14 March 2024

Regulation

In Medical Board of Australia v Chu (Review and Regulation) [2024] VCAT 89 the Tribunal states 

With the agreement of the respondent, the Tribunal finds as follows: Between 20 January 2018 and 18 October 2018, contrary to section 82(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’), the respondent obtained financial advantage by deception by billing private health insurers in the amount of $24,005.75. Between on or about June 2016 and February 2018, the respondent improperly accessed, stored and used clinical records of patients at the Jesse McPherson Hospital without any therapeutic purpose and for the purpose of gaining financial advantage by deception. On or about 15 July 2019, the respondent responded untruthfully to the allegations raised by Monash Health concerning his billing of insurers for providing assistant surgery services which occurred from on or about 8 June 2016 and 4 February 2018. Between on or about 18 May 2020 and 25 May 2020, contrary to section 130(1) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), the respondent failed to notify the applicant of a relevant event within seven (7) days, namely that he had been charged with an offence punishable by 12 months imprisonment or more. The conduct described in findings 1 to 4, when considered together, was professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (c) of section 5 of the Health Practitioner National Law (Victoria) Act 2009.

The consequent Orders are  

Pursuant to the Health Practitioner National Law (Victoria) Act 2009 (‘National Law’), the Tribunal orders: Under section 196(2)(a) of the National Law, Dr Alex Po Tsun Chu is reprimanded. Under section 196(2)(d) of the National Law, Dr Alex Po Tsun Chu’s registration as a medical practitioner is suspended for a period of six months from the date of this order. Under section 196(2)(b) of the National Law, conditions be imposed on Dr Alex Po Tsun Chu’s registration as follows: Undertake education 

(a) The Practitioner must undertake and successfully complete a program of education, approved by the Medical Board of Australia (Board) and including a reflective practice report, in relation: (1) the principles of ethical professional conduct, including in relation to: (A) billing practices with respect to third party providers including the Victorian Workcover Authority, the Transport Accident Commission and Medicare; and (B) the requirement for professional behaviour as required by s 8 of the Good Medical Practice: A Code of Conduct for Doctors in Australia, including the requirement to be honest and not misleading in preparing documentation as required by sub-s 8.8; (2) the consequences of unethical professional conduct, including in relation to unethical billing practices and the adverse impact on the reputation of the medical profession and patient trust. (a) The education must consist of a minimum number of six (6) hours completed over a six (6) month period. 

(b) The Practitioner must complete the education within six (6) months of the notice of the Board’s approval of the education. 

(c) Within 14 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN11): (1) nominate a person(s) to be approved by the Board to act as educator; and (2) provide acknowledgement that Ahpra will obtain a report from the approved educator at the conclusion of the education. 

(e) The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed. 

(f) Within 30 days of the completion of the education, the Practitioner is to provide: (1) Evidence of successful completion of the education. (2) A report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition requiring they undertake education and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner’s practice.

13 March 2024

Hotpot

In Zhang v The First Org Ltd (Strike Out) [2024] NZHRRT 11 the NZ Human Rights Review Tribunal has considered a claim of indirect marital status discrimination in relation to the serving of hotpot. 

The Tribunal states 

[1] Red Hill Restaurant (Red Hill) serves hotpot. On its menu Red Hill specifies that a minimum of two diners are required to order this dish. Mr Zhang alleges that this requirement or policy amounts to indirect marital status discrimination as it is less likely that a single person would be dining with another person who is prepared to share the cost of a hotpot meal. 

[2] Mr Zhang accepted that a person dining alone can still order hotpot but is required to pay the same price for that dish which is designed to be shared by (at least) two people. However, he says that charging a person eating alone the same price as two people eating hotpot is not justified. He said that previously he had been able to purchase hotpot for one at Red Hill and accepted that charging a bit over half the price for two diners would be justified (and therefore not discriminatory). 

[3] Red Hill denied that its actions were discriminatory. It said that the policy applied to everyone and was not limited to customers with a particular marital status. It admitted that it had previously allowed one paying customer to purchase a single portion of hotpot for less than the price of the menu item. However, in his affidavit supporting the application, Yutian Liu said that due to rising costs it was not economical for Red Hill to prepare a hotpot for one paying customer only. 

[4] Red Hill applied to strike out the claim on the basis that it: [4.1] Disclosed no reasonable cause of action; [4.2] Was frivolous, because the policy was common to many restaurants and because Mr Zhang’s essential complaint was about the quantum of the additional charge paid for those eating alone rather than discrimination per se; [4.3] Was vexatious, because it was brought to annoy or irritate Red Hill after it changed its policy; and [4.4] Was an abuse of process because it was manifestly groundless and without foundation. 

[5] Red Hill further argued that it would not be inappropriate to strike out the proceeding as there was no reasonable prospect of success, and that Mr Zhang’s right of access to the Tribunal was outweighed by the desirability of freeing Red Hill from the burden of defending groundless litigation. 

[6] The application is being dealt with on the papers pursuant to s 104(4A) of the Human Rights Act 1993 (HRA). The parties were given an opportunity to comment on whether it should be dealt with in this way and neither raised any objection. ... 

[14] The prohibition against discrimination in the provision of restaurant services is set out in s 44 of the HRA. 44 Provision of goods and services (1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public— (a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or (b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,— 

[15] Given the definition of marital status in s 21(1)(b) of the HRA, we have taken the status of single to be those who are not married, in a civil union or in a de facto relationship. 

[16] Mr Zhang accepts that Red Hill did not decline to provide hotpot to him because he is single. Nor does he claim it directly treated him less favourably for that reason. Rather his claim is its charging policy has the effect of treating him differently and is indirectly discriminatory by virtue of s 65 of the HRA. 

[17] The prohibition against indirect discrimination in s 65 reads: 65 Indirect discrimination Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part has the effect of treating a person or group of persons differently on 1 of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it. 

[18] That section has been described by the Court of Appeal decision in Ngaronoa v Attorney-General in the following terms:  [119] Indirect discrimination under s 65 of the Human Rights Act can arise when a criterion in a law or policy, which is not on its face discriminatory, corresponds to a feature (or lack thereof) of all or part of a group and results in that group being treated differently on a prohibited ground. A Canadian example we will refer to is a policy in a public health system which does not fund the provision of translation services to deaf patients who could otherwise use state care. The provision did not mention deafness, and did not explicitly exclude deaf patients from the benefit of state care, but a failure to provide translation services to deaf patients effectively denied them equal access to important benefits that were available to other persons who were not deaf. … 

[19] The issues the Tribunal needs to consider are: [19.1] Does the indirect discrimination claim disclose a reasonable cause of action? and [19.2] Is the claim frivolous or vexatious? 

[20] We first consider whether the claim is frivolous. 

[21] The right to be free from discrimination is a fundamental human right. To avoid trivialising the non-discrimination right, the disadvantage arising from differential treatment, when viewed in context, must not be theoretical, innocuous or de minimus. 

[22] In this case, while Red Hill’s menu states that the hotpot for the specified price is for a minimum of two people, the plain inference is that when hotpot is ordered the diner will receive sufficient food for two people in return for the price payable. If anyone wants to order that quantity of hotpot for that price, there is no prohibition preventing any diner from doing so. Had Red Hill simply set out the price for hotpot, no exception could be taken. Any discrimination alleged is therefore merely theoretical and does not give rise to material disadvantage. 

[23] As a person dining alone, Mr Zhang objects to paying the full price for a serving of hotpot. He claims that he should be able to order a single portion of hotpot in return for which he agrees it is reasonable to pay more than half the price of the minimum two- person portion on offer. Given Mr Zhang accepted it would be appropriate to charge some additional amount for an individual serving size of hotpot, Red Hill argued that Mr Zhang’s principal complaint is about the amount he is required to pay, rather than about discrimination per se and is frivolous for this reason. 

[24] We agree that the essence of this claim is about the minimum charge for a serving of hotpot and how large that serving should be. For Mr Zhang to claim that the non- discrimination right is engaged by this question trivialises the right’s importance. 

[25] The claim’s overreach is demonstrated by the fact that, if successful, it would permit members of other groups such as Pacific people and Māori who are more likely to be on a lower income than the national average,  or women who are more likely to be on a  lower income than men, to also allege that restaurants which fail to serve them smaller portions of food at lower prices amounts to discrimination.   Further, while any commercial justification put forward by the restaurant would likely prevail, restaurant owners would still face the burden of responding to such claims (as would the Tribunal). 

[26] Mr Zhang’s claim lacks the seriousness necessary for it to proceed to trial. Having reached that decision, we consider the claim should be struck out on the ground that it is frivolous. 

27] Having struck the claim out on this basis, it is unnecessary to consider whether the claim is also vexatious because it was designed to annoy or irritate Red Hill after it changed its policy. 

[28] For completeness, however, we consider whether the claim should be struck out on the basis that it fails to disclose a reasonable cause of action. 

[31] Mr Zhang’s claim contains no particulars to support his contention that Red Hill’s policy regarding the two-person minimum price for a hotpot disproportionately affects those who are single or that it imposes a material disadvantage on single diners. Instead, the claim proceeds on the assumption that this is the case. We do not consider this is an appropriate matter over which to take judicial notice.

Weeds

In Redland City Council v Kozik [2024] HCA 7 Gageler CJ and Jagot J. state   

 1 In the Preface to the second edition of Mason and Carter's Restitution Law in Australia, the authors referred metaphorically to the "restitution common of the law" being "tended by judges". They encouraged preparedness on the part of judges to "tear out weeds, however ancient". In the factual circumstances giving rise to the present case, Redland City Council ("the Council") tore out actual weeds from part of the actual common – in the form of waterways – within its local government area. The Council also dredged and removed silt, rubbish, and debris from the waterways, repaired revetment walls protecting the banks of the waterways from erosion and preventing subsidence, and improved the quality of the water in the waterways ("the works"). 

2 The Council was required to undertake the works in the discharge of its statutory functions as a local government authority under the Local Government Act 2009 (Qld) ("the Local Government Act") and the Coastal Protection and Management Act 1995 (Qld) ("the Coastal Protection and Management Act"). The Council also had a statutory entitlement to fund the works by levying "special charges" under the Local Government Act on land in its local government area which specially benefited from the works. 

3 The Council in fact funded part of the overall cost of the works by purporting to levy special charges on land which adjoined the land on and waters in which the works were carried out. The Council funded the balance of the costs of the works from its general revenue. 

4 After the Council had completed the works, it discovered that it had failed to comply with a condition of the prescribed process for the levying of special charges under the Local Government Act, as a consequence of which its levying of the special charges was invalid. The Council refunded to landowners so much of the total amount invalidly levied on and paid by them as remained unspent, but it refused to refund so much as it had spent on the works. 

5 Representatives of a group of landowners who had paid the invalidly levied special charges ("the Landowners") brought a proceeding in the Supreme Court of Queensland against the Council for recovery of the unrefunded portion of the amount of the special charges each had paid. Their claim was put on alternative bases. First, it was put as a claim to a statutory debt due by way of refund under regulations made under the Local Government Act providing for the return of "special rates or charges incorrectly levied". Second, it was put as a common law claim in restitution for moneys paid under a mistake of law. 

6 By way of defence (and counterclaim for a negative declaration), the Council pleaded that the claim was defeated by each Landowner having received a "direct and comparable benefit" from the Council in connection with the payment of the special charges because of the Council undertaking the works. 

7 The parties agreed on stating common questions for determination in the proceeding. The primary judge (Bradley J) made orders which answered each of those questions. The effect of the primary judge's answers was that the Landowners succeeded in their claim to a statutory debt but failed in their claim in restitution at common law. 

8 On appeal and cross appeal, the Court of Appeal of the Supreme Court of Queensland (McMurdo JA and Bodice J, Callaghan J dissenting in part) substituted different answers. The effect of the answers as substituted was that the Landowners failed in their claim to a statutory debt but succeeded in their claim in restitution at common law. 

9 In answering the common questions, the primary judge made three important findings. These findings were not disturbed on appeal to the Court of Appeal and were not sought to be disturbed in this Court. The first finding was that each Landowner paid the special charges in the mistaken belief that the Landowner had a legal obligation to do so. The second finding was that the land of each Landowner specially benefited from the undertaking of the works. One benefit was both quantifiable and quantified: an increase in the value of the land (or a prevented diminution of value) of at least one to two per cent, an amount which greatly exceeded the amount mistakenly paid by the Landowner as special charges. Another benefit was unquantified even if quantifiable: an increase in visual amenity. The third important finding was that the special benefit to each Landowner resulting from the works was sufficient to render each Landowner's land "susceptible" to the levy of special charges under the Local Government Act. 

10 The Council appeals by special leave from so much of the orders of the Court of Appeal as substituted answers to the effect that the Landowners succeeded in their claim in restitution at common law. For their part, the Landowners seek special leave to cross appeal from so much of those orders as substituted answers to the effect that the Landowners failed in their claim to a statutory debt. 

11 The proposed cross appeal depends on discrete issues of statutory construction which would render the appeal moot if resolved in the Landowners' favour. For that reason, it is appropriate for special leave to cross appeal to be granted and for the cross appeal to be considered in advance of the appeal. Adopting that course, we would dismiss the Landowners' cross appeal and allow the Council's appeal. 

12 We consider that the answers substituted by the Court of Appeal to the effect that the Landowners failed in their claim to a statutory debt were right. On the proper construction of the regulations made under the Local Government Act, providing for the return of special charges incorrectly levied, the Landowners are not entitled to a refund. 

13 We consider that the answers substituted by the Court of Appeal to the effect that the Landowners succeeded in their claim in restitution at common law were wrong. The Council had a statutory entitlement to fund the works by the levy of special charges payable by the Landowners. The Landowners cannot recover from the Council so much of the moneys as they paid and as the Council spent undertaking the works because, to that extent, the Council was not unjustly enriched at the expense of the Landowners. 

14 The Council's statutory entitlement to fund the works by the levy of special charges payable by the Landowners, and its levy and expenditure in good faith of the special charges on undertaking the works (that is, the Council honestly believing that it had complied with the statutory requirements enabling it to levy and spend the special charges on those works), is an answer to the Landowners' prima facie entitlement to recover moneys paid by them under an operative mistake of law. These circumstances would also answer any prima facie entitlement of the Landowners to recover under the principle formulated in Woolwich Equitable Building Society v Inland Revenue Commissioners – that "money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right" – if that principle were to be imported into the common law of Australia. Whether the Woolwich principle should be imported into the common law of Australia is raised by the Landowners' notice of contention and was the subject of submissions by the Attorney General of the Commonwealth and the Attorney General of Queensland but, given that the circumstances described would answer any such prima facie entitlement to restitution, that question need not be determined.

04 March 2024

Separatism

In Westpac Banking Corporation v Summerscales (No 2) [2023] NFSC 5 Besanko CJ has considered a claim, as part of a property dispute, that Norfolk Island is outside Australian law. 

Under the heading 'Mr Summerscales’ Response to Westpac’s Claim' the Court states 

 Mr Summerscales has filed two Defences in the course of this proceeding. 

His first Defence was filed on 31 August 2023. In that Defence, he did not raise any matter which specifically related to the loan agreement or the mortgage or Mr Summerscales’ alleged default under the provisions in either of those documents. He purports, however, to challenge the jurisdiction of the Supreme Court of Norfolk Island. He refers to various pieces of legislation and he asserts that certain legislation was “unlawful and illegal and void, ab initio and as to the constitution and/or composition of the so-called said Supreme Court of Norfolk Island …”. He also asserts that any judicial officer or registrar sitting in the Supreme Court of Norfolk Island was doing so as a “persona designate” and had no lawful capacity or jurisdiction to do so. He further asserts that Westpac was trading unlawfully, illegally and in direct violation of the laws of “Norf’k Ailen” or Norfolk Island people in every manner whatsoever. He challenges Westpac’s standing to bring this proceeding. In his Amended Defence filed on 12 September 2023, Mr Summerscales reiterates these “pleas” and adds the following “plea”:

4. and in that at the outset, the standing of the Applicant Plaintiff to bring this action whatsoever, is challanged [sic] in that pursuant to the Territories Legislation Amendment Act, 2016 (Cth) [Act No 26 of 2016] [Assented to on 23 March 2016], the amendments to the ACTS INTERPRETATION ACT 1901 (Cth) “Norfolk Island” was only included into the definition of “Australia” within the meaning of the Commonwealth of Australia, on or after 24th March 2016, were unlawful and illegal AND as such and banking arrangements between the Applicant/Plaintiff and the Respondent/Defendant which were concluded before the abovementioned date dictates that any such arrangement breaches any contractual arrangement between the parties, rendering the arrangement void and/or voidable ab initio. and as such, also breaching the Banking Act, 1959 (Cth). 

On 27 July 2023, Mr Summerscales filed an Interlocutory process and affidavit. In the former document, Mr Summerscales made a request for a number of “orders”, including the following order:

An order that the plaintiff provide sufficient evidence that this Court, sitting as the Supreme Court of Norfolk Island is a competent court of record and is legally and lawfully constituted, to be able to hand down confident judgment and has the requisite jurisdiction to bind this “court” and the parties to this action. 

In the affidavit, Mr Summerscales alleged that “the only lawful and legal government on Norfolk Island is that law introduced to Norfolk Island by the Pitcairn Settlers” and that the descendants of the Pitcairn Settlers still survive and include Mr Summerscales. As I understand it, Mr Summerscales asserts that neither Westpac nor the Commonwealth of Australia nor the State of New South Wales has any jurisdiction over Mr Summerscales or the Pitcairn people (“me or my people”). 

This Interlocutory process was dismissed at the hearing on 10 August 2023 which is described below. 

On 7 August 2023, Mr Summerscales purported to file an Amended Interlocutory process and affidavit. The main thrust of this seemed to be that Mr Summerscales will be seeking an order that Westpac pay a sum of “five (5) times the sum of this action, to be paid into Court as a ‘Peregrini Payments into Court’”. This Interlocutory process was also dismissed on 10 August 2023. 

On 9 August 2023, two documents were filed. One document was an “Application for leave to intervene” filed by a person purporting to be the Attorney-General of the Norf’k Ailen Government. The document purported to be an Application to intervene and for orders that the current proceedings be dismissed for want of jurisdiction of the Court. The affidavit was filed by a person claiming to be “‘RO’ of the clan ‘i.am.ro’” and claiming to be the current Attorney-General of Norf’k Ailen Government. The person apparently swearing the affidavit said that he was appointed to his current position by the Norf’k Ailen Chief Magistrate. He deposes that he did not appoint or establish any Supreme Court on the “terra-firma” known as Norf’k Ailen since his tenure. He states that since his appointment, no Court known or addressed as the Supreme Court was in existence. He states that he did not appoint any Chief Justice and he states that no such office existed upon his appointment. He states that any seals applied to the documents are not seals approved or authorised by the Norf’k Ailen Government. As to the Court, he states that it is “not a Court that has any jurisdiction upon the Constitution and Laws of the Norf’k Ailen Government, either now or historically from before these people arrived on Norf’k Ailen from Pitcairn Island on 8th June 1856”. The Application for leave to intervene was dismissed on 10 August 2023. ... 

At the first case management hearing, Mr Summerscales asserted that the Court did not represent the people of Norfolk Island “people like myself”. He said that the Court that I was sitting in and the documents produced appeared to be foreign to the people of Norfolk Island. He asserted that he needed to be satisfied that the Court had jurisdiction in Norfolk Island. I made an order that Mr Summerscales file a Defence by 27 July 2023 and adjourned the matter for a further case management hearing on 10 August 2023. 

I conducted a second case management hearing on 10 August 2023. At that time, Mr Summerscales had not filed a Defence. He said that that was because the Court had not actually established its jurisdiction and that it was not possible to go forward until the jurisdiction of the Court was established. I referred Mr Summerscales to the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island and asked Mr Summerscales to identify a basis upon which I could go behind that conferral of jurisdiction. Mr Summerscales asked whether “my Attorney general” was in the Court in Adelaide. Mr Summerscales asked whether it was possible for “my Attorney general to speak for me”. I told him that that was not possible. I again asked Mr Summerscales to identify the basis upon which I could go behind the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island. Mr Summerscales then asserted that the Court was an unlawful court. As to the Supreme Court Act of Norfolk Island, he said the following:

… those are all Acts that – pushed on us by Australia, not Acts made by people of Norfolk Island or our Norfolk Island government.

 At or about this point, an adult female in the courtroom in Norfolk Island interrupted the proceeding and asserted that she was the Chief Magistrate “as appointed by the people of Norfolk Island to act under the Pitcairn Constitution that was brought here and instigated in 1856”. There was then an exchange between this person and myself which is recorded in the transcript. The female adult asserting to be the Chief Magistrate then said the following referring to a person she described as “our Attorney general”:

He has on file documents appointing an Attorney general under the Pitcairn Constitution, and he showing bias to the Australian judicial system by not even imploring our request to have our Attorney general in court. So you need to explain why we do not have representation in your court. 

Mr Summerscales then asserted that Norfolk Island did not belong to Australia. It was not in my jurisdiction and not in my Constitution. He asserted that I was acting outside of my Constitution and violating “our constitution and our court”. At that point, I asked Mr Summerscales whether he wanted an opportunity to put in writing why I should go behind the conferral of jurisdiction in s 5 of the Supreme Court Act of Norfolk Island. At that point, the adult female said that the Court is a defunct court and a court not erected by the Norfolk Island government and the people of Norfolk Island. ... 

What Mr Summerscales did do between 13 September 2023 and 21 November 2023, or claimed that he did, was the following: (1) It seems that on or about 14 November 2023, Mr Summerscales sought to file an Interlocutory process and affidavit. The Registrar of the Court refused to accept the documents (r 6142). The documents were returned to Mr Summerscales as required by the Rules (r 6143). As it happened, copies of the documents were later sent to the Registry of the Court on Norfolk Island with “no apparent sender” via Officeworks which is not located on Norfolk Island. In light of Mr Summerscales’ status as a self-represented litigant and the significance of the order being sought by Westpac, I considered the matters raised in the documents in case they raised something new that might be relevant to whether or not summary judgment ought to be granted. They do not. The focus of a foreshadowed defence is the jurisdiction of the Court and whether, to use Mr Summerscales words, “the sitting of this Court is under a foreign jurisdiction, namely under Australian laws”. The alternative or perhaps additional defence (which of these it is not clear to me) was that my appointment as Chief Justice was and is invalid because it was made before “Norf’k Ailen” became part of Australia on 24 March 2016. Mr Summerscales also asserted that the Australian Government “are still attempting to mask their unlawful behaviour to try to usurp control over Norf’k Ailen (also known as Norfolk Island)”. Finally, Mr Summerscales asserted that Westpac “acted unlawfully in its dealings with the banking transactions related to the core matters of the merits of this Claim”. No particulars whatsoever of this serious allegation of unlawful conduct are provided. Mr Summerscales has had ample opportunity to provide any relevant particulars of any alleged unlawful conduct by Westpac. Had I thought that there was anything in these documents, I might have given Mr Summerscales an opportunity to file a further affidavit, but there is nothing. In his affidavit, Mr Summerscales said that he attended the Court on 14 November 2023 and that he was then told that the matter had been stood over to 21 November 2023. ... 

Mr Summerscales asserts that he had not been consulted as to his availability for another date for hearing and, in particular, 28 November 2023. He refers to the fact that he attended the courthouse on 14 November 2023 and that it was closed. He states that he then went to the Registrar’s office and was advised that the hearing had been postponed. He had not been advised that the hearing would not be held on 14 November 2023. He states that “for personal medical reasons” he would not be able to attend a hearing on 28 November 2023 and now did not have a confirmed date as to when that may even be considered. He asserts that since his first appearance in the matter, all of his documents have been ignored or dismissed. He asserts that I have failed in various duties. He states that since the first hearing in the matter, he has continued to ask for evidence that the Court is a lawful and legal court of “Norf’k Ailen (also known as Norfolk Island)”. He states that he considers that he is entitled to question the jurisdiction of the Court and that the Court must address the jurisdictional question. He states that the Australian Government Hansard shows that Norfolk Island has never been part of the State of New South Wales since Federation. He also refers to publicly available Australian Government official documents after 2014. He states that they show that Norfolk Island has never been part of the State of New South Wales and is not part of, owned by, or annexed to the Commonwealth of Australia. He asserts that the Australian Government has no authority in law to be administering Norfolk Island. He refers to the Acts Interpretation Act. He refers to the fact that the Local Government Act 1993 (NSW) does not include Norfolk Island. He refers to the fact that further inquiries have revealed that these proceedings and the claim itself, especially “with respect to Corporation only registered a ‘mortgage encumbrance’ on my property (to which this matter refers) on 29th August 2022”. He asserts (as he has in the past) that “on the merits of the claim itself in this matter” he will file pleadings which demonstrate that Westpac has acted unlawfully in its dealings with the banking transactions relating to the core matters of the merits of this claim. He also asks that Westpac provide written evidence to him and the court that the court sitting as the Supreme Court of Norf’k Ailen is a competent court of record and is legally and lawfully constituted to be able to hand down competent judgments and that the so-called court has the requisite jurisdiction to bind the parties to this action. Finally, he states that he considers that I have shown bias and that that is evident from the communication prior to the hearing on 21 November 2023 and to the email sent to his McKenzie friend dated 21 November 2023. He asserts that the content of that email, which is set out below, sent to his McKenzie friend denied him his human rights to be heard at the hearing by AVL. He concludes his letter by referring to the two affidavits relating to the hearing on 21 November 2023. He also asserts that the Court should take into account Magna Carta. He asserts that the judge and the Court have erred in relation to this matter and that the judge’s statements and orders are void and this whole matter, the judge, the courts are “Coram non judice and nullity”. 

The letter from the person purporting to be the Chief Magistrate of Norf’k Ailen Government is dated 28 November 2023. The person, whose name does not appear, referred to her appearance on 10 August 2023 when she presented herself as the Chief Magistrate of Norf’k Ailen. The letter refers to the Supreme Court of Norfolk Supreme as “defunct”. The author of the letter states that she has received a complaint from Mr Summerscales. She states that neither she nor her Attorney General has appointed me to office. She states the following:

Let me remind you, the power, and laws of the Constitution of Pitcairn Island, dated 1838 and those laws and Constitution which the Pitcairn Settlers brought to Norf’k Ailen (also known as Norfolk Island), and along with the Great Seal issued to the Norf’k Ailenders in 1856, and the Pacific Islanders Protection Act 1875, to name a few, are still very much the authority here on this ailen. I strongly advise yourself, and any other person who has not been appointed by myself as Chief Magistrate of Norf’k Ailen (also known as Norfolk Island), or my Attorney General, to cease your actions effective immediately, or you may find yourself and others liable for prosecution for usurping the laws and governance of Norf’k Ailen (also known as Norfolk Island).

The letter states that copies had been sent to the Governor General of the Commonwealth of Australia, the Attorney-General of the Commonwealth of Australia, the Chief Justice of the Federal Court of Australia, Westpac and the Registrar.

02 March 2024

Law on the ground

In Butterfield v. LeBlanc et al, 2007 BCSC 235 states 

 [7] Mr. Butterfield claims that, due to the way punctuation is used in statutes, all governments are corporations. He also claims that Canada does not exist as a federal nation and that the provinces are independent nations. The thrust of the arguments is that the prosecution of him was unlawful, and he should be compensated. 

[8] Much of Mr. Butterfield’s argument is based on the use of grammar that he says leads to a number of conclusions, including that governments are corporations and do not have the authority to pass laws. For example, paragraph 3 of his Statement of Claim is as follows:

This Statement of Claim, is based upon legal definitions provided in “Statutory” instruments; certain internal “governmental” documents; a publication from the Translation Bureau as a special operating agency of the Department of Public Works and Government Services “Canada”; research results provided by individuals working with Justice “Canada” including Ed Hicks, Counsel, Legislative Services Branch of Justice Canada; Canadian Law Dictionary; Legal Maxims; Hansard from House of Commons Debates; and documentary evidence produced either by “government” or by former “government” employees/officers ; or grammar and/or language usage authorities and does not rely upon belief, theory or opinion. 

[9] I quote from para. 31 of his Statement of Claim to illustrate part of the substance of his claim:

That evidence will show the real provinces are not “a part of Canada”, and are independent nations as established by the Statute of Westminster 1931. Definitions provided for the term “province” by both the Federal and Provincial “Interpretation Act” includes only the Northwest Territories, the Yukon Territory and Nunavat, and expressly excludes any geographic area known on the street as a province. i.e. Alberta, British Columbia, etc. 

[10] Mr Butterfield claims that there was a conspiracy against him by the defendants, who are among the conspirators. Paragraph 43 of his Statement of Claim sets this out:

That by 1998-1999, the conspiracy had gained new partners in their wrongdoings with the “Department of Justice” and followed shortly thereafter by the “Province of British Columbia Ministry of Health”. The Complainant [Mr. Butterfield], was then made victim of their “selective prosecutions” and labelled as a “Tax Protestor/Anti-government”. The Complainant is neither a “Tax Protestor” nor “Anti-government”. The evidence will show that the Complainant is only concerned with the welfare of the people and their country, and other than being compensated for the fraud and human rights violations he has suffered, desires only to cause creation of lawful governments capable of creating public laws, and to serve the people. 

[11] Mr. Butterfield claims, at para. 46 of his Statement of Claim, that he was defamed by the defendants and that they maliciously violated his human rights by unlawfully taking part in the prosecution against him. 

[12] The above sets out the basics of Mr. Butterfield’s claim, although it is 59 paragraphs in total. .... 

[15] I will first address briefly Mr. Butterfield’s contention that governments are corporations. Although Mr. Butterfield commenced with a premise and then carried his argument somewhat logically from that premise, the main flaw in his argument on this aspect of his pleadings is that his premise is flawed. 

[16] Mr. Butterfield commenced his argument by relying on The Canadian Style: A Guide to Writing and Editing. This literary guide is published by Dundurn Press Limited “in co-operation with Public Works and Government Services Canada Translation Bureau”. Mr. Butterfield relies on 4.21(c) which states: 4.21 Geographic Terms (c) Do not capitalize a generic term such as city, county, state or province when it precedes the proper noun or stands alone, unless it is used in a corporate sense: 

[17] Mr. Butterfield’s argument equates the word “corporate” with the word “corporation” and he limits the word corporation to mean that related to business. His argument is that since certain words, such as Province and City, are capitalized, then they must be corporations, not government entities. The word “corporate”, however, refers to forming a body politic, which can include, for example, a town with municipal rights. Indeed a corporation can be created by an act of the legislature to form towns. 

[18] Mr. Butterfield overlooks the examples provided in the writing guide that he relies on where the corporate use of the word includes “Buy Province of Ontario bonds”. 

[19] Thus, the claims the plaintiff makes with respect to conclusions flowing from his misinterpretation of grammar fall under Rule 19(24) (a)-(d) inclusive. 

[20] The next primary part of his pleadings relates to his interpretation of the Statute of Westminster, 1931 and his conclusion that there is no such thing as Canada, as well as other legislation which I will turn to momentarily. 

[21] Mr. Butterfield bases his arguments on the debate in the legislature. The date is not clear, but it appears to be 1945. It is a speech given in Parliament by Walter Kuhl, a member from Jasper-Edson Alberta between 1935-1949. He represented the Social Credit Party and later the New Democracy party, then returned to the Social Credit party. Also submitted by the plaintiff are writings of Mr. Kuhl and others on the issue that Canada is not properly constituted as a country. From this “fact”, the plaintiff argues that therefore Canada cannot pass laws which are binding on people who live (as he says) in the independent provinces, including the Income Tax Act. 

[22] Mr. Kuhl argued that The British North America Act, 1867 (U.K.), 30 & 31 Vict., c.3, did not make Canada a federal union. Canada did become a federal state under the Act, but not a sovereign state. The Parliament of the United Kingdom still had the ability to pass laws that were in force in Canada. The passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. V, c. 4, abolished the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, which had permitted the British Parliament to pass laws affecting the then Dominion of Canada. Mr. Kuhl argued, as does the plaintiff, that because the Provinces did not enter into an agreement at this time to form a federation, that none exists. 

[23] At the time of Confederation, several provinces formed the new Dominion of Canada. As time passed, eventually all the provinces joined, the last being Newfoundland in 1949. There was no need for a new agreement to be entered into in 1931. The Statute of Westminster gave sole authority to the Canadian government to pass its own laws, as authorized under the BNA Act, removing the power from the United Kingdom Parliament, save and except regarding amendments to the BNA Act itself. 

[24] The Statute of Westminster did not permit the amendment by the Canadian Parliament of the British North America Act. This could only be done by the British Parliament. It was the convention not to amend the BNA Act without a request from and the consent of Canada. However, Mr. Kuhl continued with his arguments, and indeed published a booklet called Canada: A Country Without a Constitution. 

[25] There are a number of flaws in the argument of Mr. Kuhl, adopted by the plaintiff, some of which are noted above. However, the short answer is found in 1982, when Canada patriated its constitution as a result of the Constitution Act 1982 which is Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11. As of 1982, Canada was a country with its own constitution and if there was any substance to the suggestion that Canada did not have the ability to legislate, (which there clearly is not), then the foundation for the argument crumbled in 1982.

28 February 2024

Regulation

'Immunity Through Bankruptcy for the Sackler Family' by Daniel G Aaron and Michael S Sinha in West Virginia Law Review (Forthcoming) comments
 
In August 2023, the U.S. Supreme Court temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power.  
 
Of course, bankruptcy courts often limit liability against a distressed company, but here, the Sacklers did not themselves declare bankruptcy. Instead, they added about $6 billion to the pot—compared with $600 billion in annual costs from the opioid crisis, by some estimates—and are allowed to keep any remaining profits. The bankruptcy court justified immunity on the grounds that the Sacklers’ money was protected in offshore accounts and trusts and therefore could not be reached through tort liability—all the better to have them participate voluntarily. In other words, the Sacklers laid the groundwork for their own immunity by sheltering the money they withdrew from Purdue. 
 
We have doubts that a single court should have the enormous power of shielding the Sackler Family from all future civil liability for the opioid crisis, simply to enlarge a settlement. Public health litigation has the power to address root causes of public health crises by disincentivizing unscrupulous actors. Granting these actors immunity may insulate them from public criticism while undermining the important role of courts as an avenue of recourse. Upholding immunity for the Sackler family would lay the groundwork for future executives to ride a company into the ground, at the expense of public health, golden parachute ready and waiting. : https://ssrn.com/abstract=4739307

27 February 2024

Biopolitics

'Granular biopolitics: Facial recognition, pandemics and the securitization of circulation' by Mark Andrejevic, Chris O’Neill, Gavin Smith, Neil Selwyn and Xin Gu in (2024) 26(3) New Media and Society 1204-1226 comments 

The COVID-19 pandemic has provided opportunities for facial recognition technology and other forms of biometric monitoring to expand into new markets. One anticipated result is the wholesale reconfiguration of shared and public space enabled by the automated identification and tracking of individuals in real time. Drawing on data from several industry trade shows, this article considers the forms of ‘environmental’ governance envisioned by those developing and deploying the technology for the purposes of security, risk management, and profit. We argue that the ‘contactless culture’ that emerged during the COVID-19 pandemic anticipates the normalization of a form of mass-customized biopolitics: the ability to operate on the population and the individual simultaneously through automated forms of passive identification. This form of governance relies not just on machinic recognition, but on the real-time reconfiguration of physical space through automated access controls and the channelling of both people and information. 

A New York City attorney received widespread media coverage when she was singled out by an automated facial recognition system and denied access to see the famed Rockettes with her daughter at Radio City Music Hall during the Christmas holidays. Reportedly, the venue’s parent company, which owns several New York City venues, including Madison Square Garden, had a database of the employees of law firms engaged in legal action against and was systematically excluding them from events (Hill and Kilgannon, 2022). The incident was, in the scheme of things, relatively minor, but it highlighted the use of facial recognition technology for the management circulation in a way that is likely to become increasingly common as the technology spreads. We open with this example, because the control of access and circulation with automated facial recognition was a recurring theme in our research on the deployment of facial recognition technology during the COVID-19 pandemic. The multiplication of boundaries and checkpoints during the pandemic lent itself to automated firms of identity and status verification. As in the case of the New York attorney, individuals in a crowd could be identified and singled out – based on a range of information including COVID-19 symptoms (such as elevated temperature), past exposure, and their vaccination or quarantine status. Although the focus of this article is on the framing of the utility of facial recognition during the pandemic, the logic of automated governance we examine has broader relevance in the era of remote, real-time biometric identification. 

Indeed, the imperatives of the COVID-19 response – social distancing and contactless-ness – accelerated the development and deployment of passive forms of tracking and detection that enable increasingly individualized forms of social control. As soon as physical proximity came to be viewed as a threat, technologies that provide ‘at-a-distance’ services were enrolled to replace face-to-face activities so as to reduce the potential for viral contagion. At the same time, the goal of preserving as much circulation as possible led to the replacement, in many contexts, of blanket forms of quarantine by targeted forms of screening and sorting. The goal was to allow ‘safe’ forms of circulation while identifying and curtailing avenues of potential contagion. As it transpired, the social distancing imperative became a selling point for the emerging smart-camera and facial recognition industry, which mobilized the promise of efficient, passive, mass-customized monitoring. The result was, as one news account put it, ‘a lucrative market for facial recognition manufacturers’ (O’Donnell, 2020). 

The widespread highly publicized response to the pandemic thus spurred, ‘novel uses of biometric technologies to limit contagion and maintain economic opportunities’ (Van Natta et al., 2020: 1). Our field work in security industry trade shows suggests that for the promoters and vendors of the technology, the pandemic provided additional impetus for highlighting the personalized logics of governance and control already envisioned by the technologies they have been developing and promoting. ‘Frictionlessness’ – for example, could be reframed not just as a means of easing passage through existing checkpoints (such as secure locations, ticketed venues and transit turnstiles), but as a way of managing the proliferating array of borders and access points associated with pandemic management. Office buildings, apartment complexes, shopping malls, and public facilities sprouted checkpoints to monitor vaccine status, symptoms, and potential exposure risks. Some systems regulated access to workspaces based on pandemic occupancy requirements. This ‘thickening’ of the borders to fill a growing number of spaces – and even to enable continuous real-time monitoring – heightened the need for automated forms of identity and status verification. The ability to deploy automated recognition systems at the level of individual movement and access control represents an emerging scale and temporality of the governance of circulation with implications that, while revealed by the pandemic, extend beyond it. 

Drawing upon field research on the use of facial recognition during the pandemic, we describe this form of governance as a ‘granular’ form of biopolitics – a formulation meant to highlight the customized forms of intervention it envisions. A more precise, though perhaps more obscure, formulation would be to describe the mass-individualized governance of shared spaces as a granular form of ‘environmentality’. This term invokes speculative observations by Michel Foucault (2008: 259) about forms of control that operate not at the level of subjectification (as in the case of disciplinary practices), but at that of the environment, or ‘milieu’. Typically, the milieu refers to a shared environment, however, the novelty of automated identification is that it enables the individualization and customization of the milieu itself. The result, we argue, is the mass-customized management of populations at the level of the individual, without necessarily relying upon the attendant forms of subjectification that mark the disciplinary ‘pole’ of biopolitics. As Han (2022) puts it in his reflections on ‘infocracy’, ‘. . . disciplinary power gives way to smart power, a power that does not give orders but whispers, that does not command but nudges. In other words, it pokes us with subtle tools that influence our behaviour’ (p. 5). As we shall see, a range of imperatives including heightened acceleration and norms of efficiency can be built into the material and informational environment without necessarily being ideologically internalized. We may not consciously desire to continually accelerate our production of electronic communication, but the systems we rely upon make this process all but inevitable. Processes of subjective internalization can, in this respect, be displaced or bypassed by feedback in the physical and informational environment. Rouvroy et al. (2013) make a similar point in their work on algorithmic governmentality, which, they argue, ‘produces no subjectification, it circumvents and avoids reflexive human subjects, feeding on infra-individual data which are meaningless on their own, to build supra-individual models of behaviours or profiles without ever involving the individual’ (p. 169). 

This shift marks a historical development in the deployment of biopower anticipated by the widespread deployment of automated forms of real-time identification at-a-distance, and, relatedly, in the development of customizable environments including virtual and augmented reality.