Vilification

The New South Wales Law Reform Commission report on Serious racial and religious vilification addresses s 93Z of the Crimes Act 1900 (NSW). The Commission states 

1.3 On 14 February 2024, the NSW Attorney General asked us to expeditiously review and report on the effectiveness of s 93Z of the Crimes Act 1900 (NSW) (Crimes Act) in addressing serious racial and religious vilification in NSW. Throughout this review, we heard about the significant impact that hate-based conduct has on individuals, groups and our wider community, historically and at the present time. We acknowledge public interest in the operation of s 93Z has increased following the events in Israel and Gaza on and after 7 October 2023. However, after consulting widely, we have concluded that s 93Z should not be amended in response to the specific issues raised by the terms of reference. 

Based on the concerns raised with us, we recommend the NSW Government consider:

• commissioning a separate review of the effectiveness s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), which enables motivations of hatred and prejudice to be considered as aggravating factors on sentence, and 

• measures to improve the collection of data on hate crimes when offences other than s 93Z are charged for hate-related incidents. ...

It notes 

 concerns expressed by some community groups about the low number of prosecutions under s 93Z. In particular, some were dissatisfied at the criminal justice response to the experiences of individuals and groups when allegations of vilification and hate-based conduct have been reported. 

Data from the Bureau of Crime Statistics and Research (BOCSAR) shows that, as at July 2024, 7 people had charges under s 93Z finalised. Of these people: • 2 were found guilty of an offence under s 93Z, and • 5 had the charge(s) under s 93Z withdrawn. Both convictions were appealed before the District Court. Out of the 2 convictions: • 1 was quashed on 6 February 2024 after a successful appeal, and • 1 was upheld on appeal by the District Court on 7 June 2024 (that is, after this review commenced). There were 2 further convictions in 2020. However, they were annulled because the NSW Police Force commenced prosecutions without the consent of the Director of Public Prosecutions (DPP), which was required at the time. 

The requirement to obtain DPP consent before commencing a prosecution was removed from s 93Z in January 2024. This was intended to streamline the prosecution process. ... 

This report does not make recommendations about the ADA As we explain in chapter 2, s 93Z operates alongside the civil anti-vilification protections in the ADA. These cover other forms of vilification, that is, public acts that incite hatred, serious contempt or severe revulsion on the basis of: • race • transgender status • HIV/AIDS status • homosexuality, or • religious belief, affiliation or activity (or lack of such belief, affiliation or activity). ... 

1.29 A range of organisations argued that the civil and the criminal frameworks should be reviewed holistically, as part of our ongoing review of the ADA. Additionally, some suggested it was premature to consider reforms to s 93Z while the ADA was under review. For instance, the NSW Bar Association suggested that concerns about the operation of the criminal law may be addressed if the civil vilification regime was improved. 

1.30 We acknowledge the relationship between the vilification protections, and there are good arguments for considering them together in a holistic review. However, we are bound by our terms of reference which focus, in this instance, on the criminal law response to serious racial and religious vilification in s 93Z. 

1.31 Accordingly, this report does not consider several issues raised with us in submissions and consultations. These include whether: • the list of protected attributes in either s 93Z or the ADA should be expanded, including to recognise intersectional experiences of vilification21 • the terminology used to describe the attributes currently protected by s 93Z or the ADA should change22 • s 93Z and the ADA should be aligned in terms of the attributes protected and/or the way common elements are defined23 • the civil protection against religious vilification, introduced into the ADA in 2023, could be improved,24 and • the civil complaints mechanisms, and the framework for civil remedies, should be reformed. ... 

1.37 Summary of our key reasons 

Throughout this review, we heard about the significant and increasing effect that vilification has on our community. We outline these concerns in chapter 3. While we acknowledge these concerns, we do not recommend reform to s 93Z to address the issues raised by our terms of reference. 

Section 93Z needs to be understood as part of the broader legal system in which it operates. This includes other, general criminal offences and the civil vilification framework (outlined in chapter 2). Section 93Z has a protective purpose, in that it aims to protect identified groups from threats of or incitements to violence. It also has a symbolic purpose, signifying that the community does not condone this conduct.  There was widespread support for criminalising this conduct in a specific vilification offence, as s 93Z currently does. 

One of the factors that led to this review was the low number of prosecutions under s 93Z. However, the low number does not, of itself, make the case for reform. The fact that an appeal against a conviction under s 93Z has been dismissed demonstrates that the section is operable and has a role to play in appropriate circumstances. 

As we discuss in chapter 3, the low numbers of prosecutions may be due to a range of factors other than the elements of the offence. The factor most often raised with us is that police may prefer to charge general offences. In many cases, these offences are more familiar to police, are easier to prove and have higher maximum penalties. 

There is no clear community consensus, even among religious and multicultural groups, that s 93Z requires reform in response to the issues raised by our terms of reference. Indeed, many cautioned against such reforms.   

Expanded criminalisation comes with risks and is not always the best tool to achieve social policy aims. In particular, we are aware that extending the criminal law can have unintended consequences, especially for those groups already overrepresented in the criminal justice system. Specific concerns were expressed about the potential impact on Aboriginal people. 

There is also a need to be cautious of any reforms that might over-complicate the law and cause further uncertainty or litigation. 

In the following chapters, we detail the responses to the various options suggested in our Options Paper. While views differed in relation to various options, the weight of opinion was that none of these options should be pursued. 

The exception was the potential removal of recklessness as a mental element. Opinions in submissions divided more evenly on this issue. However, this change would not strengthen s 93Z or address the concerns that prompted our review. Finally, as we further explain in chapter 3, the law is only one part of a wider range of measures necessary to promote social cohesion in NSW. Non-legal measures may be more effective in achieving this aim. 

However, we agree that more could be done to improve the visibility and to track the effectiveness of the wider criminal justice response to hate crime. We recommend that the NSW Government consider commissioning a review of the effectiveness of s 21A(2)(h) of the Sentencing Procedure Act. 

We also recommend that the NSW Government consider measures to improve data collection in relation to the prosecution of general offences in response to hate crime.

WHO Genome Guidelines

This month's WHO 'Guidance for human genome data collection, access, use and sharing' notes  

Collecting, accessing, using and sharing genomic data from humans is fraught with ethical, legal, social and cultural issues. Nevertheless, the potential benefits of genomics can only be realized if such data is collected, accessed, used and shared. Consequently, the Science Council report set the promotion of ethical, legal, equitable, and responsible sharing of human genome data as a specific goal. 

This complementary document seeks to achieve that goal by outlining globally applicable principles for collecting, accessing, using and sharing human genome data. These principles serve as a compass to guide policy-makers, researchers, clinicians, and all those involved in human genome data, how they should collect, access, use and share human genome data in ways that advances genomics for individual and population health, protects individual and collective rights and interests, and fosters public trust. Equally, they provide individuals, their families and communities from whom human genome data is accessed with an understanding of the principles upon which their data will be collected, accessed, used and shared. The principles described recognize the importance and value of human genome data. Its use is critically important if we are to realize the promise of genomics for all, but this must be stewarded in such a way that identifies and mitigates the ethical, legal, social and cultural issues that are likely to arise. These principles offer normative guidance and serve as a call to action, urging all of those involved in the use of human genome data to uphold and implement them. 

1. INTRODUCTION 

The science and practice of genomics hold great promise and potential to improve individual and population health for present and future generations. To realize this potential, there is a need to enable the collection, access, use and sharing of human genome data within and across differing health and research sectors. Achieving this requires proactively addressing the ethical, legal, societal and cultural issues. It also requires acknowledging that there are risks associated with both the use of and the non-use of human genome data (1). Such risks must be balanced and mitigated to protect the interests of individuals, families and communities, while at the same time promoting the health and well-being of present and future generations. Efforts to scale up collection, access to, use and sharing of human genome data must recognize the related mistrust that can exist among some individuals, families and communities. This is an ongoing challenge, partly due to continuing exploitative practices, as well as capacity and power imbalances between the different stakeholders (2-4). The diversity of datasets and the under-representation of many populations in existing datasets must also be addressed to help reduce existing inequities, facilitate equitable access to the potential benefits of genomics, and advance global equity in genomics (5). However, addressing diversity and representation must be done in a way that does not perpetuate harms and protects privacy and confidentiality, if scientific quality and global equity in genomics are to be achieved. Consideration must also be given to the trans-generational impact of genomics, as decisions that are made today on collection, access, use and sharing could affect future generations. 

The integration of genomics into health systems requires a data life cycle approach, with guidance enabling collection, access to, use and sharing of human genome data within and across health and research sectors locally, nationally and internationally. To support research and the integration of genomics into health systems – and following the WHO Science Council 2022 report Accelerating access to genomics for global health (6) that recommended the promotion of ethical, legal, equitable and responsible use and sharing of human genome data – WHO has developed this document, which sets out principles for human genome data collection, access, use and sharing. 

2. PURPOSE AND SCOPE 

This document sets out globally applicable and inter-connected principles on the collection, access, use and sharing of human genome data, to promote human health and well-being, including responsible medical advances and scientific research. This document is rooted in human rights law (7-8). It complements and builds upon current laws, policies, frameworks and other guiding documents in this space (including 9-19) and encourages their development where none exist. 

The principles for human genome data collection, access, use and sharing are intended to:

•Promote social and cultural inclusiveness, equity and justice. •Promote trustworthiness within the data lifecycle •Foster integrity and good stewardship •Promote communal and personal benefits •Promote the use of common principles in laws, policies, frameworks and guidelines, within and across countries and contexts. 

In addition, these principles aim to build and strengthen capacity and awareness of individuals, families and communities from whom genome data are collected, to enable them to have more control over their genome data. 

Implementing these principles requires a comprehensive approach throughout the entire data life cycle. They apply to all prospective and retrospective collections of human genome data, and are designed to complement and inspire legal and ethical regulations, frameworks and guidelines at both the national and community- specific level (e.g. research community). WHO recognizes that the implementation of some of these principles may differ for retrospective data (e.g. secondary use of data). 

This document applies only to human genome data. Pathogen genome data (20) and microbiome data do not fall within its remit. 

Human genome data are typically linked with other health information that is critically important to its interpretation. WHO strongly encourages making other health data available with human genome data, subject to approval and mitigating any associated risks that may arise. It may be reasonable to apply these same principles to health data collection, access, use and sharing. Human genome data are obtained from biological samples thus these principles equally apply to them. Biological samples are a finite resource and have cultural significance in many contexts. Collecting, accessing, using, and sharing biological samples therefore may require additional considerations beyond those identified in this document (11). 

This document sets out principles that are intended to set normative standards in collection, access, use and sharing of human genome data. Each principle is followed by recommendations that can be used to guide the application and implementation of these principles in practice. The application of these principles in practice depends on giving careful attention to the health and research context in which human genome data are collected, accessed, used and shared. This will include: specific considerations of the individuals, families and communities providing the data; the purpose of collection, access and use; and the capacity, resources, skills and expertise of those collecting, accessing, using and sharing the data. Equally, national legal and ethical frameworks, as well as social and cultural values, impact the application of these principles. Individual and collective values may vary, giving rise to tensions when implementing these principles. In such circumstances, implementing these principles may require additional and careful deliberation and review. 

These principles are intended to be used by those responsible for governing, overseeing and managing human genome data, as well as stakeholders in the data life cycle within health and research contexts, including individuals, families and communities from whom human genome data originate, and the private sector. 

3. PRINCIPLES FOR HUMAN GENOME COLLECTION, ACCESS, USE AND SHARING 

3.1. To affirm and value the rights of individuals and communities to make decisions 

A commitment to affirm and value the rights and interests of individuals with capacity to make informed decisions about their human genome data throughout the data life cycle. In addition, a commitment to affirm the best interests of, and support for, individuals who do not have the capacity to make decisions for themselves. The use of human genome data has implications beyond the individual, and the relevant views of family members and communities on collection, access to, use and sharing of these data should be taken into account throughout the data life cycle.  

Recommendations: • Human genome data collection, access, use and sharing should be aligned with the needs, preferences and values of individuals, families and communities throughout the data life cycle. Informed consent is a critical component for the ethical use of human genome data and includes the right of and clear mechanism for an individual to withdraw, but there can be justified limitations to this right (e.g. when the results of the use of human genome data have been publicly shared). Any such limitations must be subject to approvals being in place and communicated clearly in advance. Informed consent should be as specific and granular as possible in relation to the potential uses (including by for-profit entities and the potential to share the data to train artificial intelligence), benefits and harms possibly resulting from the use of human genome data, the infrastructure hosting the data (including location and access modalities), and this information must be tailored to respect social and cultural contexts. The most appropriate informed consent model (e.g. specific, broad, tiered or dynamic informed consent) depends upon the individual/local context. Informed consent should be supported by governance frameworks and processes, and individuals should be informed of such processes. In circumstances where it is not possible to identify a specific purpose for human genome data use, informed consent to broad categories of human genome data collection, access, use and sharing may be permissible, provided such collection, access, use and sharing is subject to appropriate safeguards. 

These safeguards include, at a minimum, • • • • • governance frameworks and processes on the re-use of the data that should be informed by community engagement and oversight by a body such as a data access committee. Such a committee should ideally be independent and have responsibility for reviewing access requests and monitoring compliance with conditions set out in the access approval. The broader the informed consent, the more safeguards are required. Individuals, families and communities should have access to clear, transparent, accessible, understandable and ongoing communication about their human genome data collection, access, use and sharing, for those who wish to receive that information. This ongoing communication should, where possible, continue throughout the data life cycle. Individuals and their representative communities should be engaged in the governance and decision-making process regarding collection, access to, use and sharing of human genome data, including the development of appropriate informed consent models and processes. Children, when sufficiently mature to understand what is involved in their participation, should be given the opportunity to affirm the informed consent previously given on their behalf or to withdraw their consent from that point onwards. The right of the child to an open future (i.e. the right to know and the right not to know) should be given due consideration, when collecting, accessing, using and sharing human genome data from children. Measures regarding the protection of marginalized groups and populations, including individuals who are not able to consent or in need of additional support, protection or assistance, should be carefully thought out and implemented. 

3.2. Social justice 

A commitment to uphold individual and collective values and enable collection, access to, use and sharing of human genome data in ways that: (i) promote the highest attainable standard of health, individual and collective well-being; (ii) address the needs of underserved and marginalized individuals, families and communities, and those experiencing greater health burdens; (iii) reduce socioeconomic inequalities and health inequities; (iv) promote global equity; and (v) avoid individual and group discrimination and stigmatization. A commitment to enable access to adequate resources, skills, training, capacity building and capacity- strengthening for researchers, all health care professionals, genomic data administrators, policy-makers, individuals, families, communities and other stakeholders involved in human genome data collection, access, use and sharing. Fulfilment of this commitment requires greater effort in some countries and contexts than others due to existing inequities. 

Recommendations: • The purposes to be served by human genome data collection, access, use and sharing should give due consideration to local health needs and burdens, taking account of the interconnectedness between the local, national and international health ecosystems, which are critical to ensuring the global impact of genomics and improving global equity. 

• Return of results to individuals should be considered in cases where: results are clinically relevant and could be validated; return is feasible within the local health setting; and the return of results is legally and ethically permissible. 
• An approved policy should be developed for the return of individual results and should be in line with the individuals’ informed consent and respect the privacy and confidentiality of the individual. 
• Policies and procedures to protect individuals, families and communities from stigmatization and discrimination that can result from the association between genome data, community membership and health status should be developed in advance and regularly updated. They should be developed in collaboration with communities through meaningful community engagement, particularly those who may be at higher risk of stigmatization and discrimination. 

3.3. Solidarity 

A commitment to stand in solidarity with others by ensuring equitable access to human genome data and fair distribution of its benefits and burdens. This includes data collection, access, use and sharing, within and across communities, and acknowledges the need to address differences in capacity and existing inequities between different individuals, families or communities, countries and regions. 

Recommendations: • • The rights and interests of individuals, families and communities providing human genome data for collection, access, use and sharing should continue to be protected, particularly as efforts to scale up diversity and representation are increased. Decisions on human genome data collection, access, use and sharing should include an assessment of both the potential risks and potential benefits, and commitments to • • facilitating access to any resulting benefits for individuals, families and communities. Commercial interests should not unfairly limit collection, access to, use and sharing of human genome data. Governance processes should be introduced to clearly identify responsibilities and duties for all those involved in the data life cycle, and to specify sanctions in case of non-compliance. These sanctions should be sufficiently serious to act as deterrents to help avoid harm to individuals, families and communities. 

3.4. Equitable access to and benefit from human genome data 

A commitment to achieving equitable collection access to, use and sharing of human genome data and its resulting benefits. This means actively addressing power imbalances and inequities among different stakeholders that may hinder these efforts. A commitment to increase diversity and representation in datasets and decision-makers overseeing collection, access to, use and sharing of human genome data, without contributing to further harm for current and future generations. A commitment to ensuring that individuals, families and communities whose human genome data are collected, accessed, used and shared fairly benefit from its use. 

Recommendations: • Increasing representation of datasets across diverse populations is critical, but inclusion alone is insufficient to achieving equity. It must be paired with the meaningful participation of individuals, families and communities affected by decisions regarding the collection, access, use and sharing on their human genome data. Their involvement in decision-making and the development of governance frameworks is necessary, as differing cultural perspectives • • on human genome data can influence these processes. The equitable sharing of potential risks and benefits across and within communities, including affordable access to resulting benefits, should be considered in advance of collection, access, use and sharing of human genome data, and where possible and needed, informed by community engagement. Capacity building and strengthening should be considered as part of any collection, access to, use and sharing of human genome data. 

3.5. Collaboration, cooperation and partnership A commitment to promote mutually beneficial local, national and international collaboration, cooperation and partnership, including public–private partnership, between those involved in all aspects of human genome data collection, access, use, and sharing, acknowledging that to achieve this will require a rebalancing of power and representation between individuals, families, communities, countries, regions, and other stakeholders. 

Recommendations: • • • • Decisions on governance processes for human genome collection, access, use and sharing should be made collaboratively between all relevant stakeholders. Decisions on collection, access to, use and sharing of human genome data should include discussions on potential risks and benefits to individuals, families and communities from which the human genome data is collected. Policies should clarify that human genome data should be collected, accessed, used and shared with consideration for protecting and confidentiality to improve human health and wellbeing, with ethical safeguards. Ensure the interoperability of platforms to • facilitate collection, access, use and sharing of human genome data between institutions both nationally and internationally, and in the public and private sectors. To promote collaborative decision-making and effective partnerships, efforts should focus on building and strengthening capacity and improving health literacy on genomics and human genome data among all stakeholders. This includes both those contributing their data and those involved in making decisions about its collection, access, use, and sharing. It may incorporate targeted educational initiatives to increase public awareness and understanding of human genome data and the importance of and implications of its collection, access, use and sharing. 

3.6. Stewardship of human genome data A commitment to encourage, enable and sustain ethical, legal, socially and culturally appropriate, and responsible, human genome data collection, access, use and sharing by committing to: (i) develop processes to enable equitable collection, access to, use and sharing of human genome data; (ii) follow the current ethical practices on human genome data; (iii) identify and minimize potential risks in human genome data collection, access, use and sharing; and (iv) respect applicable laws and guidance, including laws on privacy and data protection. 

Recommendations: • Suitable models should be identified that provide equitable access to human genome data. They should be implemented in ways that best protect individuals, families and communities across different contexts. Efforts should be made to mitigate the environmental impact of data processing, storage and use. The collection, access, use and sharing • • of human genome data should align with other current relevant guidance, such as the Findable, Accessible, Interoperable, Reusable (FAIR) principles (21), the Collective Benefit, Authority to Control, Responsibility, Ethics (CARE) principles (22) and the TRUST code (23). Sufficient attribution should be given for the source(s) of human genome data. Timely access to human genome data should be granted, but justified, reasonable and • • • proportionate time delays can be permitted. To ensure that data collection and subsequent access, use, and sharing is in line with cultural and social priorities and considerations, community and stakeholder engagement should be ongoing throughout the data life cycle. Resources required to sustain the use of human genome data (e.g. financing, infrastructure, and personnel) should be considered at the outset of human genome data collection and also reviewed through the data life cycle. Specific guidelines, policies and frameworks should be put in place to ensure that current ethical, legal, privacy, data protection, and security standards and practices are followed, recognising that they may be informed by standards and practices on health data • • generally. This may require the establishment of data governance structures and oversight mechanisms (e.g. data access committees). Such standards and practices may need to evolve over time to reflect advances in technology, the state of the art, and societal norms. Robust data security measures should be implemented to safeguard genetic information from unauthorized access, breaches or misuse. This might include encryption, access controls, regular security audits, and compliance with data protection regulations. Provide training and resources to all those involved in the data life cycle on ethical data handling, privacy protection, and responsible data stewardship practices for human genome data. 

3.7. Transparency 

A commitment to provide openly available and easily accessible information on policies and processes that describe human genome data collection, access, use and sharing, including how the data are to be protected. A commitment to transparency also includes making research findings readily accessible to individuals, families, communities and other stakeholders who shared genomic data. 

Recommendations: • Publicly available policies should describe the criteria for deciding on collection, access to, use and sharing of human genome data, the processes for decision-making, how human genome data is protected, and how such policies were developed. 

• These policies should describe how the right to privacy is protected and who is responsible for ensuring respect to this right throughout the data life cycle. 

 

• Systems and mechanisms should be put in place to enable communication with individuals, families and communities about the use of their human genome data, and related research results. This should include plain language summaries of key insights and education materials and should be openly available to all. Individuals, families and communities should be informed about how they can exercise their rights related to their human genome data. 

3.8. Accountability 

A commitment to establishing processes that enable and promote responsible collection, access, use and sharing of human genome data and that prevents human genome data misuse, accompanied by mechanisms that hold individuals, institutions and other stakeholders accountable for failure to adhere to such processes. 

Actions: • Establish mechanisms that assign roles and responsibilities to those involved throughout the collection, use and sharing of human genome data, including for cases related to negligence or data misuse. Responsible stakeholders should be identified prior to human genome data collection, access, use and sharing. 

 • Mechanisms, including regulations and policies, should be put in place to guard against the misuse of human genome data. This includes limiting collection, access to, use and sharing of human genome data with stakeholders who cannot adequately protect the data. Such policies should, at a minimum, support the right to privacy, prohibit collection, access to, use and sharing of human genome data that stigmatize or discriminate against the individual, their family or their community. They should also prohibit any attempt to re-identify the individual, and prohibit the unauthorized collection, access to, use and sharing of such data. 

 

 • Mechanisms should be put in place to ensure that stakeholders use human genome data in a secured and trustworthy manner, and that those responsible for human genome data misuses are held to account. Human genome data collection, access, use and sharing should be subject to checks on the purpose of data use. Data audit trails and systems for tracking and auditing data collection, access, use and sharing should also be implemented to monitor compliance with data sharing agreements, regulatory requirements, and ethical guidelines.

AI Magic

'The reanimation of pseudoscience in machine learning and its ethical repercussions' by Mel Andrews, Andrew Smart and Abeba Birhane in (2024) 5(9101027) Cell comments 

 Machine learning has a pseudoscience problem. An abundance of ethical issues arising from the use of machine learning (ML)-based technologies—by now, well documented—is inextricably entwined with the systematic epistemic misuse of these tools. We take a recent resurgence of deep learning-assisted physiognomic research as a case study in the relationship between ML-based pseudoscience and attendant social harms—the standard purview of “AI ethics.” In practice, the epistemic and ethical dimensions of ML misuse often arise from shared underlying reasons and are resolvable by the same pathways. Recent use of ML toward the ends of predicting protected attributes from photographs highlights the need for philosophical, historical, and domain-specific perspectives of particular sciences in the prevention and remediation of misused ML. 

The present perspective outlines how epistemically baseless and ethically pernicious paradigms are recycled back into the scientific literature via machine learning (ML) and explores connections between these two dimensions of failure. We hold up the renewed emergence of physiognomic methods, facilitated by ML, as a case study in the harmful repercussions of ML-laundered junk science. A summary and analysis of several such studies is delivered, with attention to the means by which unsound research lends itself to social harms. We explore some of the many factors contributing to poor practice in applied ML. In conclusion, we offer resources for research best practices to developers and practitioners. 

The fields of AI/machine learning (ML) ethics and responsible AI have documented an abundance of social harms enabled by the methods of ML, both actual and potential. Although the topic is comparatively more obscure, critics have also sought to draw attention to the epistemic failings of ML-based systems: failures of functionality and scientific legitimacy.  The connection between the ethicality and epistemic soundness of deployed ML, however, has received scant attention. 

We urge that if the field of AI ethics is to be efficacious in preventing and remediating the social harms flowing from deployed ML systems, it must first grapple with discrepancies between the presumed epistemic operation of these tools and their in-practice ability to achieve those aims. While such an observation is not novel (see Raji et al.), we build on prior work, both in offering an analysis of the issue from a philosophical vantage point and in venturing into the intricacies of in-practice epistemic and ethical misuses of ML systems. We argue that philosophical, historical, and scientific perspectives are necessary in confronting these issues and that ethical and epistemic issues cannot, and should not, be confronted independently. 

A recent surge of deep learning-based studies have claimed the ability to predict unobservable latent character traits, including homosexuality, political ideology, and criminality, from photographs of human faces or other records of outward appearance, including Alam et al., Chandraprabha et al., Hashemi and Hall, Kabir et al., Kachur et al., Kosinski et al.,  Mindoro et al.,  Parde et al.,  Peterson et al.,Mujeeb Rahman and Subashini,  Reece and Danforth,  Su et al.,  Tsuchiya et al.,  Verma et al.,  Vrskova et al.,  and Wang and Kosinski.  In response, government and industry actors have adapted such methods into technologies deployed on the public in the form of products such as Faception,  Hirevue,  and Turnitin.  The term of art for methods endeavoring to predict character traits from human morphology is “physiognomy.” Research in the physiognomic tradition goes back centuries, and while the methods largely fell out of favor with the downfall of the Third Reich, the prospects of ML have renewed scientific interest in the subject. Much like historical forays into this domain, this new wave of physiognomy, resurrected and yet not, apparently, sufficiently rebranded, has faced harsh criticism on both ethical and epistemic grounds. 

This critical response, however, has yet to explore how the confused inferential bases of these studies are responsible for their ethically problematic nature. There are several conclusions we wish to draw from the detailed study of these examples, which we believe extrapolate to the relation between ethical and epistemic issues in deployments of ML at large. (1) No inference is theory neutral. (2) Leaving a theory or hypothesis tacit means it is not held to account for, and its conclusions are not critically evaluated before the results of such work are deployed or acted upon. (3) If a study informs a policy, intervention, or technology that will materially impact human lives—in other words, if a study is at all informative—and it misrepresents the human reality within which it is being deployed, it should be expected that harms to humans will arise. Wrong theories generate wrong interventions. Wrong interventions cause harm. (4) ML models are developed and deployed to extract complex, high-dimensional statistical patterns from large datasets. These complex patterns are typically taken to represent unobservable latent features of the systems from which their training data were drawn. The norms and procedures established for correctly inferring unobservable latent variables from correlational measures differ by scientific field and must be indexed to subject matter. (5) Meta-narratives and cycles of hype surrounding ML, we argue, play a direct role in encouraging errant usage of the tools. When ML tools are proclaimed to deliver false inferences, the outcomes are rarely ethically innocuous. This is true in general but is all the more salient for ML tools deployed in socially sensitive arenas. In bringing to light the connection between pseudoscientific methods in applied ML and the ethical harms they perpetuate, we hope to encourage greater care in the design and usage of such systems. 

Physiognomy resurrected 

“Physiognomy” is “the facility to identify, from the form and constitution of external parts of the human body, chiefly the face, exclusive of all temporary signs of emotions, the constitution of the mind and the heart.” Georg Christoph Lichtenberg, 1778

Recent years have seen an abundance of papers promulgating physiognomic methods resting on ML models.  Work of this ilk is undertaken by academic research groups, private firms, and government agencies. A number of representative instances of each claim to have trained ML classifiers to predict personality, behavioral, or identity characteristics from image, text, voice, or other biometric data. Inferred labels have included race,  sexuality,  mental illness,  criminal propensity, autism, and neuroticism. These studies have predominantly relied on deep learning neural networks (DNNs), sometimes in tandem with more simplistic regression techniques. The practice of wielding the methods of ML toward the (putative) prediction of internal mental states, dispositions, or behavioral propensities based on outwardly visible morphology has been labeled “AI pseudoscience,” “digital phrenology,” “physiognomic AI,” “AI snake oil,” “bogus AI,” and “junk science.” These technologies, however, do not only exist in the abstract—a growing number of companies now market physiognomic capabilities, including the ability to detect academic dishonesty in students and future performance in prospective employees. Remarkably, a single tool marketed to defense contractors boasts of the ability to predict “pedophilia,” “terrorism,” and “bingo playing.” 

In this section, we review the details of several representative examples of physiognomic ML. These case studies are intended to be illustrative of the kinds of reasoning, epistemic foundations, and logic behind research and applications of automated inference from images portraying human likenesses. The studies presented here are intended to be representative of the genre and not a comprehensive overview. 

Inferring sexual orientation 

Utilizing DNNs,  Wang and Kosinski extract features from images of human faces, which they then regress in a supervised learning task against self-reported sexual orientation labels. The classifier achieved 81% and 71% accuracy scores on sexual orientation for male and female subjects, respectively. These findings represent a higher classification accuracy than experimentally determined human judgment. The researchers scraped their data from social media profiles, claiming that training their classifiers on “self-taken, easily accessible digital facial images increases the ecological validity of our results.”  Wang and Kosinski report that the “findings advance our understanding of the origins of sexual orientation.”  The authors of the study explain the ability of their models to discriminate sexual orientation with the claim that “the faces of gay men and lesbians tend to be gender atypical.”  The validation of this hypothesis depended on the training of an additional DNN for gender discrimination. This classifier assigned a likelihood to each face image of being female. The researchers then interpreted this likelihood as a measure of facial femininity, assessing the faces of homosexual-tagged individuals against an average femininity score for heterosexual individuals. The researchers claimed that their results revealed that “the faces of gay men were more feminine and the faces of lesbians were more masculine than those of their respective heterosexual counterparts.”  “The high accuracy of the classifier,” Wang and Kosinski report, “confirmed that much of the information about sexual orientation is retained in fixed facial features.”  The contention of the researchers is that high classification accuracy of sexual orientation from facial features, alongside the evidence they supply for the gender-atypicality of facial morphology, lends support for a particular theory of the genesis of same-sex attraction. The proposed hypothesis is the prenatal hormone theory (PHT) of homosexuality, which proposes that same-sex attraction is a developmental response to atypical testosterone exposure in fetal development. Wang and Kosinski’s results, they claim in their preprint, “provide strong support for the PHT, which argues that same-gender sexual orientation stems from the underexposure of male fetuses and overexposure of female fetuses to prenatal androgens responsible for the sexual differentiation of faces, preferences, and behavior.” 

Personality psychology 

Kachur et al. write that “morphological and social cues in a human face provide signals of human personality and behaviour.” Their stated hypothesis is that a “photograph contains cues about personality that can be extracted using machine learning.” The authors further claim to have “circumvented the reliability limitations of human raters by developing a neural network and training it on a large dataset labelled with self-reported Big Five traits.” Here, deep learning is invoked as a means to obtain objectivity beyond human judgment; however, the training dataset was self-labeled by human raters. The predictive accuracy is interpreted as prima facie evidence for their hypothesis that structural features of human faces contain information of human personality and behavior, and the authors state that their “study presents new evidence confirming that human personality is related to individual facial appearance.” 

In this study, participants self-reported personality characteristics by completing an online questionnaire and then uploaded several photographs, which the researchers then used to construct their training and test datasets. In this example, as in Wang and Kosinski, researchers used the accuracy of their ML model as confirmatory evidence of a joint causal basis for both facial morphology and self-reported personality. Kachur et al. report “several theoretical reasons to expect associations between facial images and personality” including that “genetic background contributes to both face and personality.” Kachur et al. described their results as being indicative of “a potential biological basis” to the discovered association between face images and self-reported personality characteristics. 

“Abnormality” classification 

A recent study constructed a “normal” and “abnormal” human facial expression dataset for the purpose of automatically detecting such abnormal traits as drug addiction, autism, and criminality from facial images. The authors argued that “facial expression reflects our mental activities and provides useful information on human behaviors.” Kabir et al. “developed a combined method of Convolutional Neural Network (CNN) and Recurrent Neural Network (RNN) to classify human abnormalities.” “This approach,” they contend “analyzes the human face and finds the abnormalities, such as Drug addiction, Autism, Criminalism [sic].” 

The researchers utilized images “gathered from the web using the web gathering technique,” although the details of this technique were not further elucidated. It is not made clear within the scope of the manuscript on what basis images were classified as “normal,” “drug addicted,” “autistic,” or “criminal.” The researchers reported a validation accuracy of 89.5% on the four categories. The provenance of the labels is left undisclosed in this study, as are the validation criteria. 

In a similar vein, Vrskova et al. claim to be able to diagnose “abnormal” human activities such as “begging,” “drunkenness,” “robbery,” and “terrorism” from video footage. 

Lie detection 

Automated deception detection has long been of interest to law enforcement, judicial systems, academic institutions, corporations, and governments. A recent study by Tsuchiya et al. utilized facial analysis and ML toward the putative automatic detection of deception for remote job-interview scenarios. The stated purpose of this research was to create an ML-based tool to detect when someone on video call might be lying. Participants in this study were asked to knowingly generate false descriptions of images while being recorded via video and biometric sensors. The researchers then used these data to train an ML model to predict deception-based facial or head movements, pulse rate, or eye movements. The researchers obtained a high accuracy rate using their classifier on the four participants used in the study. As in the other studies reviewed here, the predictive accuracy of the model was taken to substantiate the hypothesis that particular facial features or movements are evidence of unobservable character or behavioral traits—in this instance, deception. 

Criminality detection 

A study by Wu and Zhang purported to “empirically establish the validity of automated face-induced inference on criminality.” The authors trained four canonical ML models on a dataset of ID photographs of Chinese citizens to predict the label of criminality. Wu and Zhang stated that their models detect “criminality based solely on still face images, which is free of any biases of subjective judgments of human observers.”33 The convolutional neural network achieved an accuracy rate of 89.51% at picking out subjects who had been arrested for a crime. Hashemi and Hall claim to have also developed a deep learning-based criminality detector.

Amazon

'Amazon's Quiet Overhaul of the Trademark System' by Jeanne C Fromer and Mark P McKenna in (2025) 113 California Law Review comments

 Amazon's dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention-the Amazon Brand Registry's sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon's Brand Registry serves as a shadow trademark system that dramatically affects businesses' incentives to seek legal registration of their marks. The result has been a dramatic increase in the number of applications to register, which has swamped the U.S. Patent and Trademark Office and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners. 

Amazon's policies also create incentives for businesses to adopt different kinds of marks. Specifically, businesses are more likely to claim descriptive or generic terms, advantageously in stylized form or with accompanying images, and to game the scope limitations that would ordinarily attend registration of those marks. And the same Amazon policies have given rise to the phenomenon of "nonsense marks" - strings of letters and numbers that are not recognizable as words or symbols. In the midst of these systemic changes, Amazon has consolidated its own branding practices, focusing on a few core brands and expanding its use of those marks across a wide range of products. In combination, Amazon's business model and Brand Registry have overhauled the American trademark system, and they have done so with very little public recognition of the consequences of Amazon's business approach. Amazon's impact raises profound questions for trademark law, and for law more generally. There have been powerful players before, and other situations in which private dispute resolution procedures have affected parties' behavior. But Amazon's effect on the legal system is unprecedented in scale and scope. What does (and should) it mean that one private party can so significantly affect a legal system? Do we want the trademark system to have to continually adapt to Amazon's rules? If not, how can the law disable Amazon from having such a profound impact? In this regard, we explore the ways in which Amazon's practices might both help and hurt competition, be harmful to the trademark system, and reshape how we think about trademark law at its foundation. 

Margo Bagley comments 

The Brand Registry Program rewards owners of federally registered trademarks with a cheap and efficient dispute resolution process, which both allows them to object to uses of their mark on the website and also gain a higher priority in search results than if their mark was unregistered. 

Fromer and McKenna identify at least ten impacts of Amazon’s program on the trademark system: Amazon 1) created a shadow trademark system that incentivized applicants to file for federal trademark registrations which 2) swamped, the PTO resulting in 3) significant delays for all applicants (plus a cluttered register) and opportunities for bad actors to 4) fraudulently register “in use” but unregistered marks and then 5) extort the legitimate owners (often small entities relying on traditional trademark priority rules) who would now risk losing the ability to sell goods on Amazon.  

In addition, the authors detail how Amazon’s policies led to a change not just in the magnitude of registrations but also 6) in the kinds of marks being registered, nullifying the effect of historical limitations on the registration of 7) descriptive and generic terms (bad actors can register them with the USPTO as stylized marks/use disclaimers, but Amazon’s Registry only matches text so those legal limitations are ignored) while also giving rise to a wide variety of 8) “nonsense marks” (if you’ve shopped on Amazon, you’ve seen them), strings of unpronounceable letters that have no meaning to consumers but qualify for Amazon’s registry which then favors them in search results. As the authors explain, “when search and purchase are not necessarily done by people who need to remember a brand name, businesses just need something to make the algorithm prefer them. Nonsense will do.” 

And if these externalities to Amazon’s Brand Registry Program were not bad enough, the company has simultaneously 9) elevated its own brands on its site so that one is more likely to see Amazon brands first in searches, even in searches specifically for other brands. This gives Amazon more power vs. third-party brands and 10) “decenters” branding by blunting the traditional source identification and search cost reduction benefits branding is designed to provide.

Cold

'Realising Rights of Nature across and beneath the Southern Ocean' by AD Hemmings in The Polar Journal comments

 If the philosophical, ecological, moral and ethical imperatives for Rights of Nature (RON) in the Antarctic can be argued to be clear, given the limitations and failures of contemporary instrumental environmental management, the modalities of operationalising and applying these to the Antarctic marine environment, commonly understood as the Southern Ocean, are not. Securing progressive environmental policies is very much harder in the marine environment than ashore, everywhere. Structural complications of the existing Antarctic regime structure and the historic and contemporary regional geopolitics add to the challenges in the Southern Ocean, beyond those posed by RON. Classical Antarctic framings cast the Southern Ocean as either the area south of the Antarctic Convergence or as merely the area south of 60° South Latitude. Neither suffices for the purposes of RON. Antarctic biota cross even the Antarctic Convergence. In doing so, they enter spaces subject to extra-Antarctic Treaty System (ATS) international legal regimes including Regional Fisheries Management Organisations abutting the ATS area and/or coastal state jurisdictions in the sub-Antarctic. They also penetrate deep below the levels of the ocean hitherto operationally managed by the ATS. Even ‘within’ the ATS geographical area, the deep seabed and particular taxa (cetaceans) are formally subject to other regimes. The area of relevance for RON is thus neither coterminous with the geographical area nor the jurisdictional competence of the ATS. The relevant geographical area is a ‘Greater Southern Ocean’. The politico-legal context across multiple regimes meaningful to RON is extraordinarily complex and multi-tiered. Advancing a RON discourse across this huge and complex field likely entails a fragmented engagement with discrete jurisdictional and institutional entities, albeit an engagement informed by a unitary and coherent understanding and purpose. Necessary as this is, it will be neither simple nor quick.

Souls

In Nelson v Greenman & Anor [2024] VSC 704 Gobbo AsJ dealt with a range of pseudolaw arguments, including the assertion that one party's soul - and everything else - was outside Victorian Law. The judgment features reference to the sovereign citizen “People’s Court of Terra Australis”. 

The judgment states  

17 On 19 January 2024, Einsiedels solicitors lodged the Caveat over the Land on behalf of the first defendant. 18 On 21 February 2024, Mr Harffey filed a Form 46A Summons and an affidavit in the 2023 Proceeding seeking to be joined as a party to that proceeding as: (a) the ‘Occupant of the office of Special Trustee for the "Douglas, Stephen Ross, Estate Trust A.B.N. 79 773 773 977 and the Koo Wee Rup Ministry, Trust A.B.N. 88 778 945 997” both formally Expressed and Established in 2017’; (b) the ‘rightful trustee of the property concerned’; and (c) ‘Trustees of The Property’. 19 On 27 February 2024, Victoria Police made a second unsuccessful attempt to execute the VCAT Warrant. 20 On the same day, Quigley J, heard the appeal filed by the Bankrupt and his son against the orders of VCAT, including the application by Mr Harffey to be intervene and be joined. 21 On 18 March 2024, Quigley J dismissed the 2023 Proceeding.[1] 22 On 21 March 2024, Victoria Police executed the VCAT Warrant, removed the Bankrupt and his family from the Land, and gave the plaintiff possession. The plaintiff has appointed estate agents and conveyancing lawyers to assist with selling the Land which is currently being offered for sale. In order to proceed with the sale of the Land, the plaintiff seeks the removal of the Caveat. ... The first defendant’s case is expressed in two different sources. First, in the documents provided by his former solicitors, Einsiedels, to the plaintiff’s solicitor in purported support of the Caveat. Second, in the First Defendant’s Affidavit and the other documents submitted in opposition to the application. For the reasons that follow, I have determined that there is no cogent evidence before the Court from which the Court could be satisfied that the first defendant has a prima facie case for the asserted implied, resulting or constructive trust. 

Documents submitted by Einsiedels 

27 Dealing first with the letter from Einsiedels dated 19 February 2024 (‘Einsiedels’ Letter’), the first defendant’s interest in the Land, was expressed in the following terms: The Trust property is a Christian ministry headquarters and is listed as a house of worship. It was the earliest Christian church in Koo Wee Rup in the 1800’s before there was a dedicated church built in the town, and since our client has been at the house they have held Sunday services and prayer meetings in the house with visiting churchgoers. Ther are two trusts, one being the DOUGLAS Stephen Ross Estate Trust and the other being the Koo Wee Rup Ministry Trust. Our client, Paul Spencer Green [sic], has instructed us that their caveatable interest in the property is due to his role as Special Trustee for the DOUGLAS, Stephen Ross, Estate Trust ABN: 79 773 773 977 as shown to you in the first attachment titled “Acceptance of Office - Special Trustee - dated 11.1.2024”. The Special Trustee was formalised by trust deed which included the property at Lot 1 Walker Street, Koo Wee Rup in 2017 and is in possession of the property at present. The Trust is a Life Estate in Fee Simple. The Trust has a caveat on the property. Under the Trusts (Hague Convention) Act 1991 Cwth [sic], whoever holds a title to the property holds it on behalf of the trust. With this in mind, it is our belief that Simon Nelson cannot touch any assets of a religious ministry or church. It is part of exempt property held in a trust by the bankrupt for the benefit of someone else as described in Sect. 116 of the Bankruptcy Act. The “others” described in the Act would be the not for profit, charitable trust organisation, being the Koo Weep Rup Ministry. It is a non-denominational, Christian ministry, operating out of Lot 1 Walker Street, Koo Wee Rup. We also enclose the Certificate of Trust Affirmation. 

28 The ‘Certificate of Trust Affirmation’ was in two parts. The first page, carrying an unidentifiable coat of arms and the words Commonwealth of Australia, was headed ‘Acceptance of Office “Special Trustee”’ and was in the following terms: DOUGLAS, Stephen Ross, Estate Trust Whereas, Paul Greenman, of Berwick in the Original State, Victoria, The Commonwealth of Australia, whom, is known to execute contracts by the Name: Paul Greenman, does hereby accept the Office of Special Trustee for the DOUGLAS, Stephen Ross, Estate Trust - [ABN: 79 773 773 977), this private agreement with trust provisions is in full force and effect as of subscribing hereunto with the authorisation of the Special Trustee. This Trustee further pledges to minister, protect, and preserve The Trust, through prudent exercise of the powers and authorities vested to the Office, as expressed in the Trusts Deed and the limits of the Office set by The Board of Trustee, and acknowledge that I may be removed from the Office by The Board without cause by written notice therefrom. Affirmation: Whereas, this Acceptance of the Office is hereby affirmed by subscribing hereunto, with explicit reservation of all rights, without prejudice to any of those rights, and reserve the right to resign from any position at any time. This Private Contract is entered and executed willingly, knowingly, and voluntarily in good faith and with clean hands. 

29 The second page was a document headed ‘Certificate of Trust Affirmation’ which purportedly recorded the ‘DOUGLAS Stephen Ross, Estate Trust’, a ‘pure express trust’ signed on 16 November 2023 with the settlor named as Stephen Ross Douglas and the Trustee named as Keith-Charles, who the document recorded was ‘known to execute contracts using the name Keith Charles Harffey’. 

30 A further document headed ‘Trust Schedule’ was also attached which recorded the name of the trust as ‘Douglas, Stephen Ross, Estate Trust – [ABN 79 773 773 977]’, the settlor as Mr Stephen Ross Douglas, the special trustee as Mr Keith Charles Harffey and the type of trust being a ‘Hybrid Trust: Discretionary Trust and a non-fixed Unit Trust’. The document further recorded that the founding date for the trust was 2 October 2019 and the applicable law was ‘King James Version Bible (A.D. 1611)’. 

31 Even the most cursory review of the documents enclosed with Einsiedels’ Letter, leaves no doubt that the documents are no more than a jumble of legal gibberish. That those documents were conveyed by a solicitor on the basis that they recorded either proper and competent instructions or a trust said to support a caveatable interest in the Land, which Caveat the solicitor then lodged, is nothing short of staggering. 

32 The many and obvious shortcomings with the documents enclosed with Einsiedels’ Letter were addressed in a letter sent by the plaintiff’s solicitor on 6 March 2024. The plaintiff’s letter sought the removal of the Caveat within seven days failing which the plaintiff indicated that an application would be made to Court for its removal together with a claim for indemnity costs. There was no response to that letter. .... Einsiedels were not present before the Court at the hearing of the application in order to provide an explanation for their conduct which I have identified. Documents submitted by the first defendant 

35 In addition to those documents contained in Einsiedels’ Letter, the First Defendant’s Affidavit set out a myriad of further assertions which appeared to mirror many of those which appeared in documents previously provided to the plaintiff. 

36 The First Defendant’s Affidavit, which was 34 pages of nonsensical quasi‑legal concepts and phrases, Bible quotes and references to organisations and entities with unconventional titles or descriptions, urged the Court to draw the conclusion that the first defendant had created legal entitlements or protections which would defeat the plaintiff’s entitlement to possession of the Land. 

37 Contained in the First Defendant’s Affidavit are concepts which have been comprehensively dismissed by other Courts or which are so absurd so as to have no relevance to first defendant’s prima facie case. 

38 Without being exhaustive, and only to demonstrate the absurdity of the arguments advanced by the first defendant, I note that his affidavit contained 34 pages of the following (largely incomprehensible and unintelligible) types of statements: On the date known “24th July 2024'” that Statement and Declaration of Truth/'”Affidavit” (Annexure “A”) was served on, amongst others, the living man known as “The Hon. Anthony Carbines MP”, acting as “MINISTER FOR POLICE”, the living man known as “Shane Patton APM”, acting as “Chief Commissioner”, POLICE DEPARTMENT (VIC), the living woman known as “The Hon. Jaclyn Symes MLC”, acting as “Attorney-General, Leader of the Government in the Legislative Council” “STATE OF VICTORIA-PARLIAMENT OF VICTORIA”, the living woman known as “Her Honour Judge Lisa Hannan”, acting as “Chief Magistrate” Melbourne MAGISTRATES COURT, and ... [11] What is unlawful ought not be entered under the pretext of legality “QUOD-EST­ILLICITUM, PRAETEXU-LEGALITATIS-NON-DEBET-INTROIRl” – (repeated at paragraph [16]) [12] The malicious designs of men must be thwarted “MALITIA-CONSILIA­ HOMINUM-FRUSTRARI-DEBENT” – (repeated at paragraph [17]) ... [14] "72. As the Creator is the giver of all spiritual life and the creator of the living being, and whereas the living being is the creator and giver of life to the paper fiction known as the “person”, “Government”, “Corporation”, “Citizen”, and other non­living transmitting entities of fictional nature, a created fictional paper entity cannot rule over its creator an, as such, the ‘soul’, ‘Greenie’, and the living being we are incarnated into,’Paul Spencer’,of the tribe/family/house/clan “Greenman”, is not, and cannot be, under the jurisdiction of any man-created fiction ; and [sic] ... [20] “Universal Proclamation of Human Rights (UDHR) signed in Paris on 10 December 1948 (General Assembly resolution 217 A). ... [31] “QUOD-EST-ILLICITUM, PRAETEXU-LEGALITATIS-NON-DEBET­ INTROIRI” - What is unlawful ought not be entered under the pretext of legality ... [34] . The ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, renounce, rebut, disassociate and reject that any and all corporate entities masquerading as, or purporting to be, a “government”, including, but not limited to, the following; [35] “STATE OF VICTORIA - PARLIAMENT OF VICTORIA” [ABN 57 505 521 939] [36] and/or all of its/their trading names, and/or departments, and/or all of its employees, has any authority or jurisdiction over us in any way; ... [82] 126. In particular, the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul-Spencer’, of the tribe/family/house/clan “Greenman”, unless we specifically contract, and that written and signed contract can be produced as proof on demand, do not acknowledge or consent that the corporate entity “POLICE DEPARTMENT (VIC)” [ABN 63 446 481 493] and/or all of its trading names, and/or all of its employees, has any authority or jurisdiction over us in any way; ... [89] 173. Any and all ‘”Courts” of “Australia” and/or any of its agents, is/are dismissed from ever assuming the role of “trustee” in any matters concerning the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, and/or any trust accounts, including, but not limited to, “PAUL -SPENCER GREENMAN”, Estate, “PAUL E. GREENMAN”, Estate, “PAUL GREENMAN”, Estate, “GREENMAN, PAUL E.”, Estate, et alia, or any other such “CAPITAL-LETTERED” or lower case variation of such, in any way, including, but not limited to, the use of initials, prefixes, suffixes, titles, appendages, and the like, of/to which We, the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, believe we am/are the “Principal” and “Executive Beneficiary”, and ... [97] 191. Anxiety caused by the actions of the aforementioned “Governments”, corporations, non-living entities and all the members/ employees/”officers” and agents of such, resulting in fear of harm, damage, loss or injury is here now sighted as unliquidable damages, the extent of which is to be determined by a competent assessor of the choosing of the living man “Paul -Spencer’, of the tribe/family/house/ clan “Greenman”; [98] “QUI-NON-NEGARE, ACCIPIT” - He who does not deny, accepts ... [100] The Statement and Declaration of Truth/”Affidavit” (Annexure “A”) has not been challenged nor rebutted; [101] “An-soluto-tabellam-dare-iudicium-in-Commerce” - An unrebutted affidavit becomes the judgment in Commerce ... [127] Notice of Legal Liability [128] This is a Non-Negotiable Self-Executing Contract [129] Any attempt by you, the aforementioned addressee, or any agent of/from any of the following entities: [130] “STATE OF VICTORIA - PARLIAMENT OF VICTORIA” trading as “PARLIAMENT OF VICTORIA” ABN 57 505 521 939 [131] “SUPREME COURT OF VICTORIA” ABN 32 790 228 959 [132] “SUPREME COURT OF VICTORIA PROPERTY LIST” trading name of “SUPREME COURT OF VICTORIA)” [ABN 32 790 228 959] [133] any corporate entity [134] who attempts to act in any unauthorised manner as executor of/for the aforementioned trust accounts administered through this Office of the Executor, will be taken, under this Notice of Legal Liability, and pursuant to Canon 2035, as to agreeing to pay the following remedy; [135] a) for “individuals”, living man or living woman; the remedy of One-Million US Dollars ($1,000,000 USD), or its equivalent, per infraction, payable within twenty­eights [sic] days of service as per the terms and conditions of that invoice, and [136] b) for “corporations”, “body politics” and/or “Government departments”; the remedy of Ten-Million US Dollars ($10,000,000 USD), or its equivalent, per infraction, payable within twenty-eights [sic] days of service as per the terms and conditions of that invoice, ... [27] PENHALLOW V DOANE ADMINISTRATORS (3US 54; 1 L.Ed 57; Dall N54) UNITED STATES SUPREME COURT RULING 1795 No corporation has jurisdiction over a natural man. "In as much as every government is an artificial person, an abstraction and a creature of the mind only, a government can interfere ONLY with artificial persons. The imaginary, having neither actuality nor substance, is foreclosed from creating and attaining parity with the tangible. The legal manifestation of this is that no government, as well as any law, agency, aspect, court, etc, can concern itself with anything other than corporate, artificial persons and the CONTRACTS between them". 

39 For completeness, I note a further document relied upon by the first defendant, namely the ‘Notice of Attendance Notice of Rebuttal of any and all Presumptions of Law - Notice to Principal is Notice to Agent - Notice to Agent is Notice to Principal’ also contained a jumbled mess of references to concept of the ‘Living Man’ together with a variety of legal maxims. Some examples contained in the 80 paragraphs set out in that 11 page document included: [1] I, the living man “Paul-Spencer’, of the family/house/tribe/clan “Greenman”, am recorded as such with The People's Court of Terra Australis PC-LS-2917, and [2] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, act in the belief I am principal and executive beneficiary of the non-living Cestui Qui Vie estate/trust “PAUL SPENCER GREENMAN”, also referred to as “GREENMAN, PAULS.” “Paul GREENMAN” “Mr. Paul GREENMAN” et alia, and [3] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, act in the belief, according to The People's Court of Terra Australis (PC-FN-2916), that I am and the owner of the fictitious names “PAUL SPENCER GREENMAN”, “Paul GREENMAN”, “PAUL S GREENMAN”, “GREENMAN Paul”, et alia, and ... [5] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am not illiterate, and [6] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am no ignorant, and ... [8] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am no lunatic, and ... [12] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am of the belief and comprehension that the corporate entity “SUPREME COURT OF VICTORIA” may only hear Civil claims of disputes of contract in which both/all parties agree and consent to the corporate entity “SUPREMEN [sic] COURT OF VICTORIA” presiding over the matter, and ... [25] That the unchallenged affidavit stands as truth in law; Legal Maxim: “INEXPLICABILIS-LIBELLUS-PRO-VERO-IN­ COMMERCIUM” - AN UNREBUTTED AFFIDAVIT STANDS AS TRUTH IN COMMERCE. (12 Pet. l :25; Heb. 6:13-15;) Claims made in an affidavit, if not rebutted, emerge as the truth of the matter. ... [43] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, being a living man, am Sui Juris ("SUI-JURIS"), Principal and Executive Beneficiary of the non-living Cestui Qui Vie estate/trust “PAUL SPENCER GREENMAN” do not consent, nor agree, to any “Acts”, “Legislation”, “Rules” “Directions”, and/or “Demands”, and ... [57] I, living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, am not a dead entity that is “summonsed” to life via magic or spells, and ... [74] The “Judge/Magistrate/Justice” claiming to preside in the matter “S ECI 2024 04778”” has no right, nor authority, from me, the living man ‘Paul­ Spencer’, of the family/house/tribe/clan “Greenman”, to assume the role of “true” executor and has no right to seek the assistance of police, bailiffs or sheriffs to assert their false claim and have me, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, arrested, detained, fined or forced into a psychiatric evaluation, and ... [79] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, rebut, rebuke and reject any and all presumptions that the matter “S ECI 2024 04778” listed on the date known as “25/10/2024” before the “SUPREME COURT OF VICTORIA ABN 32 790 228 959” is a private business meeting of the Bar Guild, and rebut reject and rebuke any and all presumptions of “guilt”, and 

40 A further document relied on by the first defendant, being the ‘Proclamation of the establishment of Office of the Executor of Paul Spencer Greenman’ similarly contained yet more gibberish relating to the ‘Living Man’ whereby the first defendant purported to proclaim, amongst other matters, that he is: Pursuant to the unchallenged and unrebutted Statement and Declaration of Truth/”Affidavit” of the living man ‘Paul Spencer, biological creation of Bert and Margaret, being of the family “Greenman”, made the date known Twenty-Fourth of June Two-thousand­Twenty-Four (24/06/2024) and served on, amongst others, “Theresa Fairman, Director and Registrar” “REGISTRY OF BIRTHS, DEATHS AND MARRIAGES NSW” on the date known as Ninth of July Two-thousand-Twenty-Four (09/07/2024), and, as such, being of the belief and understanding that I, the living man ‘Paul Spencer, am the sole beneficiary of all trust accounts created by “State” of “NEW SOUTH WALES” from the “BIRTH CERTIFCATE” “REGISTRATION NUMBER 44280/1968”, Barcode numbers 066904720241723409087235/ 06690472024/ 30004479978, Re: “GREENMAN, Paul Spencer” “Date of Birth” 23 March 1968” “Date of Registration” “10 April 1968” , I, the living man ‘Paul Spencer’, biological creation of Bert and Margaret, do proclaim; (a) I, the living man ‘Paul Spencer’, am not “Lost at See/Sea” and (b) I, the living man ‘Paul Spencer’, have the capacity to act as Executor of all associated aforementioned trust accounts, and ... 

41 Finally, at the hearing before me, the first defendant read onto the transcript a document headed ‘Notice of Intervention’ dated 23 October 2024 which was in the following terms consistent with the previous pseudo-legal nonsense the first defendant had submitted: [1] The living man ‘Paul Spencer’, of the family “Greenman” attempted to file an Interlocutory and Affidavit with the “SUPREME COURT of VICTORIA” in coherent English, readable and complete, and [2] The living man ‘Paul Spencer’ of the family “Greenman” has attempted to file an Interlocutory and Affidavit with the “SUPREME COURT of VICTORIA”, and were refused based on format and wrong form, and [3] All of the “SUPREME COURT of VICTORIA” documents and forms contain Glossa, which is Debased Latin rendering them Criminal and Counterfeit, and [4] The “SUPREME COURT of VICTORIA” requires the living man ‘Paul Spencer’, of the family “Greenman”, to commit fraud in order to accept document for filing, and [5] The “RedCrest Online Portal” only permits fictional entities to file, therefore... [6] Agents of the “SUPREME COURT of VICTORIA” have committed personage and barratry, and [7] The grounds unanimously determined, by a jury of the people, 23-0 that The People’s Court of Terra Australis intervene in the matter “S ECI 2024 4778” before the “SUPREME COURT of VICTORIA” for the purpose of ensuring justice and fairness, and judicial processes are adhered to, and [8] This matter is hereby transferred from, and out of, the jurisdiction of the Magistrates/County/District/Supreme Court to The People’s Court of Terra Australia (Australasia) listed for the date known as “Friday, 22nd November 2024” 

42 The ‘Notice of Intervention’ was purportedly signed by both the ‘Attorney-General’ and a ‘Registrar’. During the hearing when I asked the first defendant who had signed the document, he declined to tell me. It is apparent looking at the document that it was not signed by either the Victorian or Commonwealth Attorneys General or by any Registrar or officer of the Supreme Court of Victoria. The document otherwise purported to unilaterally transfer the proceeding and plaintiff’s application from the Supreme Court of Victoria to the ‘People’s Court of Terra Australia (Australasia)’ on 22 November 2024. The proceeding before me was not transferred and is not the subject of a further hearing on 22 November 2024. 

Analysis 

43 Taking it at its highest, the first defendant’s case appears, as set out in his various submissions and in his affidavit, to rely on an argument that the plaintiff has no legal entitlement to possession as legal owner because the Land was legally transferred to a trust and, as trust property, it is immune from being considered as part of the bankrupt estate. 

44 The documents said to be evidence of the trust before me were the subject of consideration by Quigley J in the 2023 Proceeding in which her Honour dismissed the VCAT appeal. 

45 In that proceeding, Mr Harffey sought to advance a similar argument that the Land was the subject of an express trust in his favour. In considering similar alleged trust documents, Quigley J concluded that she was not satisfied that the Bankrupt had made a valid transfer of the legal ownership of the title to the Land to any trust entity, stating that there was no competent evidence before the Court to demonstrate the legal transfer of the Land to any trust entity.[6] Her Honour went on to quote Marchesi v Apostoulou (‘Marchesi’) where Weinberg J considered the law in which equity will recognise the assignment of property without consideration. The question in that case was whether a ‘gift’ to a family trust was ‘perfected’ in accordance with the principles established by the High Court in Corin v Patton.[8] That is, whether the bankrupt did all that was necessary to arm the donee with the capacity to register the titles in the name of the trustee of the trust. 

46 Weinberg J held at paragraph 25 that the position was settled by the High Court in Corrin v Patton quoting Mason CJ and McHugh J:[9] Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of legal title in himself. 

47 I respectfully adopt the analysis of both Quigley J and Weinberg J. The documents supplied by the first defendant to support the Caveat do not establish that the Land is an asset of any trust, whether express, implied, resulting or constructive. The ‘Acceptance of Office – “Special Trustee”’ document simply accepts an appointment as a trustee to an express trust, the details of which are not supplied. The ‘Certificate of Trust Affirmation’ appears to ‘affirm’ a prior trust, rather than prove the establishment of any trust, or the conveyance of the Land to that trust. The attached Trust Schedule does not advance matters. The subsequent documents provided by the first defendant to the Court in addition to his affidavit similarly do nothing to establish that the Land is an asset of any trust, whether express, implied, resulting or constructive. 

48 Further, the trust being contended for is said to have been created in 2017. Critically for the first defendant, there is no evidence showing that the Bankrupt, whilst he was the registered proprietor of the Land, took any steps to create a trust or to gift the Land to any trust. The Bankrupt remained the registered proprietor of the Land until well after, his bankruptcy on 26 September 2019. The plaintiff holds the legal title to the Land by reason of the Bankruptcy Act and has possession by reason of an order made by the Federal Court of Australia on 5 July 2022. 

49 The is no evidence of a transfer being executed, or stamp duty being paid, or the consent of the mortgagee, Australia and New Zealand Banking Group Limited, being sought or obtained, noting that these elements were present in Marchesi and the Court still found that the purported gift of the property in the trust had failed. The documents supplied by Einsiedels on behalf of the first defendant were nothing more than pseudo-legal gibberish. The documents filed by the first defendant with this Court, including his affidavit, are similarly incomprehensible gobbledygook. ... 

 Conduct of the first defendant 

52 Whilst the first defendant’s legal arguments were without any merit, and can all be aptly described as arrant nonsense, it is appropriate nonetheless that I say something further about the documents he filed (including correspondence advanced on his behalf by his former lawyers, Einsiedels) and his submissions at the hearing before me (to the extent that they could be classed as submissions), lest any other Court is required to consider such absurdity in the future. Living Man 53 In Stefan v McLachlan, John Dixon J comprehensively dealt with the fatuous concept of the ‘Living Man’. At paragraphs 23 to 26 his Honour held:

The law recognises a living person as having status in law and any person is, in this sense, a legal person. Conceptually, there may be differences between the legal status of a person and that of an entity that is granted a like legal status, but what ever they might be they have no application on this appeal. In asserting that he is a ‘living man’, the appellant does no more than identify that he is a person, an individual. Every person, every individual, and every entity accorded status as a legal person is subject to the rule of law. There are no exceptions in Australian society. It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law whether its source be the Constitution, statute, or judge made law. No distinction can be made by using an analogue, such as ‘living man’ for ‘person’. There was no legal significance in the informant’s agreement with the appellant’s proposition in cross-examination that he was a ‘living man’. That conclusion was, and remained, blindingly obvious. A like argument was also based on the notion that the living man is created by God and not by the State and the Australian Constitution does not grant legislative power to the Parliament of Australia to affect the rights of the living man. No support can be found for such notions by reference to style guides, as the appellant sought to do, to draw inferences from obscure facts. In this case, the appellant noted that his name was printed on his driver’s licence wholly in capital letters. Such irrelevant matters cannot impugn the jurisdiction of a magistrate under the Road Safety Act. The appellant also advanced a like proposition that seems to have developed some momentum as a ‘sovereign citizen defence’, based in some way on notions of freedom to contract with others, as developed in a commercial context. The defendant contends that a living man is only answerable to those articles of law and legal proceedings to which he or she has consented. The contractual notion that the appellant alluded to has no role in public law in the manner suggested. Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual. There is no contract and nor does the authority of the Parliament to pass such laws come from a sovereign, notwithstanding that the legislative power of the State is vested in the King and the Parliament of Victoria. The ‘consent’ of Victorians to statute law, in the sense in which the appellant used the expression, follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power.

 54 I respectfully adopt the helpful analysis by John Dixon J and reject, in their entirety any submission by the first defendant which relies on concepts of the ‘Living Man’. 

55 I otherwise note that before me, the first defendant sought to class himself as the ‘Living Man’ in order to create a different identify from that of the person named in the Court proceeding as the first defendant. It is not without some degree of irony that, on the one hand, the first defendant sought to rely on the legal protections afforded by reason of lodging the Caveat over the Land in the name of Paul Spencer Greenman but simultaneously sought to divorce himself from that persona when his conduct in lodging the Caveat was subject to challenge. 

56 In Re Coles Supermarkets Australia Pty Ltd,[12] Hetyey AsJ similarly considered the ‘Living Man’ stating (citations omitted):[13] The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence. 

Unilateral agreements 

57 Hetyey AsJ went on to also consider unilateral contracts, a concept advanced by the first defendant who suggested that his alleged interest in the Land would be taken as having been established if certain of his various notices and declarations were not rebuffed within arbitrarily set timeframes. Relevantly, for the purpose of the arguments advanced before me I respectfully adopt his Honour’s observations as follows (citations omitted): It is a fundamental principle of contract law that an offeree’s intention to accept an offer must be clear and unequivocal. However, because silence is almost always equivocal, it will rarely be regarded as acceptance. As the Court of Appeal further explained in Danbol Pty Ltd v Swiss Re International SE: The requirement for acceptance, which must be communicated by the offeree to the offeror, is subject to a number of principles. First, as a general rule, silence cannot constitute acceptance. The rule is primarily designed to protect the offeree from having a contract foisted upon it by preventing the offeror from stipulating that a contract will be created by silence on the part of the offeree. It is a reflection of the requirement for mutual assent. The Court of Appeal further observed that in the absence of a clearly identified offer and acceptance, it will be difficult for a party to identify mutual assent to a binding legal relationship and its terms. 

Other submissions 

58 During the hearing before me, the first defendant refused to give his appearance. Rather he repeatedly stated that ‘I am Paul Spencer, acting in the capacity of the officer of executor for the so-called defendant 1’,[15] and ‘I’m the occupant of the office of executor for the defendant 1 and I will be heard’.[16] Thereafter, he refused to give his appearance instead repeating loudly ‘permission to come aboard’[17] as though those words carried with them some unique legal meaning, which they do not. Subsequently, five submissions were advanced by the first defendant. 

59 First, he submitted that there was no legal merit in the Court.[18] No further submission was made in this respect. I reject the submission. 

60 Second, he contended that the Supreme Court, all capitals, as the seal is ... with an ABN 32 790 228 959, did not have authority or jurisdiction over, Paul Spencer, the occupant of the office of executor.[19] There is no concept known to the law of ‘the occupant of the office of executor’ such that this Court would not have jurisdiction to hear an application for the removal of a caveat. I reject the submission. 

61 Third, he contended that there was some limit on the Court’s ability to hear the matter until it was determined whether the Court was a public space or a private Bar guild space.[20] This concept also appeared in the various documents filed by the first defendant. This submission is irrelevant to the issues I am required to determine, it lacks any legal merit and is rejected. 

62 Fourth, he contended there was some limit on the Court’s ability to hear the matter until it was determined whether I was a public servant and the source of my power to hear the application.[21] The power of an Associate Judge of this Court to hear and determine an application under s 90(3) of the TLA is not controversial. The source of power for Associate Judges of this Court was comprehensively addressed by Keogh J in Goodenough v State of Victoria.[22] I reject the first defendant’s submission. 

63 Fifth, he had sought to file a ‘Notice of Intention’ the effect of which was, as I understand the submission, to remove jurisdiction from the Supreme Court of Victoria to hear and determine the application and vest the jurisdiction to determine the application with a court called ‘the People’s Court of Terra Australis’ with the submission put in the following terms:[23] One, by the living man Paul Spencer of the Family Greenman attempted to file an interlocutory and an affidavit with the Supreme Court of Victoria, all capitals, in coherent English, readable and complete and two, the living man Paul Spencer of the Family Greenman has attempted to file interlocutory and affidavit with the Supreme Court of Victoria, all capitals, and were refused based on format and wrong form. And three, all of the Supreme Court of Victoria, all capitals, documents and forms containing glosser which is debased Latin rendering them criminal and counterfeit. And four, the Supreme Court of Victoria, all capitals, requires the living man, Paul Spencer of the Family Greenman to commit fraud in order to accept the documents for filing. Five, the RedCrest online portal only permits fictional entities to file. Therefore coercing the living man to commit fraud so as to file documents as the person, which I am not. And six, agents of the Supreme Court of Victoria, all caps, have committed personage and barratry. Seven, the grounds unanimously determined by a jury of the people 23 to zero, 23 for zero against, that the People’s Court of Terra Australis intervene in the matter S ECI 2024 4778 before the Supreme Court of Victoria, all caps, for the purpose of ensuring justice and fairness and judicial process are adhered to. And eight, this matter is hereby transferred from and out of the jurisdiction of the Magistrates’ Court, County Court, District Court, Supreme Court to the People’s Court of Terra Australis for a de novo hearing before the People of Terra Australis, listed for the date known as Friday, 22nd of November 2024. And it is dated, date known as 23rd of October 2024, signed and sealed by Attorney General, Registrar and the People’s Court. 

64 As noted above, the first defendant refused to tell me the identity of the person who had signed the documents he filed in the name of the Attorney-General. Further, he refused to tell me where ‘the People’s Court of Terra Australis’ would be sitting other than to say it would be in ‘in exactly the same place as the Supreme Court of Victoria, all caps, does’.[24] 

65 Having made reference to ‘the People’s Court of Terra Australis’, the first defendant informed me that he had ‘just changed where this [proceeding] is going to be heard’[25] and that the Court was a ‘fraud’[26] and that I did ‘not have [his] consent or permission to continue’[27] with the hearing. I rejected that contention and informed the first defendant that I intended to hear and determine the application. No further submissions were advanced by the first defendant and none of the submissions (to the extent they could be characterised as such) made by the first defendant at the hearing before me were addressed to the establishing a prima facie case such that the Caveat ought not be removed. 

The People’s Court of Terra Australis 

66 ‘The People’s Court of Terra Australis’ appears to be a recent invention which seeks to give itself legitimacy thought the operation of a website “thepeoplescourtofterraaustralis.org”, established in mid-2022. On that website can be found a pseudo coat of arms/court seal and various pro-forma documents some of which were relied on by the first defendant. A brief review of those documents suggests that they are nothing more than a series of random statements copied from other sources and cobbled together into supposed official looking documents. No doubt the pseudo coat of arms/court seal have been included to provide some air of legitimacy to the alleged court. It is sufficient to observe that the inclusion of a made up coat of arms/court seal for a made up court does not legitimise the court or the arguments advanced by the first defendant. Any suggestion that ‘the People’s Court of Terra Australis’ has any legal status, authority or standing in Victoria or indeed Australia ought to be denounced in the strongest possible terms as should the content on its website. I reject that it has any validity, application or relevance to the proceeding before me. 

Pseudo-law concepts 

67 Pseudo-law concepts such as those raised by the first defendant before me are by no means new. In their recent article, ‘The Internationalisation of Pseudolaw : The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand’,[28] the authors Hobbs, Young and McIntyre tracked the development of pseudo-law describing it in the following terms (citations omitted): The term ‘ pseudolaw ’ refers to a distinct phenomenon whereby ‘a collection of legal-sounding but false rules that purport to be law’ are deployed. Pseudolaw ‘superficially appears to be law, or related to law, and usually uses legal or legal-sounding language, but is otherwise spurious’. For this reason, it is regularly described by courts as nothing more than ‘obvious nonsense’, legal ‘gibberish’, or ‘gobbledygook’. However, while pseudolaw is ‘largely incoherent, if not incomprehensible’, and impenetrable to outsiders, it is not just a misunderstood and misapplied collection of doctrines, instruments, and rules. Pseudolaw is an ‘integrated and separate legal apparatus’ with its own confounding legal theories. Much of the source material is originally drawn from conventional law and legal sources, but it constitutes an ‘alternative legal universe’. 

68 The Courts have, particularly over recent years, seen an increase in the number of these types of arguments stemming from a fanciful legal universe that seems to have proliferated largely online. 

69 Examples include: (a) newly created credit and book entries, promissory notes, assignment of a reversionary interest in one’s birth certificate, the ‘Living Man’, the ‘Straw Man’, the capitalisation of a person’s name alleged to constitute a ‘corporation trust’ and acceptance for value in Bendigo and Adelaide Bank Limited v Grahame;[29] (b) an authenticated birth certificate as a security in Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales,[30] (c) the ‘Living Man’ and the capitalisation of a person’s name alleged to constitute a ‘corporation trust’ in Yap v Matic;[31] (d) the ‘Living Man’ in Stefan v McLachlan,[32] Re Coles Supermarkets Australia Pty Ltd,[33] Deputy Commissioner of Taxation v Bonaccorso (No 2),[34] Deputy Commissioner of Taxation v Bonaccorso (No 3),[35] and Palmer v No Respondent;[36] (e) the ‘Living Man’, ‘wet ink contracts’ and the Supreme Court being an alleged ‘fiction’ in Commonwealth Bank of Australia v Moir;[37] (f) Turnbull v Clarence Valley Council,[38] where the Court considered: (i) alleged international frauds and conspiracies (including one from the 1960s and involving secret IMF banking policies to control the global financial system and all governments under a world government and another allegedly pursued by Australian prime ministers, to remove the people from the Commonwealth of Australia); (ii) the ‘Living Man’ including assertions of universal sovereignty, deficiencies in birth registration, personage flowing from the Creator, and claimed violations of the Universal Declaration of Human Rights; and (iii) a notice issued to Council by the Velvet Revolution, which the plaintiff claimed evidenced service of a moratorium on all Local Council members, charging them with misprision of treason, which rested on which rested on the Crimes Act 1914 (Cth), UK legislation, the Nuremburg Code, Helsinki Code and Magna Carta, as well as claimed inalienable rights; (g) sovereign citizens generally in Bradley v The Crown,[39] and State of New South Wales v Hardy (Final); [40] (h) the ‘Straw Man’ in Kelly v Fiander;[41] and (i) secession and the ‘Straw Man’ in Deputy Commissioner of Taxation v Casley. 

70 Like many of the previous iterations by sovereign citizens that have been comprehensively rejected before, the first defendant’s arguments before me concerning the ‘Living Man’ and ‘the People’s Court of Terra Australis’ were nothing more than carnival of absurdity drawn from a mishmash of delusional arguments. Whilst it may be tempting to simply dismiss these claims as nonsense, gibberish, gobbledegook or like, in doing so that should not diminish from the serious impact these delusional arguments can have on the authority of the Court. 

71 In Yap v Matic (No 4), Solomon J described the danger of these type of arguments in the following terms:

There are aspects of the views of that movement that have come before this and other courts, including some of the views expressed by this defendant, which reflect a rejection to one degree or another of the court's authority. Those views, and their apparent increasing popularity, or acceptance, cannot be dismissed as harmless or bemusing nonsense. The promulgation of such views and beliefs represents a dangerous corrosion of some of our society's most fundamental values in the maintenance of the rule of law and the administration of justice 

72 In Yap v Matic (No 7), Solomon J expressed similar concerns in respect of the sovereign citizen movement, stating: 

This is a movement that has been gaining popularity and traction in Australia over the last few years but has also been prolific in other jurisdictions for longer. The growing prevalence of this class of beliefs and associated conduct is a matter of concern for the preservation of the authority of the court and the administration of justice... 

73 I respectfully adopt the concerns expressed by Solomon J. 

74 Similarly, the waste of limited Court resources in having to deal with pseudo-legal concepts should likewise be denounced. 

75 Observations have been made by judges in other cases pointing to the waste of scarce judicial resources involved in addressing the pseudo-legal claims of sovereign citizens, ‘living persons’ or other such incarnations. 

76 In Rossiter v Adelaide City Council, Livesey J said (citations omitted):[48] Various terms have been used to describe “pseudolegal arguments” such as those advocated by the appellant in this case. They have without reservation been rejected as involving both legal nonsense and an unnecessary waste of scare public and judicial resources. So too here. 

77 In Re Magistrate M M Flynn; Ex parte McJannett,[49] McKechnie J said:[50] Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve deluded understanding of the law. 

78 I wholly agree with and adopt those criticisms.