Babble

In DCT v Palmer (No 2) [2022] VCC 2001 the County Court has considered sovereign citizen style claims by Palmer regarding taxation. 

 The Court states 

 Mr Palmer filed a document styled “Conditional Defence of Defendant” dated 23 October 2019. This document ... described Mr Palmer as being “a de jure solemn et naturale” and as being “a subject of the Crown United Kingdom of Great Britain and Ireland (pursuant to s117 of the Commonwealth Constitution) and that Crown is defined as ‘a body of law’ that has been established through proper due process ...”. It also described Mr Palmer as a “living, breathing man,” stating that he was acting “for and on behalf of the Defendant as the Person’s Personal Representative of person Michael Gareth Palmer, and as the beneficiary of that constructive trust ...”. According to the “Conditional Defence”, Mr Ravanello, the plaintiff, was not “a lawfully appointed Deputy Commissioner of Taxation – at best he is a Second Commissioner of Taxation who has purportedly been ‘assigned’ the duties of a Deputy Commissioner of Taxation – and does not, in fact, have the right to enforce the taxation laws within the Commonwealth of Australia.” The defence proceeded to deny the lawfulness of the assessments of taxation made against Mr Palmer, alleging that Mr Ravanello “unlawfully accessed private foundation accounts ... of which the Defendant was merely a participant (not the sole beneficiary of) without a lawful warrant ...” The defence said that the Taxation Administration Act, as referred to in the Statement of Claim, “has not been lawfully amended and there exists no valid proclamation certificate for the sections referred to in the Statement of Claim.” The defence denied at length the various allegations in the Statement of Claim. Mr Palmer also denies the jurisdiction of this Court to entertain the plaintiff’s claim. Hence, the “conditional” nature of his defence. The document concluded: “The Defendant requires the matter to be struck out, with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and the proceeding is, in its entirety, a legal nonsense. The Defendant claims costs and damages.” ... 

At the outset, Mr Palmer, reiterating the assertion relative to his identity and proper mode of address, which I have quoted from the Conditional Defence (which I confess I cannot follow), asked to be addressed as “Michael”. He denied that he had been validly impleaded and therefore objected to being designated as “the defendant”. I did not follow the logic of his objection to being addressed as Mr Palmer. In the circumstances, I determined to address him as “Sir”, and in discussions with the plaintiff’s counsel, Ms Wilson, to refer to him as “your opponent”. 

Mr Palmer began by raising matters which he said constituted a challenge to jurisdiction, calling upon me in effect to establish that I had jurisdiction, and also to determine his review application prior to dealing with the plaintiff’s claims at trial. It seems that, broadly, the same complex issues were raised in support of the review application and to controvert the plaintiff’s claim at trial. Mr Palmer said logically I should deal with the review application first in light of the history of the matter and the fact that the same consideration raised by Mr Palmer seemed to be relied upon. On the review application and at trial, it seemed to me convenient that Mr Palmer advance all of his arguments and evidence at the outset, leaving it to plaintiff’s counsel, Ms Wilson, to respond but giving Mr Palmer a right of reply.  

Defendant’s contentions 

I will turn first therefore to the various matters urged by Mr Palmer, challenging the court’s jurisdiction and seeking to controvert the plaintiff’s claim. 

Jurisdiction 

According to Mr Palmer, it was incumbent on every judicial officer to satisfy himself or herself that he or she has jurisdiction to deal with the matter presented. He referred to a decision of the High Court in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398. Next, he referred to the High Court’s decision in Parisienne Basket Shoes v Whyte [1938] HCA 7; (1938) 59 CLR 369 for the proposition that where there was a disregard or failure to observe the conditions of jurisdiction, the matter was “coram non judice”; that is, as if there were no judge and the proceeding constitute a nullity. 

Mr Palmer then referred to an array of decisions, many of them from United States courts, to the effect that a determination made without a jurisdiction was of no effect. He also referred to an article in the “Sydney Law Review”, “Submission to the Jurisdiction of a Foreign Court” referring to a then unreported decision of the Supreme Court of New South Wales, given at first instance by Kinsella J and in the Full Court by Street CJ, Owen and Walsh JJ, and in 1957 in Re A Lund & Co (Bilden Textiles) Ltd, A Lund & Co (Bilden Textiles) Ltd v Wembley Wear Pty Ltd, where the learned author of the notes stated:

“One of the broad rules of English and New South Wales private international law is that a court has jurisdiction in an action in personam if the defendant has been served within its jurisdiction or if he has submitted to the jurisdiction. Conversely, we (in England and in New South Wales) recognise that a foreign court has jurisdiction in the international sense if the defendant was served within its jurisdiction or submitted to it: no distinction being drawn between what constitutes a submission to our own court’s jurisdiction (apart from any special domestic legislation) and what constitutes a submission to a foreign court’s jurisdiction. The problem thus arises as to what constitutes a submission.” 

The photocopy extract which Mr Palmer handed up does not disclose the volume number of the Review in which the note or article appears, save to say that the extract begins at p580 and ends at p589. The article refers to a decision of Tallack v Tallack [1927] P 211. Mr Palmer’s authorities also included another decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, where Mr Palmer quoted the court at [51] as stating that an administrative decision involving jurisdictional error “is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.” 

It is doubtless correct that a court or other decision-making body should satisfy itself that it has jurisdiction before embarking upon the process of adjudication. Beyond that, Mr Palmer’s contentions conflate some three different situations: (a) the situation as to domestic jurisdiction of a superior court of record as, for instance, the Supreme Court of Victoria or the Federal Court of Australia; (b) the situation as to jurisdiction in a domestic court other than a superior court of record as, for instance, in the case of this Court; and (c) the issue as to jurisdiction in private international law or “conflict of laws”, as it is sometimes described. 

As to superior courts of record, orders made even without jurisdiction remain valid and effective unless and until set aside on appeal. In Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 590, Rich J said “It is settled by the highest authority that the decision of the superior court, even if in excess of jurisdiction, is at the worst voidable and is valid unless and until it is set aside”; to similar effect, Posner v Collector for Inter-state Destitute Persons (Vict) [1946] HCA 50; (1946) 74 CLR 461, 489. These statements of principle were approved by Stephen, Murphy and Wilson JJ in Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13; (1981) 145 CLR 590, 602. Secondly, relative to matters of international jurisdiction in proceedings in personam, a court may acquire jurisdiction where a foreign resident voluntarily submits to the jurisdiction. Thirdly, in the case of courts other than superior courts of record, including this court, an administrative body, a step taken or an order made without jurisdiction is a decision that “lacks legal foundation” and is no decision at all in accordance with the passage quoted from Bhardwaj’s case by Mr Palmer. In Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, a judge of the District Court of New South Wales, after the plaintiff had recovered a judgment for a liquidated sum against two defendants, made an order restraining them from selling or otherwise disposing of or encumbering or further encumbering or dealing with their interests in a house property until further order or until payment of the amount of the judgment. The High Court held that the District Court did not have jurisdiction to make that order. Consequently, there was no power to punish one of the defendants for breaching the order, even although it had not been set aside on appeal when it was breached. 

Leaving to one side the international conflict of laws issues referred to in the article or note in the Sydney Law Review, a court cannot acquire jurisdiction by estoppel or agreement between parties. The jurisdiction either exists or it does not. Accordingly, the “conditional” nature of Mr Palmer’s defence and the attempt which he made to maintain the appearance which he filed as being conditional only were unnecessary. If this court lacks jurisdiction, its lack of jurisdiction would not be made good by any step which Mr Palmer might take or refrain from taking in the proceeding, or any admission which he might make or decline to make. 

According to Mr Palmer, there are a number of reasons why this Court did not have jurisdiction to entertain the claim brought against him. At the outset, after my tipstaff had given the proclamation opening to the court, he asked “is this Court operating under the King of Australia?” I replied in accordance with the proclamation that had just been given that it was. (T4, L16-20) Mr Palmer then said “so, where’s the instrument for the valid creation of His Majesty, the King of Australia, given that covering clause 5 of the Commonwealth Constitution binds all courts, judges and people of every State to the heir and successor of the sovereignty of the United Kingdom, not Australia, ...”. (Ibid, L21-26) 

He referred to a decision of the Full Court of the Federal Court of Australia in Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282, where the court Black CJ, Wilcox and Moore JJ rejected a contention that the Local Court and the Supreme Court of Western Australia were courts of a foreign power, namely the United Kingdom of Great Britain and Northern Ireland. [21] Their Honours said [28]:

“The authority by which judicial appointments in Western Australia are made is that of the Queen of Australia, who is relevantly a different constitutional entity to the Queen of the United Kingdom of Great Britain and Northern Ireland: see Australia Act 1986 (Cth), ss 7 and 10; Constitution, s 107.” 

A corrigendum to the court’s judgment indicates that the reference to the Commonwealth Constitution should be to s106 not s107. 

According to traditional constitutional analysis in the British Empire and later the Commonwealth of Nations, the statement made by their Honours would appear to be heterodox. In the famous case of The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited [1920] HCA 54; (1920) 28 CLR 129, the High Court considered the extent to which agencies of the states could be subjected to the jurisdiction of the Commonwealth Court of Conciliation and Arbitration, earlier authorities of the court having recognised the states as possessing intergovernmental immunity from interventions of Commonwealth law. The court rejected the existence of such immunities in the states and their agencies in what was regarded as a “new start” in Australian constitutional law. 

Referring to the doctrine of immunity of the states, the joint judgment given on behalf of Knox CJ, Isaacs, Rich and Starke JJ noted that the Commonwealth Constitution recited a determination of the Australian colonies (now states):

“... ‘to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.’ ‘The Crown,’ as that recital recognizes, is one and indivisible throughout the Empire. Elementary as that statement appears, it is essential to recall it, because its truth and its force have been over‑ looked, not merely during the argument of this case, but also on previous occasions. Distinctions have been relied on between the ‘Imperial King,’ the ‘Commonwealth King’ and the ‘State King.’ It has been said that the Commonwealth King has no power to bind the first and the last, and, reciprocally, the last cannot bind either of the others. The first step in the examination of the Con‑stitution is to emphasize the primary legal axiom that the Crown is ubiquitous and indivisible in the King’s dominions. Though the Crown is one and indivisible throughout the Empire, its legislative, executive and judicial power is exercisable by different agents in different localities, or in respect of different purposes in the same locality, in accordance with the common law, or the statute law there binding the Crown.” [1920] HCA 54; (1920) 28 CLR 129, 152

If the Crown be one and indivisible and ubiquitous throughout the Empire, what has changed since the Engineers’ case? Has anything changed? 

There has been no amendment to the Commonwealth Constitution on these matters. There have, however, been enactments of the Imperial Parliament which have been adopted by the Commonwealth Parliament. 

In 1931, the Imperial Parliament adopted what is known as the “Statute of Westminster 1931”. The text of that Statute is a schedule to a Commonwealth Statute known as the “Statute of Westminster Adoption Act 1942”. The Statute of Westminster is described as “an Act to give effect to certain resolutions passed by Imperial conferences held in the years 1926 and 1930”. 

Amongst the matters resolved at those conferences was that “it would be in accord with the established constitutional position of all members of the Commonwealth [viz the British Commonwealth of Nations] in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Title shall hereafter require the assent as well of the Parliaments of all the dominions as of the Parliament of the United Kingdom.” Most notably, the Statute of Westminster provided that the Colonial Laws Validity Act 1865 should not apply to enactments by dominion Parliament and no law made by the Parliament of a dominion should be void and inoperative on the ground that it was “repugnant to the law of England, or the provisions of any existing or future act of the Parliament of United Kingdom ...”. (s2) 

Certain provisions were expressed not to apply to Australia. In 1942, the Commonwealth Parliament enacted the Statute of Westminster Adoption Act to adopt the provisions of the Statute of Westminster with effect from the outbreak of World War II [viz 3 September 1939]. 

The next enactment, both by the Imperial Parliament and by the Commonwealth Parliament was the Australia Act 1986, which is referred to by their Honours in Piccinin’s case. The provisions referred to by their Honours was s7, whose chapeau is “powers and functions of Her Majesty and Governors in respects of states”, providing that the representative in each state should by the Governor and that the Queen’s powers and functions within the state should be exercised in accordance with the advice of the Premier of that state. 

Section 10 provided: “After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no further responsibility for the government of any state.” 

Until the enactment of this provision, the monarch acted upon the advice of the United Kingdom Ministers in appointing Governors of Australian States. It is difficult to see how the enactments just surveyed and, in particular, those referenced by their Honours in Piccinin’s case, revised the situation stated by the High Court in the Engineers’ case. A regime whereby a State Governor acts upon the advice tendered to him or her by the State’s Premier is in no way inconsistent with the “one and indivisible Crown” referred to in the quoted passage from the joint judgment in the Engineers’ case. 

Mr Palmer’s contention was that what represented the constitutional break in the continuity and precluded those courts, officials and others purporting to derive their authority from the Commonwealth Constitution was a Commonwealth enactment entitled “The Royal Style and Titles Act 1973 No 114 of 1973”. He made passing reference also to the Royal Style and Titles Act 1953. The 1953 Act was to be the assent of the Commonwealth Parliament “to the adoption by Her Majesty for use in relation to the Commonwealth of Australia and its territory, in lieu of the Style and Titles at present appertaining to the Crown, of the Style and Titles set out in the schedule”. 

The schedule showed the Style and Titles as being “Elizabeth II by the grace of God of the United Kingdom, Australia and her other realms and territories, Queen Head of the Commonwealth Defender of the Faith”. The Governor-General, Sir William McKell, rather than assenting to the Statute on the Queen’s behalf, endorsed the words “I reserve this Act for Her Majesty’s pleasure”. The print that I have shows Her Majesty’s assent in her handwriting “Elizabeth R”, April 3rd, 1953. 

The 1973 Act was in similar terms with the schedule Style and Titles being “Elizabeth II by the grace of God Queen of Australia and her other realms and territories, Head of the Commonwealth”. The Governor-General, Sir Paul Hasluck, rather than assenting on the Queen’s behalf, reserved the matter for Her Majesty, whose handwritten signature appears on the Statute “Elizabeth R, 19 October 1973”. 

These enactments and the Styles and Titles are consistent with the formulation in the Engineers’ case. Employment of a different title for the sovereign in different parts of her dominions does not destroy the indivisibility of the Crown which is a fundamental constitutional principle. 

The provisions of the Statute of Westminster which have been specifically adopted in Australia reflecting an agreement between the United Kingdom Government and inter alia the Government of the Commonwealth of Australia that the latter is to be consulted on matters of succession to the throne is inconsistent with the thought that the Queen or King of the United Kingdom, and the Queen or King of Australia might be a different person. 

The conclusion of the Full Court of the Federal Court for the purposes of determining the issue under the Commonwealth Bankruptcy Act 1966 arising for its determination in Piccinin’s case that the courts of Western Australia are, as regards the Commonwealth of Australia and the Federal Courts of Australia, “courts of a foreign power”, is plainly right. The Crown, however, remains one and indivisible as it was in 1920. 

Arguments similar to the ones relied on by Mr Palmer relative to the Royal Style and Titles Act 1973 were considered by Hayne J as a single Justice of the High Court in Joosse v ASIC (1998) 159 ALR 260; [1998] HCA 77. His Honour had before him some five separate proceedings, each of which were the subject of applications for them to be removed from various courts in Victoria to the High Court of Australia on the basis that each “arises under the Constitution or involves its interpretation”. His Honour said at [11]:

“In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, ‘break in sovereignty’ in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid.” 

His Honour continued, explaining that it was contended on behalf of the applicants that the: “references to the Queen in the sovereignty of the United Kingdom, yet since the Royal Style and Titles Act 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament.” (1998) 159 ALR 260, 263 [12] 

The resemblance of this argument to the one pressed by Mr Palmer and now under consideration is obvious. His Honour said: “each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable.” (Ibid, [15]) 

This is as downright a rejection of a legal argument as can be made. His Honour considered the concepts of sovereignty and the evolution of Australia’s constitutional position from its colonial past to a fully sovereign independent nation by reference to the various legal steps referred to above, such as the Statute of Westminster, the Statute of Westminster Adoption Act and the Australia Act. In considering the argument as to the alleged break in sovereignty, his Honour said it was covering clause 5 of the Constitution which was key. The clause states: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.” ((1998) 159 CLR 260, 265 [19]) 

His Honour continued: “It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution.” (Ibid, [19]) 

As to the Royal Style and Titles Act, his Honour said: “As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not.” (Ibid, [20])  

The jurisdictional challenge based on changes in the monarch’s Styles and Titles failed. 

Logically, the same reasoning leads to the conclusion that insofar as Mr Palmer challenged the entitlements of the Deputy Commissioner on the same basis of a break in sovereignty, such challenge to the Deputy Commissioner’s authority must likewise fail. 

Mr Palmer also challenged the court’s jurisdiction on the basis that it was a trading corporation and, as such, could not exercise judicial power. 

The first point to note relative to this contention is that there is nothing in the County Court Act 1958, or any other statute, which constitutes the court as a corporation, either aggregate or sole. 

Mr Palmer’s contention in this respect was based on a decision of the High Court of Australia, namely Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171. He took me to material obtained online relative to Australian Business Numbers, indicating that state bodies or instrumentalities, such as the court and the Office of the Governor, held Australian Business Numbers. This, he said, indicated that the court was a trading corporation. 

Assuming without deciding that if the court were a trading corporation it would be disabled from exercising judicial power for matters relied on by Mr Palmer does not establish that the court is a trading corporation. In the Queensland Rail case, the High Court considered a series of questions including whether the Commonwealth Fair Work Act 2009 applied to Queensland Rail and its employees to the exclusion of a state statutes, Queensland Rail Transit Authority Act 2013. The Commonwealth Act would have overriding operation relative to Queensland Rail. Inter alia, if Queensland Rail were considered to be a trading corporation within the meaning of s51(XX) of the Commonwealth Constitution. It was contended on behalf of Queensland Rail that it was not a trading corporation because its constituent statute established it as an entity which was “not a body corporate”. 

The court analysed the functions and operations of Queensland Rail and concluded that it did engage in a commercial enterprise and so should be regarded as being “a trading corporation” for constitutional purposes. It may be that the Queensland Rail case constitutes an answer to the matter which I raised earlier, namely that there is nothing in the County Court Act, or any other legislation, which constitutes this Court as a corporation. What is lacking, however, is a demonstration that its activities constitute it as a trading corporation. Mr Palmer drew attention to the Australian Business Number and said that the court was in the business of “hiring out courtrooms”. Whether that accurately characterises some of the court’s activities I am unable to say. I do not have exhaustive knowledge of all of the court’s operations. I know sufficient of its activities, however, to be confident that they are predominantly judicial and therefore governmental rather than trading or commercial. If any trading or commercial activities is in fact undertaken, it is minor and incidental to the dominant judicial and governmental, such that the court does not bear the overall character of a trading corporation. 

Australian Business Numbers are required inter alia for government entities defined to include Commonwealth and State Departments and other government agencies. A number system (Australian Business Numbers Act 1999, s5) regime was apparently established to facilitate the collection of taxes by the Commonwealth. It is an ordinary enactment of the Commonwealth Parliament not a constitutional amendment. It is not apt to impose a trading character upon the court or its activities. 

A further subset of Mr Palmer’s jurisdictional challenge was a contention that Judicial Registrar Tran (as her Honour then was) was not authorised to exercise Federal judicial power as a judicial registrar. He referred to R v Davison (1954) 90 CLR 280. In that case, the High Court invalidated as contrary to the provisions of Chapter III of the Constitution, purporting to authorise a registrar in bankruptcy to make sequestration orders. The Court concluded that the regime purported to authorise a person [viz the registrar] who did not constitute a court, in particular, did not constitute the then Federal Court of Bankruptcy with authority to exercise Commonwealth judicial power and was therefore invalid. 

Mr Palmer said an arrangement which purported to authorise the judicial registrar to deal with his application for a summary dismissal of this proceeding was likewise offensive to Chapter III of the Commonwealth Constitution. It was common ground that this proceeding in its entirety is a Federal matter and must therefore be determined in accordance with Chapter III of the Commonwealth Constitution. 

Ms Wilson on behalf of the plaintiff referred to a later decision of the High Court in Commonwealth of Australia v The Hospital Contribution Fund of Australia (1982) 150 CLR 49, where the Commonwealth had sought declaratory relief against the fund contending that a Master of the Supreme Court of New South Wales did not have power to deal with subpoenas that had been issued by the fund against a Commonwealth Minister. 

In accordance with earlier authorities, such as Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21; (1971) 122 CLR 114, the High Court held that a Master of the Supreme Court of New South Wales was not a “component part of the court”. Nevertheless, the court held that references in the Constitution and the Commonwealth Judiciary Act to “courts of a state” referred to the relevant courts as institutions and not the persons of which they were composed and, in the circumstances, the Master could be regarded as constituting the Supreme Court of New South Wales for the purpose of the exercise of the powers which were conferred upon him. Kotsis v Kotsis and Knight v Knight, which had invalidated bestowal of federal jurisdiction on Masters, were overruled. ((1982) 150 CLR 49) 

Mr Palmer correctly observed that the HCF case dealt with the situation of a master not a judicial registrar. Davison’s case does not seem to have been expressly overruled in the HCF determination. However, the Registrar in Bankruptcy in Davison’s case was not attached to any particular court, albeit controlled by the Federal Court of Bankruptcy. 

The logic of HCF tells in favour of judicial registrars as much as masters being able to constitute a State court and exercise Federal judicial power. 

In the end, it is unnecessary for me to determine this question. Rule 84.03 of the Court’s rules, dealing with review by judge or judicial registrar decision, by sub-rule (5) provides “A review under this rule shall be conducted by way of a hearing de novo”. Even if there were an issue as to the judicial registrar’s jurisdiction, bringing the matter before a judge of the court would cure that problem. This element of Mr Palmer’s jurisdictional challenge also fails. Mr Palmer relied on Bills prepared as part of the Constitution Commission Report 1988, which provided for deletions “omitting obsolete words and so as to recognise the Queen of Australia”. These Bills were never enacted. Mr Palmer said that the fact that they were not enacted indicates that one cannot simply treat the references in the 1900 Constitution to the Queen of the United Kingdom et cetera as equivalent to a reference to the Queen of Australia. 

The fact that these Bills were not enacted might be regarded as indicative of an opinion that they were unnecessary, which is consistent with the view advocated here by the plaintiff. 

Another element of Mr Palmer’s contention of a radical break in constitutional continuity in 1973, such that enactments since that date are invalid, is based upon the defacing of the former Great Seal of the Commonwealth of Australia and its replacement with a new seal in 1973. Mr Palmer produced material from the National Archives of Australia, including a Royal Warrant signed by the Prime Minister of Australia as at 1973, the Honourable EG Whitlam, directing the Governor-General of Australia to deface the existing Great Seal adopted on 16 February 1954, adopting in lieu of that former seal the new one submitted. This document is styled “Royal Warrant” and is endorsed by Her Majesty “Elizabeth R”. Also included in the material was advice to the Governor-General from Mr Whitlam, as prime minister, to the effect that, whilst there was no legal necessity for the 1973 Statute to be “reserved for Her Majesty’s pleasure”, it was appropriate nevertheless for the 1973 Bill to be submitted to Her Majesty. As we have seen, she assented. Where Queen Elizabeth the Second, the monarch in proper succession to Queen Victoria, the monarch at the time of the adoption of the Commonwealth Constitution, assented to the defacement of the 1954 version of the Great Seal and the adoption of a new one, it is not evident why this should represent a radical break in sovereignty so as to invalidate subsequently enacted laws assented to by Her Majesty under her new title, Queen of Australia. 

Personhood 

I have already drawn attention to the unorthodox manner by which Mr Palmer refers to himself on court documents in the heading the suffix “Being a subject of the King of the United Kingdom”. 

In a set of questions headed “Defendant’s Updated Conditional List of Issues”, at paragraph 76 Mr Palmer said “How can the plaintiff establish that the defendant is a ‘person’ for the purpose of the legislation they rely on when a ‘person’ is defined as ‘an abstraction, a creature of the mind only. It is imaginary, having neither actuality nor substance, is foreclosed from obtaining parity with the tangible such as the living man or woman, as per Cutchell v Denver and Spalding v Denver, as well as the LibertyWorks Inc v Commonwealth of Australia 2021 HCA 18 case, when the defendant is quite clearly a living, breathing man a de jure solum et naturale. 

He noted that the definition of tax payer in the Income Tax Assessment Act 1936 referred to a “person deriving income or profits or gains of a capital nature”. He referred to the definition of person in s195.1 of the Statute, “A New Tax System (Goods and Services Tax Act 1999) as being “includes a company”. He said “it does not, however, state that it includes a man or a woman”. 

The Oxford English Dictionary online edition gives one of the principal meanings to the noun “person” as “an individual human being; a man, woman, or child”. Most words in a statute are not the subject of specific definition. They bear their ordinary meaning as used in the English language. 

As to the definitions beginning with the words “means” or “includes”, according to Pearce and Geddes Statutory Interpretation in Australia (7th edition), “The orthodox, and it is submitted, the correct approach to the understanding of the effect of these expressions [viz means and includes] is that ‘means’ is used if the definition is intended to be exhaustive, while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word.” ([6.61] 248) 

The normal meaning of the word “person” is as quoted from the Oxford English Dictionary. The word “includes” in the definition to be found in the Goods and Services Statute has the effect of extending the meaning. Assuming that the definition in the Goods and Services Tax Statute relied on by Mr Palmer had any relevance (which it does not), its effect would be that person means human beings in accordance with its ordinary meaning as an English word, but also extends to companies. There is no basis for the contention that Mr Palmer is not a person and therefore is outside the definition of “tax payer” for the purposes of the income tax legislation.

Parenthood

'Parental orders for deceased intended parents: Re X (Foreign Surrogacy: Death of Intended Parent) [2022] EWFC 34' by Alan Brown and Katherine Wade in (2022) Medical Law Review fwac045 comments 

If one intended parent in a surrogacy arrangement dies before the birth of the child, can both intended parents become the child’s legal parents? That was the question in Re X (Foreign Surrogacy: Death of Intended Parent). The legal starting point is that intended parent/s must apply for a parental order under the Human Fertilisation and Embryology Act 2008 (‘the 2008 Act’) after the child’s birth to obtain legal parenthood. This is required because the 2008 Act determines that the birth mother is the legal mother. Until 2018, parental orders were solely governed by section 54, which provides the conditions for a parental order to be granted to couples who are married, in a civil partnership4 or ‘living together in an enduring family relationship’. However, in 2018, a ‘declaration of incompatibility’ under section 4 of the Human Rights Act 1998 (‘the 1998 Act’) was made, leading to the insertion of section 54A, which provides the conditions for single applicants. 

Re X (Foreign Surrogacy: Death of Intended Parent) is the latest case where the judiciary have ‘read down’ the section 54 conditions, through section 3 of the 1998 Act, to grant parental orders in circumstances where these statutory conditions do not otherwise appear to have been met. This is the third reported judgment where the intended father died prior to the parental order being issued. This commentary explores how the judgment in Re X (Foreign Surrogacy: Death of Intended Parent) builds upon these cases and on the general trend in the case law where the section 54 conditions are being stretched beyond their apparent limits. First, we consider the questions raised by this judgment and the preceding cases involving deceased applicants, regarding the judicial interpretation of the statutory requirement for a ‘genetic link’ under section 54(1)(b). Secondly, we examine the implications of the reasoning for other factual contexts, namely couples who separate before making a parental order application, as well as a potential wider challenge to the compatibility of the genetic link requirement for single applicants under section 54A with the European Convention on Human Rights (ECHR).

Networks

'Weaponized Interdependence: How Global Economic Networks Shape State Coercion' by Henry Farrell and Abraham L. Newman in (2019) 44(1) International Security 42–79 comments 

In May 2018, Donald Trump announced that the United States was pulling out of the Joint Comprehensive Plan of Action agreement on Iran's nuclear program and re-imposing sanctions. Most notably, many of these penalties apply not to U.S. firms, but to foreign firms that may have no presence in the United States. The sanctions are consequential in large part because of U.S. importance to the global financial network. This unilateral action led to protest among the United States' European allies: France's finance minister, Bruno Le Maire, tartly noted that the United States was not the “economic policeman of the planet.” 

The reimposition of sanctions on Iran is just one recent example of how the United States is using global economic networks to achieve its strategic aims. While security scholars have long recognized the crucial importance of energy markets in shaping geostrategic outcomes, financial and information markets are rapidly coming to play similarly important roles. In Rosa Brooks's evocative description, globalization has created a world in which everything became war. Flows of finance, information, and physical goods across borders create both new risks for states and new tools to alternatively exploit or mitigate those risks. The result, as Thomas Wright describes it, is a world where unprecedented levels of interdependence are combined with continued jockeying for power, so that states that are unwilling to engage in direct conflict may still employ all measures short of war. 

Global economic networks have security consequences, because they increase interdependence between states that were previously relatively autonomous. Yet, existing theory provides few guideposts as to how states may leverage network structures as a coercive tool and under what circumstances. It has focused instead on trade relations between dyadic pairs and the vulnerabilities generated by those interactions. Similarly, work on economic sanctions has yet to fully grasp the consequences of economic networks and how they are being weaponized. Rather, that literature primarily looks to explain the success or failure of direct sanctions (i.e., sanctions that involve states denying outside access to their own markets individually or as an alliance). Power and vulnerability are characterized as the consequences of aggregate market size or bilateral interdependencies. In addition, accounts that examine more diffuse or secondary sanctions have focused more on comparative effectiveness than on theory building. 

In this article, we develop a different understanding of state power, which highlights the structural aspects of interdependence. Specifically, we show how the topography of the economic networks of interdependence intersects with domestic institutions and norms to shape coercive authority. Our account places networks such as financial communications, supply chains, and the internet, which have been largely neglected by international relations scholars, at the heart of a compelling new understanding of globalization and power. Globalization has transformed the liberal order, by moving the action away from multilateral interstate negotiations and toward networks of private actors. This transformation has had crucial consequences for where state power is located in international politics, and how it is exercised. 

We contrast our argument with standard liberal accounts of complex interdependence. The initial liberal account of interdependence paid some attention to power, but emphasized bilateral relationships. Subsequent liberal accounts have tended either to avoid the question of power, focusing on mutual cooperative gains, to suggest that apparently lopsided global networks obscure more fundamental patterns of mutual dependence, or to posit a networked global order in which liberal states such as the United States can exercise “power with” (the power to work together constructively with allies) to achieve liberal objectives. 

Our alternative account makes a starkly different assumption, providing a structural explanation of interdependence in which network topography generates enduring power imbalances among states. Here we draw on sociological and computational research on large-scale networks, which demonstrates the tendency of complex systems to produce asymmetric network structures, in which some nodes are “hubs,” and are far more connected than others. 

Asymmetric network structures create the potential for “weaponized interdependence,” in which some states are able to leverage interdependent relations to coerce others. Specifically, states with political authority over the central nodes in the international networked structures through which money, goods, and information travel are uniquely positioned to impose costs on others. If they have appropriate domestic institutions, they can weaponize networks to gather information or choke off economic and information flows, discover and exploit vulnerabilities, compel policy change, and deter unwanted actions. We identify and explain variation in two strategies through which states can gain powerful advantages from weaponizing interdependence; they respectively rely on the panopticon and chokepoint effects of networks. In the former, advantaged states use their network position to extract informational advantages vis-à-vis adversaries, whereas in the latter, they can cut adversaries off from network flows. 

To test the plausibility of our argument, we present detailed analytic narratives of two substantive areas: financial messaging and internet communications. We selected these areas as they are significant to a range of critical security issues including rogue-state nonproliferation, counterterrorism, and great power competition. Moreover, global finance and the internet are often depicted as being at the vanguard of decentralized economic networks. As such, they offer an important test of our argument and a contrast to the more common liberal perspective on global market interactions. 

At the same time, financial messaging and internet communications see important variation in the level and kind of control that they offer to influential states. In the former, the United States, in combination with its allies, has sufficient jurisdictional grasp and appropriate domestic institutions to oblige hub actors to provide it with information and to cut off other actors and states. In internet communications, the United States solely has appropriate jurisdictional grasp and appropriate institutions to oblige hub actors to provide it with information, but does not have domestic institutions that would allow it to demand that other states be cut out of the network. This would lead us to expect that in the case of financial messaging, the United States and its allies will be able to exercise both the panopticon and chokepoint effects—so long as they agree. In contrast, in internet communications, the United States will be able to exercise the panopticon effect even without the consent of its allies, but it will not be able to exercise the chokepoint effect. This variation allows us to demonstrate the limits of these network strategies and also show that they are not simply coterminous with United States market size or military power. Empirically, the cases draw on extensive readings of the primary and secondary literature as well as interviews with key policymakers. Our argument has significant implications for scholars interested in thinking about the future of conflict in a world of global economic and information networks. For those steeped in the liberal tradition, we demonstrate that institutions designed to generate market efficiencies and reduce transaction costs can be deployed for coercive ends. Focal points of cooperation have become sites of control. For those researchers interested in conflict studies and power, we show the critical role that economic relations play in coercion. Rather than rehashing more conventional debates on trade and conflict, we underscore how relatively new forms of economic interaction—financial and information flows—shape strategic opportunities, stressing in particular how the topography of global networks structures coercion. Here, we use basic insights from network theory to rethink structural power, linking the literatures on economic and security relations to show how coercive economic power can stem from structural characteristics of the global economy. Finally, the article begins to map the deep empirical connections between economic networks—for example, financial messaging, dollar clearing, global supply chains, and internet communication—and a series of pressing real-world issues—including counterterrorism, cybersecurity, rogue states, and great power competition. 

We begin by explaining how global networks play a structural role in the world economy. Next, we describe how these networks, together with domestic institutions and norms, shape the strategic options available to states, focusing on what we describe as the panopticon and chokepoint effects. We provide detailed parallel histories of how networks in financial communication and internet communication developed and were weaponized by the United States. We conclude by considering the policy implications of clashes between countries such as the United States that have weaponized interdependence and other states looking to counter these influences.

Regulation

'From a 'Race to AI' to a 'Race to AI Regulation' - Regulatory Competition for Artificial Intelligence' by Nathalie A. Smuha in (2021) 13(1) Law, Innovation and Technology comments 

Against a background of global competition to seize the opportunities promised by Artificial Intelligence (AI), many countries and regions are explicitly taking part in a ‘race to AI’. Yet the increased visibility of the technology’s risks has led to ever-louder calls for regulators to look beyond the benefits, and also secure appropriate regulation to ensure AI that is ‘trustworthy’ – i.e. legal, ethical and robust. Besides minimising those risks, such regulation could facilitate AI’s uptake, boost legal certainty, and hence also contribute to advancing countries’ position in the race. Consequently, this paper argues that the ‘race to AI’ also brings forth a ‘race to AI regulation’. After discussing the regulatory toolbox for AI and some of the challenges that regulators face when making use thereof, this paper assesses to which extent regulatory competition for AI – or its counterpart, regulatory convergence – is (1) a possibility, (2) a reality and (3) a desirability. 

Consciousness

'On the moral status of social robots: considering the consciousness criterion' by Kestutis Mosakas in (2020) 36 AI and Society 429–443 comments 

While philosophers have been debating for decades on whether different entities—including severely disabled human beings, embryos, animals, objects of nature, and even works of art—can legitimately be considered as having moral status, this question has gained a new dimension in the wake of artificial intelligence (AI). One of the more imminent concerns in the context of AI is that of the moral rights and status of social robots, such as robotic caregivers and artificial companions, that are built to interact with human beings. In recent years, some approaches to moral consideration have been proposed that would include social robots as proper objects of moral concern, even though it seems unlikely that these machines are conscious beings. In the present paper, I argue against these approaches by advocating the “consciousness criterion,” which proposes phenomenal consciousness as a necessary condition for accrediting moral status. First, I explain why it is generally supposed that consciousness underlies the morally relevant properties (such as sentience) and then, I respond to some of the common objections against this view. Then, I examine three inclusive alternative approaches to moral consideration that could accommodate social robots and point out why they are ultimately implausible. Finally, I conclude that social robots should not be regarded as proper objects of moral concern unless and until they become capable of having conscious experience. While that does not entail that they should be excluded from our moral reasoning and decision-making altogether, it does suggest that humans do not owe direct moral duties to them. 

 Mosakas argues 

In recent years, the question of moral status has gained a new dimension. While the twentieth century has been marked with a considerable rise in interest regarding the questions on the moral status of animals, environment, and certain marginalized groups of people (consider the movements against sexism, racism, and homophobia), increasing attention is now devoted to the issue of robot rights (Gunkel 2014a, 2018a; Gordon 2018a; Miller 2015). This question has become one of the utmost importance, because of the expected imminent developments in robotics, as well as the generally optimistic predictions from experts on the future of AI (Grace et al. 2017; Müller and Bostrom 2014). 

This paper considers the moral status of the so-called social robots (SRs hereafter)—machines that are autonomous, physically embodied, and able to interact with human beings on a social level (Darling 2016, 215). While certain types of SRs already exist today, their development, use, and capabilities should expand considerably in the near future. Thus far, however, there seems to be little agreement on the moral status of these entities. Drawing on some of the traditional literature, one may be tempted to infer that SRs do not qualify for moral status, because they are not conscious. However, some machine ethicists have proposed that consciousness may not be a necessary criterion for moral status after all. Indeed, one could argue that one of the key emerging characteristics of this on-going debate involves the move away from what may be labelled as “the consciousness criterion” (i.e., the capacity for phenomenal experience) for moral status and towards more inclusive approaches. Nevertheless, it is not obvious that one can be done with the consciousness criterion so easily. 

This paper has two principal goals. The first one is to outline the consciousness criterion and respond to some of the important objections lodged against it. The second is to consider some of the alternatives proposed in the context of the debate on the moral status of SRs and to provide a critical commentary on them. Ultimately, it is concluded that the substantial theoretical benefits provided by the consciousness criterion are unlikely to be surpassed by the competing accounts of moral status, in spite of the epistemological, metaphysical, and conceptual problems that pervade the notion of consciousness.

Pseudolegal

In Michelle Jenkins v Home@Scope Pty Ltd [2022] FWCFB 207 the Fair Work Commission has considered yet another pseudo legal claim regarding dismissal in relation to vaccination.

 [4] For the reasons that follow, permission to appeal is refused. 

Decision Under Appeal 

[5] The Commissioner began by considering s.396 of the Act and was satisfied by all the initial matters. The Commissioner then had regard to s.385, noting subsections (a), (c) and (d) were satisfied, leaving her to determine whether the dismissal was harsh, unjust or unreasonable pursuant to s.385(b) and considering the factors in s.387. 

Valid reason for dismissal – s.387(a) 

...   

[9] The Respondent submitted that the Appellant was terminated because she could no longer meet the inherent requirements of her role. The Appellant submitted that there was no valid reason for her dismissal related to capacity or conduct and made assertions as to the validity of the Directions and Orders. The Appellant also submitted that she was able to perform the administrative part of her role remotely and therefore she should not have been dismissed. Further, the Appellant submitted:

a) her contract of employment falls under federal law and cannot be overridden by a pandemic declaration; 

b) the vaccination mandate is unconstitutional; 

c) under the Nuremberg Code, it is a criminal act to pressure or coerce someone into having a vaccination; and 

d) her vaccination status is protected by the Privacy Act 1988 (Cth). 

[10] The Commissioner rejected the Appellant’s submissions, finding that they could not be sustained. Further, the Commissioner observed that the Directions and Orders were valid at the time of the Decision. The Commissioner noted there is no contest that the Appellant did not provide vaccination information to the Respondent and has at no stage claimed to be an excepted person to the Directions or Orders. 

[11] The Commissioner was therefore satisfied that the effect of the Direction prohibited the Respondent from allowing the Appellant to provide direct care to clients in their homes. The Respondent would have been in breach of its legal obligations if it allowed the Appellant to work outside of her primary residence from 15 October 2021. Further, the Commissioner was satisfied that the direction given by the Respondent was reasonable. ... 

[17] In conclusion, the Commissioner was satisfied that the Appellant’s dismissal was not harsh, unjust or unreasonable and therefore not unfair. The Commissioner dismissed the Appellant’s application. 

Grounds of Appeal 

[18] The Appellant provided lengthy submissions on her sovereignty and the COVID-19 vaccination mandate. While we have not set out these submissions we have read and considered them for this appeal. The Appellant’s grounds of appeal as set out in her F7 – Notice of Appeal are as follows:

Legislated reason I was dismissed for still has not been given to me by either Home@Scope or in the response to my application. 

As per (50) of the decision, you state I did not respond after the 13th when quiet clearly YOU have an email sent to Home@Scope dated after the 13th in which they did NOT respond. 

Evidence in a new case shows that YOU are unlawfully acting under a false coat of arms. 

You have NOT taken into any account the evidence I have provided nor have you provided me with any evidence of the authority of the CHO, PHO or State Premier. 

“Vaccination” there is NO authorised “vaccine” there is an experimental gene therapy that Greg Hunt spoke of, and as for that reason I will be seeking legal advice for an attempt on my life.”

[19] In terms of why the appeal is in the public interest the Appellant submitted:

I was dismissed because I followed a Constitutional Act and Act of the 1900 Constitution. This is in the Interest of the public as this is the constitution we the people follow and is lawful. The seal of the crown being removed in 1953 makes any laws altered without a referendum UNLAWFUL. 

Section 51 xxiii9(A) medical and dental services – as to not authorise civil conscription. Clause 5 of the constitution states “operation of the constitution, shall be binding on the courts, judges and the people of every state and of every part of the Commonwealth.” I believe you have breached this in your decision as I was adhering to my rights of my privacy under the Biosecurity Act 2015 and the Privacy Act. Every Law whether Federal or state is SUBJECT to the Constitution, and if a law is inconsistant (sic) with the Constitution it is INVALID. 

INFORMED CONSENT was NOT given to any living person on this earth. 

It is now being made public that this gene therapy is a form of genocide in which Home@scope are being complicit and not only my decision under a LAWFUL act of not disclosing my medical information which falls under the Nuremberg Code as this is an International LAW. It is now my understanding that millions have died from this experiment hence the reason I believe this to be in the best interest of everyone in the public. 

So I was dismissed for trying to stay alive. How is that not UNFAIR?”

In Ms Michelle Jenkins v Home@Scope Pty Ltd [2022] FWC 2003 the Commission had noted Jenkin's statement

“... Take note: 

I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy. 

I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment. 

I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety. 

I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee. 

I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us. 

Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due...”

Unlike the recent Miroch dispute Jenkins does not appear to have sought compensation in the form of bars of silver.

Algorithmics

'The flaws of policies requiring human oversight of government algorithms' by Ben Green in (2022) 45 Computer Law & Security Review comments 

 As algorithms become an influential component of government decision-making around the world, policymakers have debated how governments can attain the benefits of algorithms while preventing the harms of algorithms. One mechanism that has become a centerpiece of global efforts to regulate government algorithms is to require human oversight of algorithmic decisions. Despite the widespread turn to human oversight, these policies rest on an uninterrogated assumption: that people are able to effectively oversee algorithmic decision-making. In this article, I survey 41 policies that prescribe human oversight of government algorithms and find that they suffer from two significant flaws. First, evidence suggests that people are unable to perform the desired oversight functions. Second, as a result of the first flaw, human oversight policies legitimize government uses of faulty and controversial algorithms without addressing the fundamental issues with these tools. Thus, rather than protect against the potential harms of algorithmic decision-making in government, human oversight policies provide a false sense of security in adopting algorithms and enable vendors and agencies to shirk accountability for algorithmic harms. In light of these flaws, I propose a shift from human oversight to institutional oversight as the central mechanism for regulating government algorithms. This institutional approach operates in two stages. First, agencies must justify that it is appropriate to incorporate an algorithm into decision-making and that any proposed forms of human oversight are supported by empirical evidence. Second, these justifications must receive democratic review and approval before the agency can adopt the algorithm. 

 Green argues 

In recent years, governments across the world have turned to automated decision-making systems, often described as algorithms, to make or inform consequential decisions (Calo & Citron, 2021; Eubanks, 2018; Green, 2019; Henley & Booth, 2020). These developments have raised significant debate about when and how governments should adopt algorithms. On the one hand, algorithms bring the promise of making decisions more accurately, fairly, and consistently than public servants (Kleinberg et al., 2018; Kleinberg et al., 2015). On the other hand, the use of algorithms by governments has been a source of numerous injustices (Angwin et al., 2016; Calo & Citron, 2021; Eubanks, 2018; Green, 2019; Henley & Booth, 2020). The algorithms used in practice tend to be rife with errors and biases, leading to decisions that are based on incorrect information and that exacerbate inequities. Furthermore, making decisions via the rigid, rule-based logic of algorithms violates the principle that government decisions should respond to the circumstances of individual people. 

In the face of these competing hopes and fears about algorithmic decision-making, policymakers have explored regulatory approaches that could enable governments to attain the benefits of algorithms while avoiding the risks of algorithms. An emerging centerpiece of this global regulatory effort is to require human oversight of the decisions rendered by algorithms. Human oversight policies enable governments to use algorithms—but only if a human has some form of oversight or control over the final decision.1 In other words, algorithms may assist human decision-makers but may not make final judgments on their own. These policies are intended to ensure that a human plays a role of quality control, protecting against mistaken or biased algorithmic predictions. These policies aim to protect human rights and dignity by keeping a “human in the loop” of automated decision-making (Jones, 2017; Wagner, 2019). In theory, adopting algorithms while ensuring human oversight could enable governments to obtain the best of both worlds: the accuracy, objectivity, and consistency of algorithmic decision-making paired with the individualized and contextual discretion of human decision-making. 

Recent legislation assumes that human oversight protects against the harms of government algorithms. For instance, in its proposed Artificial Intelligence Act, the European Commission asserted that human oversight (along with other mechanisms) is “strictly necessary to mitigate the risks to fundamental rights and safety posed by AI” (European Commission, 2021). Following this logic, many policies position human oversight as a distinguishing factor that makes government use of algorithms permissible. The European Union's General Data Protection Regulation (GDPR) restricts significant decisions “based solely on automated processing” (European Parliament & Council of the European Union, 2016b). The Government of Canada requires federal agencies using high-risk AI systems to ensure that there is human intervention during the decision-making process and that a human makes the final decisions (Government of Canada, 2021). Washington State allows state and local government agencies to use facial recognition in certain instances, but only if high-impact decisions “are subject to meaningful human review” (Washington State Legislature, 2020). 

Despite the emphasis that legislators have placed on human oversight as a mechanism to mitigate the risks of government algorithms, the functional quality of these policies has not been thoroughly interrogated. Policymakers calling for human oversight invoke values such as human rights and dignity as a motivation for these policies, but rarely reference empirical evidence demonstrating that human oversight actually advances those values. In fact, when policies and policy guidance do reference empirical evidence about human-algorithm interactions, they usually express reservations about the limits of human oversight, particularly related to people over-relying on algorithmic advice (Engstrom et al., 2020; European Commission, 2021; UK Information Commissioner's Office, 2020). 

This lack of empirical grounding raises an important question: does human oversight provide reliable protection against algorithmic harms? Although inserting a “human in the loop” may appear to satisfy legal and philosophical principles, research into sociotechnical systems demonstrates that people and technologies often do not interact as expected (Suchman et al., 1999). Hybrid systems that require collaboration between humans and automated technologies are notoriously difficult to design, implement, and regulate effectively (Bainbridge, 1983; Gray & Suri, 2019; Jones, 2015; Pasquale, 2020; Perrow, 1999). Thus, given that human oversight is being enacted into policies across the world as a central safeguard against the risks of government algorithms, it is vital to ensure that human oversight actually provides the desired protections. If people cannot oversee algorithms as intended, human oversight policies would have the perverse effect of alleviating scrutiny of government algorithms without actually addressing the underlying concerns. 

This article interrogates the efficacy and impacts of human oversight policies. It proceeds in four parts. The first two parts lay out the context of my analysis. Section 2 provides background on the tensions and challenges raised by the use of algorithms in government decision-making. Section 3 describes the current landscape of human oversight policies. I survey 41 policy documents from across the world that provide some form of official mandate or guidance regarding human oversight of public sector algorithms. I find that these policies prescribe three approaches to human oversight. 

Section 4 evaluates the three forms of human oversight described in Section 3. Drawing on empirical evidence about how people interact with algorithms, I find that human oversight policies suffer from two significant flaws. First, human oversight policies are not supported by empirical evidence: the vast majority of research suggests that people cannot reliably perform any of the desired oversight functions. This first flaw leads to a second flaw: human oversight policies legitimize the use of flawed and unaccountable algorithms in government. Thus, rather than protect against the potential harms of algorithmic decision-making in government, human oversight policies create a regulatory loophole: it provides a false sense of security in adopting algorithms and enables vendors and agencies to foist accountability for algorithmic harms onto lower-level human operators. 

Section 5 suggests how to adapt regulation of government algorithms in light of the two flaws to human oversight policies described in Section 4. It is clear that policymakers must stop relying on human oversight as a remedy for the potential harms of algorithms. However, the correct response is not to simply abandon human oversight, leaving governments to depend on autonomous algorithmic judgments. Nor should regulators prohibit governments from ever using algorithms. Instead, legislators must develop alternative governance approaches that more rigorously address the concerns which motivate the (misguided) turn to human oversight. 

I propose a shift from human oversight to institutional oversight for regulating government algorithms. This involves a two-stage process. First, rather than assume that human oversight can address fundamental concerns about algorithmic decision-making, agencies must provide written justification of its decision to adopt an algorithm in high-stakes decisions. If an algorithm violates fundamental rights, is badly suited to a decision-making process, or is untrustworthy, then governments should not use the algorithm, even with human oversight. As part of this justification, agencies should provide evidence that any proposed forms of human oversight are supported by empirical evidence. If there is not sufficient evidence demonstrating that human oversight is effective and that the algorithm improves human decision-making, then governments should not incorporate the algorithm into human decision-making processes. Second, agencies must make these written justifications publicly available. Agencies are not allowed to use the algorithm until its report receives public review and approval. 

Compared to the status quo of blanket rules that enable governments to use algorithms as long as a human provides oversight, this institutional oversight approach will help to prevent human oversight from operating as a superficial salve for the injustices associated with algorithmic decision-making.