applicant displayed delusional conspiracy theories, including alleging that the legal system was corrupt as it was run by Freemasons. 

In addition, the applicant has a history of being hostile, irritable and belligerent to mental health clinicians and the police. 

In a Parole Board Report prepared in January 2023 it was observed:

Furthermore, [the applicant] is widely considered a cult-type leader expressing his sovereign citizen ’s beliefs. [The applicant] appears to not be a violent person but has demonstrated the ability to groom and manipulate people. In prison, there were concerns that he was attempting to recruit prison staff to his political organisation at the Adelaide Remand Centre. Furthermore, [the applicant] described himself as an influential person in prison, assisting other prisoners in writing submissions to the Parole Board and making legal challenges within the court system.

Against that backdrop it was previously reported that the applicant was the leader of the Commonwealth Justice Assembly which, at its height, boasted over 2,000 members. The Commonwealth Justice Assembly was known to promote sovereign citizen ideology. The applicant told DCS authorities that he wanted to return to the political party when released from prison. He denied that it was a cult or terrorist organisation, suggesting instead that it was committed to obtaining justice for all Australians. 

In interviewing the applicant for the December 2023 psychiatric report, Dr Jesudason raised the topic of the applicant’s involvement in the Commonwealth Justice Assembly. The applicant described them as a community based group who “try to help people out with justice matters”. Dr Jesudason described the applicant as becoming evasive when asked about the ethos of the group and who their founding members were. The applicant acknowledged that the group would meet regularly on his Lonsdale property and that he did not charge money for his services. The applicant claimed that at one point there were 9,000 members but said that it had closed down since he was imprisoned. 

Dr Jesudason expressed the view that the applicant appeared to underplay his belief system however “there was evidence of ongoing fixed beliefs around a political organisation he likely founded (CJA) as well as beliefs surrounding the management of his legal status that fall into the realm of previously documented anti-government/anti-authoritarian views”. 

Dr Jesudason identified a number of matters that complicated the applicant’s situation. She said:

What complicates [the applicant’s] case is that his delusional belief systems can be increasingly interpreted as cultural norms, given the current political context. Indeed, [the applicant] has had mental health assessments where members of the CJA have been present and behaved in a similar manner as him, to the same clinicians.

In Wells v Queensland Police Service [2024] QDC 38  the judgment states

... when being called upon to present her defence, the appellant proceeded to make submissions in terms which have been recognised as typical of a particular type of pseudolaw commonly presented to the courts by unqualified persons, often identifying as adherents to “sovereign citizen” ideas: see Young, Hobbs and McIntyre, “The growth of pseudolaw and sovereign citizens in Aotearoa New Zealand courts” [2023] NZLJ 6; “A Kind of Magic: The Origins and Culture of ‘Pseudolaw’”, a paper delivered to the Queensland Magistrates’ State Conference 2022 on 26 May 2022 by His Honour Cash KC; R v Sweet [2021] QDC 216. They included assertions along the lines of the “strawman” argument often presented by such litigants. 

[5] A particular focus was put upon something which was referred to as the “12 presumptions of Roman law.” The appellant challenged the Magistrate that she openly rebuked, rejected and rebutted all 12 presumptions of Roman law and provided further detailed submissions as to those so-called presumptions of “Roman law Canon 3228”. The submissions were, I expect, to the Magistrate, and remain so to me, baffling. I know of no “Roman law Canon 3228” which is part of the law of Queensland. The asserted rebuttal, in its terms, did not seem to, in any way, go towards the merits of the charge before the Court. At the end of the day, I am left wondering what it all meant. 

[6] Ultimately, the learned Magistrate was satisfied beyond reasonable doubt, on the basis of the evidentiary certificates and the rejection of the defendant’s arguments, insofar as the learned Magistrate was able to articulate them, of the guilt of the appellant of the offence. He fined her the penalty of $183 for the traffic infringement and ordered that she pay the costs of the summons of $107.95; therefore, a total of $290.95. 

[7] The appellant filed a notice of appeal in this Court pursuant to section 222 of the Justices Act 1886 against her conviction. The ground of appeal was stated as “The Magistrate refused to accept my position as executor and beneficiary”. An outline of submissions filed on 23 March 2023 stated as follows:

My name is Amy and I am a living woman, of sound mind, of god and from nature. I am the beneficiary and executor of the (AMY JANE WELLS) TRUST, which was created through the birth registration process on (6th October 1976). I am appealing the decision made by the Magistrate MAG-00132878/22(6) in the Beenleigh Magistrates Court on 27th January 2023 because: 

1/ He refused to accept my position as beneficiary and executor. 

2/ I have been governed without my consent. 

3/ I formally challenged and rebutted the 12 Presumptions of Roman Law (Canon 3228) via an Affidavit, on the record. They were un-rebutted on the record, on the record and the Magistrate continued to proceed regardless. I did this also at the review mention. 

4/ From The Twelve Presumptions Of Roman Law – CANON 3228: Presumption Three – The Presumption of Public Oath is that; All members of the Private Bar Guild, ACTING in the capacity of Public Officials, who have sworn a solemn oath, remain bound by that oath and therefore, bound to serve honestly, impartially and fairly, as dictated by their oath Unless openly challenged and demanded, the PRESUMPTION stands that the Private Bar Guild members have functioned under their public oath, in contradiction to their guild oath. IF CHALLENGED – such individuals MUST recuse themselves as having a conflict of interest and cannot possibly stand under their public oath. 

5/ I rebutted (challenged) the presumption of Public Oath – the third of the Twelve Presumptions of Law. I asked the Magistrate on the record, “To whom do you swear your oath to? The Private Bar Guild or an Oath of Public Office?” To which he replied that he had never heard of that and that he swore his oath to the Queen? So he did not prove me wrong, therefore, it is a conflict of interest and grounds for dismissal of this case, on the grounds that fraud has been perpetrated on the Court, myself and this case. 

[8] On the hearing of the appeal, the appellant has continued to rely upon her argument as to the 12 Presumptions of Roman law Canon 3228. As mentioned earlier, I find this argument perplexing and legally incoherent. Although I do not pretend to fully understand the argument, I am quite satisfied that it is legal nonsense and provides no possible grounds for allowing an appeal against her conviction. The other, more familiar, pseudolegal arguments as to the “strawman” personality, are the arguments that the appellant has not consented to the government or legislative authority, or that there is no contract demonstrating consent, such that she is not subject to the traffic law is obviously devoid of any merit and provide no possible ground of appeal against conviction. 

[9] The appellant also made submissions in a somewhat scattergun approach as to various reasons why the legislation passed by the Commonwealth and State parliaments is invalid, mostly familiar from previous pseudolegal litigation of this type, all clearly untenable and devoid of merit. I see no reason why further time of this Court should be wasted by dealing with any of those untenable arguments in any detail. Merely stating the terms of such arguments would be to underline their lack of merit. 

[10] The appellant appeared to mount some attack upon the jurisdiction of this Court too, but I am not at all clear how that would have assisted the appellant. In any event, she presented no argument of any legal coherence as to why this Court lacked jurisdiction to hear what her appeal was, calling upon the jurisdiction of this Court. 

[11] The appellant made submissions as to an apparent lack of impartiality of myself in hearing the appeal and assertions as to an abuse of process. Such submissions were entirely devoid of merit. 

[12] The appellant made submissions that she had made a “Calderbank offer” to the respondent to settle the matter, which, by operation of the “postal acceptance rule,” had either compromised the appeal or precluded the ability of the respondent to obtain any judgment in excess of such offer. It is, of course, trite to say that parties to an appeal of this type cannot compromise such. Even if parties make joint submissions as to an outcome, it is still a matter for the Court as to what orders it makes. In this case, insofar as the respondent is concerned, there has been no compromise on the matter. The appellant’s submissions to the contrary are devoid of merit. 

[13] Ultimately, the appellant made no submissions towards the merits of the appea l....   

[17] There is no reason why the appellant should not pay the costs sought by the respondent, having chosen to litigate an appeal that was totally devoid of any merit. 

[18] It is most unfortunate that the deluded and untenable pseudolegal arguments contended by the appellant appear to have been adopted by her, whether upon her own part or the advice of others. Her unfortunate decision to defend the charge in the Magistrates Court on the basis of such deluded ideas and to appeal the decision of the learned Magistrate in this Court has resulted in a modest traffic fine of $183 escalating to a financial burden more than 10 times as much.

In Nikolajuk v Commissioner of Police [2024] QDC 96 the appellant had been convicted of exceeding the speed limit after a trial in the Magistrates Court. The judgment states 'at first instance and on appeal the self-represented appellant made nonsensical pseudolegal submissions totally devoid of merit'. 

...  [3] I have available to me a transcript of the proceedings in the Magistrates Court on 7 March 2024 and a copy of all the exhibits admitted during the course of the trial. I have reviewed all that material. [4] At the commencement of the trial, the defendant declined to enter a plea of guilty or not guilty, but stated that he did not commit the crime. Accordingly, the learned Magistrate proceeded on the basis that the defendant was pleading not guilty. After having rejected an opening submission by the self-represented defendant that the police had no authority to charge him with any offence, the learned Magistrate offered the defendant an adjournment to consider his position or obtain legal advice. The defendant declined such opportunity. The defendant instead made further submissions why the Magistrates Court lacked jurisdiction over him and submitted that there was a constitutional matter that required notice to the Attorneys-General pursuant to section 78B of the Judiciary Act 1903 (Cth). The defendant submitted that the fact that the police and court documents capitalised his name had some significance and made some submissions along the lines of the “strawman” theory often presented by pseudolegal litigants. ... 

 [11] The arguments advanced by the defendant, both at first instance and on appeal, are typical of a particular type of pseudolaw commonly presented to the courts by unqualified persons. Although the defendant disavows the label “sovereign citizen” and reliance upon the “strawman” theory, his submissions are such that are commonly presented by persons identifying as adherence to “sovereign citizen” ideas, including assertions along the lines of the strawman argument often presented by such litigants. 

[12] The notice of appeal sets out grounds of appeal, which will be dealt with shortly. The appellant has also filed extensive written submissions by way of an outline of argument numbering more than 60 pages and an addendum outline of submissions numbering 22 pages. I have had regard to all the contents of that material as well as some further documents that were admitted as an exhibit on the appeal. The appellant has also made extensive oral submissions repetitive of those matters in his written material. I will deal with the grounds of appeal in order. 

[13] 1. The decision-maker man acting as Magistrate Lance Randale acting in his foreign jurisdiction, did not have the authority or proper jurisdiction to make the decision to enter plea, run the case using his own opinions and convict and enter the order. The decision-maker man acting as Magistrate Lance Rundle breached the rules of natural justice. 

There is no discretion to ignore lack of jurisdiction. As already noted, upon the refusal of the appellant to enter a plea of guilty or not guilty, it was quite proper for the learned Magistrate to proceed on the basis that the appellant was pleading not guilty to the offence. The Magistrate was quite entitled to find on the evidence placed before him that the charge was proved beyond reasonable doubt. He did not lack any authority or jurisdiction to hear and determine the charge, which was properly within the jurisdiction of the Magistrates Court. The learned Magistrate was at pains to explain the procedure and applicable law to the appellant and offered him opportunities for an adjournment to seek legal advice. There was no denial of procedural fairness. This ground of appeal is not made out. 

[14] 2. The decision-maker man acting as Magistrate Lance Randale involved an improper use of power and committed Treason by siting (sic) in Magistrate Court with wrong linage (sic) of Authority pretending that he is the Officer of the lawful Crown working for foreign governments and political subdivisions of AUSTRALIA, Registered Corporations Washington DC and held to Uniform Commercial Code of United States District of Columbia. 

The ground of appeal need only be stated to demonstrate that it is utter nonsense, and no further time of this Court will be spent in dealing with it. 

[15] 3. The decision-maker man acting as Magistrate Lance Randale committed Violation of the Rights recognised in international treaties. An implied limit on executive processes. International Treaty is cited here as a defence. Declaration of Independence and self determination is attached to this Document as exhibit 1 

This ground of appeal, as with the others, is further developed in the material filed by the appellant and in his oral submissions. It is entirely without merit and deserves no further consideration. 

[16] 4. Where a court failed to observe safeguards, it amounts to denial of due process of law, Magistrate Lance Randale in his court is deprived of juris. 

I have already rejected an allegation of a denial of procedural fairness and the submission that the Magistrates Court lacked jurisdiction. This ground of appeal is without merit. 

[17] 5. A decision or judgment rendered by a court without personal jurisdiction is void. It is a nullity. The court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well-established law that a void order can be challenged in any court. 

This ground of appeal adds nothing further to the submissions that the Court lacked jurisdiction to hear the charge and deserves no further consideration. 

[18] 6. Refusing to consider and rule on my 4 motions, that is qualified as gross misconduct in public office and due process violation. 

This ground of appeal refers to four documents that were admitted as exhibits during the course of the trial and were, as stated by the learned Magistrate, considered by him. They consisted of untenable pseudolegal contentions which were bound to be rejected by a Court, and the lack of any formal ruling upon them is quite understandable. It certainly does not amount to any error by the Magistrate and certainly does not amount to misconduct in public office or “due process violation”. 

[19] 7. The decision was in some other way unlawful. All this giving rise to an apprehension of bias; Magistrate refused to accept any evidence from me. I ask man acting as Magistrate Patrick Murphy and on second visit Magistrate John Costanzo then on mt (sic) third visit Magistrate Annette Hennessy and Magistrate Lance Randale to consider my 4 Motions and rule up on them. They did not do that. (all motions and documents are in Magistrate files) The obligation of the Magistrates will, in some cases, include informing the accused of the operation of Evidence and the right of the accused to request a direction on evidence that may be unreliable. Helping the Police Prosecution by allowing them not to produce most vital evidence I ask for. I needed any information that is necessary to ensure a fair trial, I was dented (sic) this on my 4 visits in Pine Rivers Court. 

The Magistrate informed the defendant of his right to give or call evidence. The appellant declined that opportunity. As to appearances before prior Magistrates, none of the events on those earlier hearings are relevant to an appeal against the conviction. I have already noted, in considering ground 6, the assertion that the learned trial Magistrate was required to rule upon such motions. As earlier stated, the learned trial Magistrate did inform the accused of such matters necessary to ensure that he was adequately informed of his rights. It is apparent from a perusal of the record that the assertion of apprehended bias is groundless. 

[20] 8. Magistrate Lance Randale refused to consider Judiciary Act 1903 – Sect 78B on 7nd March 2024. I rise quiet (sic) number of times Constitutional challenge and Mr, Lance Randale compliantly disregarded this with silence (3 times) instead Mr, Lance Randle want to talk about Straw-man theory whatever that is, another opinion he want to hold to derail justice further and further giving prosecution more cover for they (sic) lack of Lawful Authority under the Crown. That is Due process violation. 

A constitutional issue does not arise for the purposes of section 78B of the Judiciary Act 1903 (Cth) merely because a party asserts that it does. If the alleged “constitutional issue” is unarguable, there is in truth no constitutional issue at all. There was, in fact, no arguable constitutional matter requiring any notice pursuant to section 78B of the Judiciary Act 1903 (Cth), and no error was demonstrated by the Magistrate continuing to hear and determine the charge without offering the appellant a further opportunity of an adjournment for that purpose. The other assertions in this ground of appeal as to lack of authority of the police to prosecute the appellant have already been dealt with in dealing with the earlier grounds. 

[21] In oral submissions, the appellant further submitted that the learned trial Magistrate was biased and assisting the prosecution. A perusal of the record demonstrates that there is no basis for such an assertion. 

[22] The appellant complains about the effects of appearances before the Magistrates Court upon his health because of a spinal injury. Such submission is irrelevant to the merits of the appeal. 

[23] The appellant continues to assert, as in his written material, that he is not bound by any statutory law because all statutory law is invalid. Such argument is so clearly untenable and contrary to longstanding authority that it does not require further elucidation. 

[24] Likewise, the appellant’s assertion that he is not to be held responsible for any actions as a driver of a motor vehicle unless he injures another person is clearly untenable. 

[25] The submissions by the appellant regarding the significance of capitalisation of his name in police and court documents are irrelevant to the merits of the appeal. 

[26] None of the submissions by the appellant, either in writing or orally, address the merits of his conviction of the offence.