Sovereignty

In Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650 the NSW Supreme Court has taken judicial notice of the Uluṟu Statement from the Heart. 

It recognises the spiritual sovereignty of ATSI peoples over the Australian Continent and adjacent lands, co-existing with the sovereignty of the Crown.  The judgment will presumably be misread as recognising a non-spiritual sovereignty.

The Court states 

 It is convenient to set out the orders sought by Mr Anderson in his motion (without alteration): 

 

1   That the originating process by the Indigenous Land and Sea Corporation be dismissed in accordance with the NSW Uniform Civil Procedure Rules, Rule 12.11, 1(g) 

 

2   That the claim by the Indigenous Land and Sea Corporation be dismissed on the grounds that the Euahlayi/Yawaalaraay Nation falls within the definition of, Interpretation, 1 (b) of the Foreign States Immunities Act 1985. 

 

3 That this court make a declaration that to proceed with the plaintiff’s case without this court having the competency to adjudicate on Euahlayi laws and customary practices will prejudice the Défense of the First Defendant Michael Anderson and thus be in violation of section of the Commonwealth Racial Discrimination Act 1975. 

 

4 That this court make a declaration that this case cannot proceed without engaging ceremonially educated Aboriginal Senior law men and women who hold the sacred celestial knowledge law and customs. 

 

5 That the court make a declaration that the First named Defendant Michael Anderson’s Nationality is Euahlayi/Yawaalaraay (hereinafter Euahlayi) Dthane (man) 

 

6 That the court make a declaration that the first named defendant Michael Anderson (tribal birth name Ghillar) aka Michael Eckford (Registered Birth name) is the recognised Leader of the Euahlayi/Yawaalaraay Nation as recognised by the Foreign Sovereign Head of the Commonwealth of Australia, the late Queen Ngudthy 11, (for the purpose of observing Euahlayi law and customary practice. It a sign of respect not to name a deceased person) In regard to the recognition of the First Defendant See Cross Claim affidavit of Michael Anderson dated July 21, 2021, to Case No.2020/00363972 annexure C. 

 

7 The Euahlayi/Yawaalaraay Nation does not submit to the jurisdiction of this court but are making this submission in accordance with section 10 (7) (b) of the Foreign States Immunities Act 1985. That is: Section 7) A foreign State shall not be taken to have submitted to the jurisdiction in a proceeding by reason only that: (a) it has made an application for costs; or (b) it has intervened, or has taken a step, in the proceeding for the purpose or in the course of asserting immunity. 

 

8 That this court make a declaration that to proceed with this case number 2020/00363972 will violate section 10 of the Racial Discrimination Act 1975 on the grounds that the court fails in its ability to consider Euahlayi Laws and Customs because these laws and Customs belong to a Foreign Nation who have never been Conquered, ceded, nor acquiesced. 

 

9 Further to this, I respectfully submit that this court does not have jurisdiction to consider the origins of Euahlayi/Yawaalaraay ‘celestial law’ that establishes the laws and Customary practises of the Bhurrah (Peoples) within the boundaries as they are and always will be independent clans’ territories within that Euahlayi/Yawaalaraay boundary. 

 

This is a matter that falls within the same category as ecclesiastical law and does not fit within the scope of civil and common law jurisdiction. 

 

There is a fundamental inconsistency in Mr Anderson’s challenge to the Court’s jurisdiction. He seeks to have the plaintiff’s proceeding dismissed yet, on the other hand, he presses his Cross-Claim and also seeks various declaratory orders as set out in his motion. 

 

In brief, the challenge to jurisdiction raises the following four matters: Whether the Foreign States Immunities Act 1985 (Cth) applies. Whether the Pacific Islanders Protection Act 1872 35 & 36 Vict c 19 (Imp) and Pacific Islanders Protection Act 1875 38 & 39 Vict c 51 (Imp) apply. Related to issue (2), whether Mr Anderson can claim a sovereignty which takes him outside the Court’s jurisdiction. 

 

Whether the Court lacks competency and capability to adjudicate on Euahlayi laws and customary practices. 

 

It is convenient to address each of those matters in turn. 

 

(1) Foreign States Immunities Act 

 

The Foreign States Immunities Act provides for a general immunity of a foreign State from the jurisdiction of Australian courts, except as provided by or under the Act. 

 

There are several reasons why Mr Anderson’s reliance upon this legislation is misconceived. First, there is the fact that Mr Anderson is a party to these proceedings in his personal capacity, being a person occupying the lands without the permission of the registered proprietor. The ILSC did not challenge Mr Anderson’s claim to be the ceremonial Elder of the Ghurrie Clan and recognised ceremonial Elder and Leader of the Euahlayi Nation. The fact remains, however, that he is sued in his personal capacity. He personally does not qualify as a “foreign State” within the definition of that expression in s 3 of the Act, which means: … a country the territory of which is outside Australia, being a country that is: (a) an independent sovereign state; or (b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state. 

 

Even if it be assumed for the sake of argument that the relevant State is the Euahlayi Nation and not Mr Anderson personally, the territory to which that Nation relates is not territory which is “outside Australia” for the purposes of the definition of “foreign State” in s 3. The term “Australia” is defined in s 3 as: when used in a geographical sense, includes each of the external Territories. 

 

There can be no question that the reference to “outside Australia” in the definition of “foreign State” is a reference to the country of Australia in a geographical sense. Thus, even though Mr Anderson asserts that the Euahlayi Nation has never been part of Australia in the sense of never having ceded its sovereignty, geographically speaking that Nation’s territory is physically part of Australia. 

 

Secondly, even if, contrary to the above, Mr Anderson could overcome these significant threshold obstacles to his reliance upon the Foreign States Immunities Act, the effect of s 14(1) of that Act is that a foreign State is not immune in a proceeding to the extent to which the proceeding concerns: (a) an interest of the State in, or the possession or use by the State of, immovable property in Australia; or (b) an obligation of the State that arises out of its interest in, or its possession or use of, property of that kind. 

 

There is no doubt that this proceeding relates to the possession or use of immovable property in Australia. 

 

Thirdly, and for completeness, it is also relevant to note the effect of s 10(6)(b) of the Act. It provides that, subject to ss 10(7), (8) and (9), a foreign State may submit to the jurisdiction in a proceeding by inter alia “intervening in, or taking a step as a party to, the proceeding”. As noted above (assuming contrary to the above that Mr Anderson personally is a foreign state), Mr Anderson has taken various active steps as a party to the proceeding, including filing a defence, an amended defence, evidence, and a notice of motion challenging the plaintiff’s claims of privilege in respect of certain documents. These various steps (which are distinct from the motion which challenges jurisdiction) cannot be described as steps taken in “the proceeding for the purpose or in the course of asserting immunity”, as referred to in s 10(7)(b). 

 

(2) Pacific Islanders Protection legislation 

 

As Mansfield J pointed out in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [54], this Imperial legislation was passed to protect the Indigenous peoples of the islands of the Pacific Ocean from kidnapping for the purposes of labour, a practice which is sometimes described as “blackbirding”. The preamble to the 1872 legislation expressly refers to “natives of islands in the Pacific Ocean, not being in Her Majesty’s Dominions” (emphasis added). Section 2 of that Act defined “Australasian Colonies” as including the colonies of New South Wales and Queensland. Those colonies were at the relevant time part of Her Majesty’s Dominions. 

 

The 1872 Act provided in s 3 that it was unlawful for British vessels to carry native labourers unless they had a licence granted, relevantly, by a governor of any of the Australasian Colonies. 

 

The fact that the legislation was directed to islands and places in the Pacific Ocean not being within Her Majesty’s Dominions is also made abundantly clear in s 6 of the 1875 Act. That provision empowered the making of Orders in Council to establish courts of justice with jurisdiction over Her Majesty’s subjects in such islands and places and to impose penalties etc. 

 

I respectfully agree with Mansfield J’s conclusions and reasoning in Walker at [56] as to why this legislation does not apply to Indigenous Australians, including Mr Anderson and/or the Euahlayi Nation: 

 

On their own terms, those Acts do not apply to the Indigenous people of Australia. Their application is clearly with respect to the peoples of the islands in the Pacific Ocean, who did not have the protection of the law. Hence, jurisdiction to try the offences created by the Acts was conferred upon the Supreme Courts of the Australasian colonies. Further, their application is with respect to the islands of the Pacific Ocean “not being within her Majesty’s dominions”. As at the passing of the 1872 PIP Act, the Province of South Australia had been for some time within Her Majesty’s dominion, as had all the other colonies of Australia. 

 

Similar reasoning was applied by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [70], with which I also respectfully agree. 

 

(3) Sovereignty 

 

Order 6 sought by Mr Anderson in his motion appeared to raise a claim that the Euahlayi Nation constituted a separate sovereign nation in relation to which the Court had no jurisdiction. This claim also appeared to be supported by parts of Mr Anderson’s affidavit dated 21 September 2022, which included claims that “Sovereignty and Eminent Dominion over the said lands and waters of the Ghurriebhurrah are reserved to the ceremonial Elders” (at [12]) and that “the sovereignty of the Euahlayi/Yawaalaraay Nation continues and that we had Laws and Customs of our own” (at [19]). 

 

In oral address, Mr Anderson relied upon a “Declaration” and a “Declaration of Independence”, which documents appear to have been created on or around 1 July 2013. The Declaration states that the Euahlayi are the original peoples of the land and waters within certain defined territories identified in Sch 1 to the Declaration. The Declaration is signed by various persons. The Declaration of Independence, which is also signed by various persons, states that the “individual members of the Euahlayi State, representing each and all of our clans, are by virtue of our natural and historic inherrent (sic) right, resolve and declare the continuing sovereignty of the Euahlayi Nation, to be henceforth known as the ‘Euahlayi Peoples Republic’”. 

 

Mr Anderson said that copies of both Declarations had been sent to Her Majesty. Mr Anderson did not tender a copy of the letter which he stated he received in reply from Buckingham Palace. 

 

Notwithstanding these matters, and the fact that Mr Anderson also advanced arguments concerning the separate sovereignty of the Euahlayi people in his oral address in chief on the motion, in his oral address in reply Mr Anderson said that “… our argument is not about whether we’re a – about sovereignty. We’re not – that’s not the argument here. The argument here is about whether the Court has the capacity to deal with Yuwaalaraay law and make a decision over the land and the people who belong to the land as to whether or not they are entitled to be on that land. That’s the question here”. 

 

For completeness, however, I will now explain why the sovereignty arguments raised elsewhere by Mr Anderson must fail (as must also be his related reliance on s 10 of the Racial Discrimination Act 1975 (Cth)). 

 

To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point: 

 

43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held: 

 

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain. 

 

44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110-111 per Deane and Gaudron JJ: Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power. 

 

45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J: 

 

[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. ... Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided. 

 

46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia: Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. 

 

47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48-9 per Mason CJ; McDonald v Director of Public Prosecutions (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]-[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]-[17] per Connolly J. 

 

It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt his Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71]. 

 

Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original): Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. 

 

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. 

 

(4) Court’s competence or capacity 

 

As noted immediately above, in his oral address in reply, Mr Anderson identified his central argument as whether the Court has the capacity (or competency) to deal with the Euahlayi Nation’s law. That matter is also raised in orders 3, 4, 8 and 9 of his motion, and are elaborated upon in various parts of his affidavit dated 21 September 2022. For example, in that affidavit he claimed that Euahlayi laws and customs are foreign to the English common law, are sui generis and the Court lacked jurisdiction to “define and concluded (sic) the rights and interests of the Ghurrie clan under Euahlayi Law and Customs which are at the heart of the first defendants (sic) Défense and Cross Claim” (without alteration). He submitted that these matters were “more likely to be found in ecclesiastical laws”. He added that, because the Court could only adopt what he described as “a Eurocentric legal view of this case”, this prejudiced the Ghurrie clan’s rights and interests from being considered without apprehended bias.

Telcos

The Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022 (Cth)

amends the Telecommunications Act 1997 (the Act) to improve the operation of information disclosure provisions. The Bill addresses a range of matters associated with information disclosure and the national interest, including facilitating assistance provided by the telecommunications industry to law enforcement agencies and emergency service organisations. The Bill amends the record of disclosure requirements by increasing record keeping requirements to enable oversight of underlying laws or warrants which required or authorised a disclosure. In addition, the Bill make two technical amendments to the Telstra Corporation and Other Legislation Amendment Act 2021 (the Amendment Act) to ensure that the obligations and measures in the Act will commence as originally intended. 

1: Amendments relating to information use and disclosure 

Part 13 of the Act requires that carriers and carriage service providers do not disclose information which relates to communications carried over their networks. However, recognising there may be legitimate circumstances that require disclosure in the public interest, a number of exceptions to this general prohibition exist, which apply in limited and specified circumstances. Several amendments to information disclosure provisions are proposed in the Bill. 

Part 1 of the Bill introduces amendments to information disclosure and national interest provisions of the Act. Part 1 will commence on the day after this Act receives Royal Assent. These measures will:

a. Permit the use and disclosure of information for purposes connected to prevention of a serious threat to the life or health of a person; i. In a number of missing persons cases, law enforcement agencies have experienced practical challenges in ascertaining reasonable belief about the ‘imminence’ of a threat to the life or health of a person, even when the seriousness of the threat was clearly established. In both the Inquest into the death of Thomas Hunt (findings released 4 September 2020), and another recent inquest which has not been made public, the ‘imminent’ qualifier was a barrier to progressing a triangulation request that may have helped locate the individuals in question. A New South Wales Deputy State Coroner has recommended the Commonwealth urgently reform section 287 of the Act by removing the qualifier of an ‘imminent’ threat in the provision. ii. The Australian Law Reform Commission (ALRC) recommended reform to the use and disclosure principles in the Privacy Act so that an exception applies where the threat is serious, but not necessarily imminent. A similar recommendation was made by in the ALRC Report 108 (72-7) in relation to section 287 of the Act in light of the public interest purposes for doing so. While legislative amendments to the Privacy Act were introduced, as referenced in the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 to address the recommendation, a similar amendment to section 287 of the Act has not yet been introduced. This amendment would bring section 287 in line with the ‘Permitted general situations’ table at section 16A of the Privacy Act. 

b. Authorise the use and disclosure of unlisted numbers and associated addresses for purposes dealing with matters raised by a call to an emergency service number; i. This amendment authorises use and disclosure of information contained in an integrated public number database when the disclosure of such information is for the purposes connected with a call to an emergency service number and it is unreasonable to obtain the person’s consent. Only 5% of 72 million active phone numbers are listed, with mobile numbers being unlisted by default, this provision allows emergency call persons to access this information and respond to emergencies; and 

c. Confer civil immunities on telecommunications companies for the provision of reasonably necessary assistance to the Commonwealth, States or Territories to respond during emergencies if a national emergency declaration is in force. i. Carriers and carriage service providers may be asked to provide help as is reasonably necessary in connection with preparing for, responding to or recovering from an emergency. ii. This proposed amendment reflects the intention that such entities should not be liable to an action or other proceeding in relation to providing assistance.

2: Amendments to the record of disclosure requirements 

Part 2 introduces amendments to the record of disclosure requirements intended to improve transparency. Part 2 will commence six months after the day this Act receives Royal Assent. 

a. These measures will change record-keeping arrangements to require more detailed records of disclosure including underlying laws or warrants. This includes the name of the person who issues the warrant and the date of issuing. i. This recommendation was informed by a recommendation from the Office of the Australian Information Commissioner (OAIC), which noted that the lack of detailed information in the record of disclosure limits their oversight capability. This applies particularly to the OAIC’s compliance monitoring of such disclosures under s 309 of the Tel Act, and its ability to determine whether only necessary personal information is being disclosed by service providers when responding to information requests from enforcement agencies.

3: Other Measures 

Part 3 introduces technical amendments to the Telstra Corporation and Other Legislation Amendment Act 2021 to ensure that Act commences as was originally intended. Part 3, Division 1 commences immediately after the commencement of section 2 of the Telstra Corporation and Other Legislation Amendment Act 2021. Part 3, Division 2 commences immediately after the commencement of item 81 of Schedule 1 of the Telstra Corporation and Other Legislation Amendment Act 2021 (the Amending Act) and Part 3, Division 3 will commence will commence immediately after the Bill receives Royal Assent. This part will:

a. Ensure that the obligations and measures in the Act will commence as originally intended. i. Telstra Corporation Limited (Telstra) had intended to apply for Scheme of Arrangement Orders under section 413 of the Corporations Act 2001 to the Federal Court of Australia. However, subsequent to the passage of the Amending Act, Telstra commenced the proceedings in the Supreme Court of New South Wales. 

b. Redefine the definition of a telecommunications transmission tower in the Amending Act to not inadvertently apply to a too broad category of entity.

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.