Professions

In Fletcher v Heaft [2020] SASC 75 the SA Supreme Court has found that a penalty of good behaviour bond for three years against a woman who pleaded guilty to 66 offences under section 116(1)(c) of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) in claiming to be a registered nurse after deregistration was manifestly inadequate.

The Australian Health Practitioner Regulation Agency (AHPRA) appealed the sentence imposed on Heaft by a Magistrate, complaining on appeal that the Magistrate: (1) imposed a penalty which was manifestly inadequate; (2) misapplied section 120 of the Sentencing Act 2017 (SA); (3) erred in determining that community service was inappropriate; and (4) took into account an erroneous factual consideration. AHPRA successfully sought orders that the Magistrate’s sentence be set aside and the respondent be resentenced.

 A fresh bond was substituted, with a condition of performing 80 hours of community service within one year and six months.

Heaft's true status was brought to the attention of authorities when her employer went to update the registration details and found that she was suspended.

Medical Device Printing

'A clarion call for understanding regulatory processes for additive manufacturing in the health sector' by Antonia Horst, Fiona McDonald and Dietmar W. Hutmacher in (2019) 16(5) Expert Review of Medical Devices 405-412 comments

As Additive Manufacturing (AM) in the health sector evolves to the point where products can be translated into the clinic, these manufactured goods need to be assessed by regulators in order for such products to be manufactured, sold, and used in accordance with the law. In this article, the authors argue that if AM products in the health sector are to be regulated in the near future, stakeholders involved in translational research need to understand the challenges faced by both regulators and industry. We portray different points of possible dissonance for AM medical products with existing regulatory frameworks. Hence, we advocate for stakeholders to proactively provide solutions for regulatory processes for products emerging from AM in the health sector.

The authors argue

The regulation of medical products emerging from additive manufacturing (AM) – the term associated with 3D printing in an industry context – in the health sector is an important milestone in the maturation process of the industry. Yet, new technologies often pose challenges for regulators who must determine whether a product is both safe and appropriate for use, as products that emerge from a new technology may (or may not) create different types of harms, risks, and areas of concern. These differences may also illustrate that existing regulatory regimes need to be modernized. 

AM in the health sector is widely reported on in academic, as well as in industry or public media outlets, with manifold (potential) applications. Different applications of AM in the health sector are at different stages on their way to clinical translation: Products containing biological materials, such as cells or growths factors, are mostly at the research stage. On the other hand, some products manufactured through AM that do not contain biological materials are starting to be used in a clinical context and others are seeking regulatory approval. Such products include, for example, surgical equipment, prosthetics, hip and knee prostheses, implants, and other medical devices. These products show variety in their risk and complexity, ranging from low-risk devices, such as surgical planning models, to high-risk devices, such as biodegradable scaffolds (see Figure 1). AM is used to create standard sized (Figure 1), as well as personalized products (Figure3). Nonetheless, only a small number of these types of products are used routinely in clinical practice and have FDA approval and/or CE-Mark at the moment. 

So far, a uniform vocabulary and clear terms have not yet been established to describe different product categories stemming from AM in the health sector. Nevertheless, a clear distinction between different kinds of products is essential when interfacing with regulatory structures, as different product categories may evoke different regulatory pathways. 

While there is an ongoing discussion in the literature about terminology describing different categories of AM in the health and biomedical sector, so far no nomenclature has arisen that is universally accepted by the wider research community. We identify the use of different terms, or the use of the same terms with different underlying meanings, as a potential hindrance when interfacing with regulators. So far, unfortunately, there is a tendency in the literature to discuss ‘3D printing regulation’ or ‘Bioprinting regulation’ without a distinction to what is meant by these terms and which products they shall encompass. We, therefore, use the follow- ing descriptions to categorize the products that are intended for use in the health sector on the basis of the materials used in the manufacturing process: ‘AM in the health sector’ or ‘AM products’. These are used as broad terms, encompassing all aforementioned product categories. To allow for a more detailed discussion, we distinguish between AM containing biological matter in the manufacturing process, in other words, tissue engineered products manufactured using layer by layer techniques, and AM without the use of biological matter but for use in the health sector. This distinction is orientated by the regulatory separation of biological medical products, pharmaceuticals and medical devices, which will be discussed in more detail below. For clarity and simplicity, this article does not consider pharmaceuticals (see Figure 2). 

Although the first AM products, such as biodegradable scaffolds (Figure 1), have been used for more then 10 years in a clinical context, they are only now being translated into routine clinical applications. One identified barrier to this translational stage is uncertainty about how the regulatory frameworks will respond to these new technologies. In academic and research-centered contexts, product regulation is generally not considered, as non-translational research folows different, more lenient sets of rules. Therefore, consumer safety laws, such as medical product regulations, are neither known of nor followed. Although start-up companies and industry are starting to engage with regulators and regulatory processes to understand what the industry could do to assist unobstructed regulatory processes, these considerations remain limited. While the need to interface with regulatory processes is becoming more pressing as industry interest in such products is rising and AM in the health sector matures, there is still uncertainty about when and whether some aspects of AM containing biological matter will get to the stage that they require regulation and even if they will at all.Opinions range from doubting whole organs will ever result from AM processes, predicting ‘printed organs‘ within the next few decades, to describing AM technologies for printing materials containing biological matter as if they were ready for commercialization and routine application in hospitals. This broad range of published viewpoints may result from overly optimistic and sometimes not evidence based reporting by researchers. This conclusion is drawn from the relative abun- dance of appraisals for these applications in the academic literature and wider media, compared with the lack of scientific evidence of such outcomes. Regarding AM products that do not contain biological matter, opinions around the feasibility of this technology to be upscaled as well as what the actual benefits of using this technology may mean in regard to patient recovery, health-care savings, and product development, differ significantly. These uncertainties create further challenges for an industry that needs to urgently prepare for regulation. 

In this article, the authors argue that if AM products in the health sector are to be regulated in the near future, those involved in translational research and the manufacturing process need to understand the challenges faced by regulators, such as the US Food and Drug Administration (FDA) or the Australian Therapeutic Goods Administration (TGA) when dealing with new technologies. The academic and industry stakeholders involved in this area also need to understand the risk profile of the product class or products and their status as being mass produced or customized/personalized. The terminology must be used consistently and standards need to be designed with regulatory processes in mind so that they can function as a logical extension of regulatory processes. We advocate for the wider industry anticipating and being ready with solutions for regulators when they need to adapt regulatory processes to regulate products emerging from AM in the health sector.

Histories

‘Australian Historians and Historiography in the Courtroom’ by Tanya Josev in (2020) 43(3) Melbourne University Law Review comments

This article examines the fascinating, yet often controversial, use of historians’ work and research in the courtroom. In recent times, there has been what might be described as a healthy scepticism from some Australian lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. This article examines some of the similarities and differences in those disciplinary practices in the context of the courts’ engagement with both historians (as expert witnesses) and historiography (as works capable of citation in support of historical facts). The article begins by examining, on a statistical basis, the recent judicial treatment of historians as expert witnesses in the federal courts. It then moves to an examination of the High Court’s treatment of general works of Australian history in aid of the Court making observations about the past. The article argues that the judicial citation of historical works has taken on heightened significance in the post-Mabo and ‘history wars’ eras. It concludes that lasting changes to public and political discourse in Australia in the last 30 years — namely, the effect of the political stratagems that form the ‘culture wars’ — have arguably led to the citation of generalist Australian historiography being stymied in the apex court. 

 Josev states

The role of ‘history’ in the courtroom, and the role of historians in the process of tendering evidence to the court of that history, is an area of study well-trodden by academic lawyers and historians. It is probably safe to say that there is a healthy scepticism from some lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. ‘To enter the courtroom is to do many things, but it is not to do history’, observed medical historian David Rothman. ‘The essential attributes that [historians] treasure most about historical inquiry have to be left outside the door. The scope of analysis is narrowed’. Meanwhile, on the bench, it appears that some judges take the view that, outside of the tendering of archival (and preferably documentary) primary evidence, there is little an historian can do in the courtroom that judges could not do for themselves: ‘I’m not entirely sure what the professional skills of historians bring to [the fact-finding] process, that a lawyer or judge himself or herself wouldn’t be able to bring’, an Australian Federal Court judge remarked under the cloak of anonymity in 2008. That view appeared to be not uncommon amongst some Australian jurisdiction. The (then puisne) High Court Justice Sir Owen Dixon himself saw the need for recourse to historical expertise in certain questions of fact, remarking in Australian Communist Party v Commonwealth that courts ‘may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians’ and ‘for verification refer to standard works of literature and the like’. Despite this directive, explicit reference to general historical works, or to the expert evidence of historians, has only taken on a greater prominence in constitutional litigation since the decision in Cole v Whitfield in 1988, and in native title disputes since Mabo v Queensland [No 2] in 1992. This, of course, should be contrasted against the use of what I loosely call doctrinal historiography, which has enjoyed a long and perhaps almost uncritical adoption in the Australian courtroom — this will be briefly dealt with later in this article. The modest expansion in the use of ‘history’ in the Australian courtroom has brought with it some difficulties for both judge and historian — most particularly, how to treat the testimony of an historian as a fact-finder and interpreter of evidence, when those very tasks will inevitably be revisited by the judge as the ultimate fact-finder? If so, what special expertise does an historian offer? 

This article does not concern itself with the specific debates in constitutional democracies (including Australia) about the ‘dead hand’ of the law versus a ‘living tree’ perspective and the attendant questions about how history might be applied in both approaches. Instead, it focuses on the broader issue of how history at large is being used or cited in the Australian federal courts at present. It first examines the manner in which the federal judiciary treats the evidence of historians as expert witnesses (that is, experts that offer to the court, in Dixon’s terms, the ‘facts of history’), particularly in light of the flurry of critical attention given to judicial practices following the Cubillo v Commonwealth [No 2] decision in 2000. The article then moves to evaluate how the High Court in particular treats general Australian historiography. In recent times, there has been increased public scrutiny of generalist Australian works of history, particularly in light of the ‘history wars’, a set of partisan stratagems that have been employed and re-employed regularly in public discourse since the late 1990s. I conclude here that lasting changes to public and political discourse in Australia in the last 30 years have taken their toll on the public perception of the courts and the practice of history, and that, as a result, early (but incomplete) evidence shows that the High Court displays great caution in citing general works of Australian history.

Identities

Given my ongoing interest in CV padding and identity crime I note the latest questions about claims by Sapan Desai of Surgisphere.

The Guardian today comments

 Claims made by Desai about his qualifications gained since his medical degree have been called into doubt, including his claims to hold two PhDs, a master’s, and affiliations with major universities and colleges. Some of these affiliations have now been removed from his website and online profiles. ... According to online profiles, Desai, who is now 41, has had an extraordinary and varied career. In 2010 the online encyclopedia Wikipedia flagged his page for deletion after editors raised queries about his accomplishments. 

“If half of the claims in this article are true, this is indeed an exceptional young man,” one website editor wrote of Desai, who at the time was 31. “However, exceptional does not necessarily equal notable. Most claims are unsourced or sourced to the subject’s own websites. Many claims are over the top.” 

As well as holding at least one PhD, a medical degree and working as a vascular surgeon, Desai has also founded several companies including Surgisphere and a charity. His claims (on the deleted Wikipedia page) of having a second PhD and a Juris Doctor, or law degree, could not be independently verified by the Guardian and Desai did not respond to questions about this. 

His biography also says he completed his master’s of business administration in healthcare management at Western Governors University. The university did not respond to requests for confirmation of this MBA. But according to the university archive he gave a speech to a graduation of university students in 2012, telling them: “Nothing that is easy is worthwhile. Because at the end of the struggle is a fountain that never stops, a fountain that showers us with the twin gifts of knowledge and wisdom.” 

In a video he made for a crowdfunding campaign to support a product he designed, described as a “wearable neural induction device”, Desai said he also held a PhD in neuroscience. The device, which Desai boasted could increase brain function and creativity, never came to fruition. The Guardian could find no other record of his having neuroscience qualifications and Desai did not respond to questions about this.

Closer to home a media release from the WA Department of Mines, Industry Regulation & Safety  last month states

Mental health consumers warned about man masquerading as a psychologist (Tyson John Vacher / John Vacher Psychology) 

Consumers seeking mental health services are being warned about a North Fremantle man who is masquerading as a psychologist. 

Tyson John Vacher, aka Dr John Vacher and trading as John Vacher Psychology, has been making false or misleading statements on his website jvpsychology (dot) com regarding his experience and qualifications. 

Mr Vacher has stated on his website jvpsychology dot com that he is a member of the Australian Counsellors’ Association and has 10 years’ experience, neither of which is true. 

Listings on other websites also claimed Mr Vacher has a PhD and a qualification from the University of Southern Queensland, which are not true. 

Commissioner for Consumer Protection Lanie Chopping expressed concern that vulnerable people suffering from mental health issues may be duped and not get the expert treatment they need. 

“It’s alarming to me that someone with no qualifications or experience as a practising psychologist should be offering professional help to people who may be suffering from depression, anxiety, sexual abuse trauma or other mental health issues,” Ms Chopping said. 

“Our investigation into Mr Vacher has confirmed that he does not hold the formal qualifications in psychology that he claims and his assertion of having ten years’ experience is ridiculous considering he is only 23 years old.”

In 2021 Vacher received a community corrections order after pleading guilty to two health-related fraud offences and three charges related to the forging of a Bachelor of Laws testamur from the University of Southern Queensland. He'd used the forged law qualification for applications to enrol in three different tertiary institutions. His lawyer is reported as stating that Vacher is "remorseful", is now pursuing his professional ambitions "in the correct way" and has been accepted into a Masters of Counselling degree.

Pleading

Lytras v The Queen [2020] VSCA 150 is of interest to law students studying pleadings and professional competence.

The Court states

[21] The plea conducted on the applicant’s behalf by his then counsel was, to put it mildly, not a shining example of the advocate’s art. 

[22] After pointing out that the applicant had supporters in court, and telling the judge that he had a number of references for the judge to look at, counsel for the applicant commenced his submissions by making the somewhat remarkable submission that he was instructed to seek ‘four with a two, and then with a cocktail of a CCO, which is based on Boulton’s case’. In other words, counsel was seeking a sentence of four years’ imprisonment, with a non-parole period of two years, to be combined with a community correction order (‘CCO’) of 18 months’ duration, the CCO being justified by Boulton.  When the judge pointed out, first, that he was limited to a sentence of 12 months’ imprisonment combined with a CCO; and, secondly, that the quantity of drugs was such that ‘you’re not within cooee of a cocktail’ (that is, a long way from a combined sentence of imprisonment and a CCO), counsel made the equally remarkable submission: ‘I accept that, Your Honour. I mean, I’m going on instructions’. 

[23] Counsel competently presenting a plea in mitigation would not have suggested to the judge the length of any sentence of imprisonment deemed to be ‘within the range’, and certainly would not have stated that a head sentence of four years’ imprisonment could be combined with a CCO. Further, in a competently conducted plea counsel would not have suggested that it was possible to fix a non- parole period with a CCO. Plainly, it was no answer to these shortcomings for counsel to offer the excuse that he was ‘going on instructions’. Counsel had a duty to be familiar with the applicable legislative provisions and sentencing principles, so as not only to be in a position adequately to assist the court, but so as to ensure that error was avoided. It was a breach of the duty that counsel owed to the court to advance sentencing submissions that plainly were wrong — based on clearly erroneous instructions — to the sentencing judge. 

[24] After that less than promising start, counsel tendered a bundle of character references (Exhibit 2), and a bundle of certificates showing the courses that the applicant had completed whilst in custody (Exhibit 3). Counsel told the judge that the applicant had been a ‘pioneer’ within the prison community, ‘to support prisoners in need’. Having informed the judge that the applicant had written out his life history in ‘very legible handwriting’, counsel tendered the document (Exhibit 4) — some 16 pages — and asked the judge to take it into chambers and read it with the references. Counsel made no attempt, however, to take the judge through the salient aspects of the applicant’s history, let alone highlight those matters revealed in the document that went in mitigation of penalty. 

[25] The judge then asked counsel a series of questions in an obvious effort to be apprised of the applicant’s antecedents, but got little information in response. When the judge then sought information from counsel about the applicant’s prior convictions, counsel said: ‘Well, his priors, yes, they speak for themselves, Your Honour’. Counsel then told the judge that businesses that the applicant ran with his partner had become ‘lost’, and, since the applicant had been in custody for two years, his life ‘was really in ruins’. 

[26] After then tendering a number of urine testing certificates, showing that the applicant had abstained from drugs in custody (Exhibit 6), counsel submitted that the applicant’s ‘prospects of rehabilitation are, at the moment, excellent’, and that he has ‘that ongoing family support, and together with the fact he wants to have a more meaningful relationship with those of his children that he’ll be able to be reunited with when he’s outside’. Counsel told the judge that the applicant wanted to be a drug counsellor when released. 

[27] Towards the end of counsel’s plea — such as it was — the judge remarked: All I can tell you is, it’s clearly serious behaviour, and I haven’t yet determined the appropriate sentence. I’ve got to read all the material, and take into account the mitigating factors, of which there seem to be primarily two. One his plea, for what it’s worth, the utilitarian value. And secondly the steps he’s taken to further his rehabilitation in custody.

In considering grounds of appeal the Court states

Ground 2: Incompetence of counsel 

[35] It is convenient to turn first to ground 2, which complains that ‘the sentencing discretion miscarried as a consequence of the applicant’s representation at the plea hearing being incompetent, such that the applicant was materially and unfairly disadvantaged’. It cannot be gainsaid that aspects of the plea by the applicant’s counsel were incompetent. His failure to have a basic grasp of elementary facets of relevant sentencing law was inexcusable. This Court’s intervention — assuming leave to appeal is granted — is only warranted, however, if ‘there is an error in the sentence first imposed’ and ‘a different sentence should be imposed’.

[36] In this Court, counsel for the applicant submitted that counsel who presented the plea did not address ‘what appeared to be a history of potentially serious mental health concerns’ set out in the applicant’s handwritten history. Further, despite this history, counsel on the plea accepted the sentencing judge’s summary that there were only two matters in mitigation, being the applicant’s ‘plea of guilty, for what it’s worth, the utilitarian value’; and prospects of rehabilitation, including the steps taken towards rehabilitation in custody, coupled with ongoing family support.

[37] Counsel for the respondent submitted that appellate intervention is not justified. In written submissions it was contended that the applicant’s handwritten material comprehensively set out his personal history, including his abuse of drugs and alcohol. And though in oral submissions counsel for the respondent said that it ‘must be acknowledged that the conduct of the plea was unsatisfactory’, he nonetheless argued that nothing in the sentencing remarks suggests that counsel’s incompetence led to any error in the sentence imposed. 

[38] Recognising that there may be cases in which it might be concluded that the failure to put relevant material in mitigation before a sentencing court on a plea leads to there being ‘an error in the sentence first imposed’, this case is not an appropriate vehicle in which to consider circumstances where the incompetent conduct of a plea by counsel might lead an appellate court to determine that there was an error in the sentence imposed as a result of that incompetence. Although in the exercise of his duties to his client, and to the court, counsel should have done a great deal more to present even a barely adequate plea, the judge had before him in written form some material going in mitigation of penalty, which, no doubt, he read and considered.

[39] In those circumstances, we would not grant leave to appeal on the first ground. Obviously enough, however, this should not be taken as any form of acceptance, tacit or otherwise, on our part, of the manner in which this plea was conducted.

Fakes

R v Evelyn [2020] QSC 097 offers an illustration of identity crime. It deals with a drug trafficker  found in possession of a large amount of fake drivers licences and fraudulent credit cards in the names of dozens of victims.

Evelyn was sentenced with 12 years and 5 months' imprisonment over 97 offences, including 10 offences relating to possessing tainted property, dealing with another entity's identity and fraud.

The judgment states

[2] In all, there are 97 offences for which sentences were imposed. The period of offending began on a date between 11 May 2016 and 12 June 2016 and ended on 12 December 2018. The range of offences is extensive, but can be described as falling into two categories. First, there are 37 drug offences, the most serious of which are two trafficking offences for a period of slightly in excess five weeks and approximately 8 months later for a period just under four weeks. The maximum penalty for the trafficking offences is 25 years’ imprisonment 

[3] Second, there are 51 offences of fraud or dishonesty, of which the most serious is an offence of fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 over a period of slightly in excess of ten months. The maximum penalty for fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 is 14 years’ imprisonment.

Under a search warrant Police on 25 November during a search of Evelyn's unit located 'a cache of identity documents that the defendant had received being ID cards and bank cards that had been stolen from 18 different victims'. A search on 13 December disclosed more drugs and 'a quantity of documentation in the name of other persons consisting of personal bank records, traffic infringement notices and registration renewals for vehicles'.

In dealing with the identity crime the judgment states

[14] On 13 January 2017, the defendant used one Martin Drennan’s identification information to send an online submission to open a bank account with the ANZ bank. 

[15] Between 17 January 2017 and 9 March 2017, the defendant received the driver’s licence of one Simon Goodburn, which was stolen. 

[16] On 27 January 2017, the defendant entered into a rental agreement with Budget Rent-a- Car, Surfers Paradise. The defendant rented a car and agreed to return it on 11 February 2017 but did not do so. [17] Between 18 February 2017 and 9 March 2017, the defendant received a driver’s licence of one Jordan Keras, which was stolen. 

[18] Between 18 February 2017 and 9 March 2017, the defendant received a driver’s licence of one Hideaki Takayama, which was stolen. 

[19] On 28 February 2017, police attended the basement carpark of the defendant’s address and located the car which had stolen registration plates affixed to it. 

[20] On 8 March 2017, the defendant received tainted property being a Medicare card in the name of Martin Drennan. ... 

Where did the value go?

[25] On 15 July 2017, the defendant entered Europcar vehicle rentals at Brisbane Airport, presented a driver’s licence in the name of Ivor Hodgson and signed a rental agreement in Hodgson’s name to hire a Mercedes Benz. The defendant paid $510.83 with an American Express card in Hodgson’s name (“Hodgson Amex card”). 

[26] On 15 July 2017, the defendant attended at the DFO Eagle Farm and Coles Express Brisbane Airport and made purchases using the Hodgson Amex card being $30.97 at Coles Express, $69.95 at Country Road and $253.63 at Calvin Klein. 

[27] On 18 July 2017, the defendant attended Coles supermarket at Ann Street, Gatton and made purchases using the Hodgson Amex card in the amounts of $51.75 and $28.50.  

[28] On 19 July 2017, the defendant attended Coles Express Brisbane Airport and made a purchase of $48.80 using the Hodgson Amex card. 

[29] On 18 August 2017, the defendant attended Woolworths supermarket Surfer’s Paradise and made a purchase of $9.55 using the Hodgson Amex card. 

[30] On 19 August 2017, the defendant attended Officeworks and 7-Eleven in Morayfield and made purchases of $59.00 at Officeworks and $23.27 at 7-Eleven using the Hodgson Amex card. 

[31] On 19 August 2017, the defendant attended Woolworths supermarket Carindale and made two purchases in amounts of $23.85 and $60.79 using the Hodgson Amex card 

[32] On 19 August 2017, the defendant attended the Coles Express Nudgee and made a purchase of $26.74 using the Hodgson Amex card. 

The judgment continues -

[33] On various dates between 5 November 2016 and 11 October 2017, the defendant obtained and used driver’s licence data and other personal information relating to 123 different complainants for the purpose of making fraudulent applications to finance companies, banks and telecommunication companies in order to secure finance, credit cards or phones in their names. 

[34] Also, on various days between 1 January 2017 and 11 October 2017, the defendant used the identities of 29 complainants and made online applications to finance companies, banks and telecommunication companies in order to secure finance, credit cards or phones in their names. 67 of the applications were successful. 77 of the applications previously referred to were rejected. 

[35] The value of the successful applications was $58,820.13 

[36] Further, during this period, the defendant forged a number of documents in the name of one Clive Thompson, including a Queensland driver’s licence, an RACV credit application, an Energy Australia account statement, a Westpac Banking Corporation (“Westpac”) statement and a Queensland Transport driver’s licence change of address application. 

[37] On 4 August 2017, the defendant lodged the forged RACV credit application in the name of Clive Thompson with a credit provider. On that day, the defendant obtained an Audi sedan purchased in the name of Clive Thompson from the Audi Centre on the Gold Coast using the forged RACV credit application. The value of the Audi was $42,660.95. 

[38] On 4 August 2017, the defendant thereby broke a condition of a bail undertaking he entered into on 20 March 2017 by going to the Gold Coast City Council area other than for the purpose of visiting his solicitors or to attend court. 

[39] On 8 August 2017, the defendant similarly breached that bail condition. 

[40] On a date between 1 April 2017 and 11 October 2017, the defendant obtained a gold chain from Shiels Jewellers dishonestly. The value of the gold chain was $5,000. 

[41] On 1 September 2017, the defendant made four fraudulent withdrawals from the Commonwealth Bank account of one Mandy Turner in the total amount of $702. 

[42] On 25 July, 17 August, and 25 September 2017, the defendant made three fraudulent withdrawals from the Westpac bank account of Wiston Smitt in the amount of $1,476. 

[43] On 10 October 2018, the defendant obtained and used Wayne John Ward’s identification information to obtain a Visa card from St. George bank in that name, and to hire and book a room at the Oaks Hotel in Brisbane City. 

[44] Between 5 November 2018 and 12 December 2018, the defendant removed an electronic monitoring device which was fitted to his leg on 14 July 2018, thereby damaging it. 

[45] On 7 November 2018, upon or after removal of the device, the defendant was unlawfully at large. 

[46] On 7 November 2018 the defendant breached a condition of a bail undertaking entered into by him on 2 July 2018 requiring him to reside at an address approved by the Director of Public Prosecutions. 

[47] On 26 November 2018, the defendant was required to attend the Southport Magistrates Court and failed to appear. 

[48] On 7 November 2018, the defendant was required to attend the Supreme Court at Brisbane and failed to appear. 

[49] On 6 December 2018, the defendant impersonated one Dominic Nastasi and used a falsified driver’s licence as proof of his identification as that person to hire a car from Thrifty Car and Truck Rentals. 

[50] On 6 December 2018, the defendant used a Bank of Melbourne Visa card he fraudulently obtained in the name of Dominic Nastasi (“Nasatasi Visa card”) to pay a fee of $1,836 for the hire car from Thrift Car and Truck Rental. 

[51] On 12 December 2018, police executed a search warrant at a room occupied by the defendant at Peppers Resort Broadbeach. They located 8 clip seal bags containing 13.628 grams of methylamphetamine by pure weight and 0.852 grams of MDMA by pure weight. 

[52] They also located two bottles containing remnants of liquid tested as 1, 4-Butanediol. 

[53] On 12 December 2018, the defendant was occupying the room at Peppers Resort Broadbeach booked under the name of Dominic Nastasi for which he had paid a $200 deposit using the Nastasi visa card.

In Jerrim v Smith [2020] TASMC 6 Smith had been charged under Police Service Act 2003 (Tas) s 78 with impersonating a police officer: 'You are charged with on 7 May 2016 at Pontville in Tasmania, not being a police officer and you did without lawful excuse, have in your possession a badge that resembled a police badge namely, you had a police badge wired into your wallet, resembling a police issue warrant card.'

The judgment states

 At the beginning of the hearing in March 2020 Mr Cangelosi, counsel for the defendant, sought to have the complaint struck out on the basis that it did not contain a valid charge in that the complaint omitted an essential element of the offence. Prosecution gave notice to seek to amend the complaint. Both counsel agreed that the time in which a valid complaint of impersonating a police officer in May 2000 could be laid had now expired. 

The relevant section of the Police Service Act 2003 which creates the offence of impersonation of a police officer states:-

78. Impersonation 

A person who is not a police officer must not do any of the following without lawful excuse or the approval of the Commissioner: 

(a) ...; 

(b) wear or have in possession any uniform or badge that resembles, or is likely to be perceived as, a police uniform or badge; ....

That section provides two limbs to the charge of impersonation each of which must be satisfied in order to constitute the offence. They are that the person not a police officer does any of the matters listed: a) without lawful excuse; and b) without the approval of the Commissioner. 

In order to succeed in any prosecution, on this charge, the prosecution must prove both elements of the charge, that is, both a lack of lawful excuse and a lack of approval by the Commissioner. The burden of proof is upon the prosecution to prove both elements of the charge, beyond reasonable doubt, and the failure to do so will result in an acquittal. 

If the police did not prove that the defendant did not have the Commissioner's permission to have in his possession the police badge the charge of impersonation of a police officer would fail. There is no evidential onus upon the defendant adduce evidence that he had the Commissioner's permission. 

The central issue to be determined by the Court is whether or not the complaint as drafted is defective because it discloses no offence because it did not include words similar to "or the approval of the Commissioner" so that the complaint read something similar to: “You are charged with on 7 May 2016 at Pontville in Tasmania, not being a police officer and you did without lawful excuse or the approval of the Commissioner have in your possession a badge that resembled a police badge.....”.

Regulatory Incapacity

'Mortgage Broking, Regulatory Failure and Statutory Design' by Jeannie Marie Paterson and Elise Bant in (2020) 31(1) Journal of Banking and Finance Law and Practice comments

 The Royal Commission into Misconduct in the Banking, Insurance and Financial Services Industry and the Productivity Commission Report into Banking raised questions about the quality of the service provided by mortgage brokers to consumers and recommended far-reaching changes to the way in which the mortgage broking industry is regulated. In response, the Commonwealth Government has recently introduced a “best interests” duty and tighter regulation of commissions. This new regime has potentially far-reaching significance, as the broking industry itself is at the threshold of considerable technological change prompted by the introduction of the Open Banking’s initiative. This article assesses the reforms in terms of: (1) efficacy in improving the quality of the service provided by mortgage brokers; (2) fit with the existing regime, including insights from fiduciary law; and (3) flexibility in adapting to technological innovation. It aims to highlight the importance of good legislative design in responding to concerns about the effective functioning of a regulated market. 

The same issue features 'Trust, Social Licence and Regulation: Lessons from the Hayne Royal Commission' by Anne Matthew, offering

 a critical approach to examining key findings of the Hayne Royal Commission, using institutional theory as a lens. Institutional theory positions the social contract within its understanding of laws, rules and norms. It is argued that the Royal Commission’s recommendations calling for a stronger regulatory response and simplification of the law are supported by institutional theory. Enforcement and simplification can provide clarity that the law is in fact a rule of the game and ensure that the institutional rules are in a strong position to influence behaviour. The role of the regulator in this process is pivotal.

'Product Intervention Power: An Extra Layer of Protection to Consumers' by Marina Nehme, comments

 In April 2019, the Australian Securities and Investment Commission (ASIC) was provided with the power to issue product intervention orders – that is, where a financial services/credit product available to retail clients/consumers has caused, will cause or is likely to cause a significant consumer detriment, ASIC may “regulate, or if necessary, ban” that product. The Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019 (Cth) also empowers ASIC with design and distribution powers for financial services/credit products; this power will come into effect in April 2021. These powers have been on the horizon since the Financial System Inquiry in 2014, which hoped that product intervention powers (PIPs) might help to “build consumer confidence and trust in the financial system”. This aim remains urgent, particularly following well-publicised findings by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry of poor and even illegal practices in the financial industry. This article analyses these reforms with the aim of understanding the extent to which PIPs might enhance the regulatory regime and promote consumer trust.

Victoria Stace's  'Consumer Lending by New Zealand Banks After the Royal Commission – Business as Usual or More Responsibility Required?' comments

This article looks at the question of whether banks in New Zealand – which are for the most part wholly owned subsidiaries of Australian banks – would be acting in breach of New Zealand’s responsible lending laws if they engage in certain conduct that was found by the Australian Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry to be in breach of the Australian responsible lending laws. This involves considering the differences between the responsible lending laws in each jurisdiction, and assessing whether the conduct identified by the Royal Commission to be in breach of Australian laws would contravene New Zealand’s equivalent laws. The article focuses on the lender’s obligation to assess whether the proposed credit will cause the borrower substantial hardship, as this was a particular focus of the Royal Commission.

Steve Kourabas's 'Prudential Regulation in Australia and the Banking Royal Commission: A Missed Opportunity for Reform?' argues

The global financial crisis (GFC) revealed fundamental regulatory weaknesses in many of the world’s leading financial jurisdictions. In particular, there was a lack of attention to risks of a systemic nature. Post-GFC regulatory reforms in many of the world’s leading financial jurisdictions have sought to address this problem through the introduction of regulation that emphasises the systemic nature of financial risk as well as changes to regulatory structures. However, Australian policy-makers and regulators have tended to focus more on market conduct and consumer protection matters as evidenced during the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. This article argues that the secondary status of systemic financial stability as a regulatory concern in Australia following the GFC undermines the centrality of systemic financial stability as a regulatory goal. The article proposes a number of reforms that have been introduced in jurisdictions such as the United Kingdom to give effect to global best practice following the GFC and that have as their key aim the maintenance of systemic financial stability.

'Role and Effectiveness of ASIC Compared with the SEC: Shedding Light on Regulation and Enforcement in the United States and Australia' by Zehra G Kavame Eroglu and KE Powell  comments

The Australian Securities and Investments Commission’s (ASIC) regulatory oversight of securities and financial markets has increased considerably over time. However, the wisdom of this model has recently been challenged by the Hayne Royal Commission as ASIC’s enforcement activities were found to be relatively toothless. Accordingly, many criticised the agency and called for further ASIC reform. After the Global Financial Crisis, the US Securities and Exchange Commission (SEC) faced similar criticisms of regulatory failure. As such, this article analyses the SEC regulatory structure, enforcement activities and governmental resources, and compares certain indicators of effectiveness with those of ASIC over the past quarter-century. By comparing ASIC with the world’s biggest capital market regulator this article analyses the viability of further reform of ASIC and argues that ASIC is woefully under-resourced to engage in increased enforcement action.