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Charles Ponzi

Charles Ponzi

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About Me

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  • Gender

  • Birthdate

    1956-12-19
  • About me

    Charles Ponzi sent me.

Contact Information

Education

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  • ASIC is investigating the RoyalCommission case studies.

    Were Howard Bowles' customer Elliot Sgargetta right about the banks and crimes ?

    download.asic.gov.au/media/5011933/asic-...-recommendations.pdf

    Read More...
    1 hours 11 minutes ago
  • Charles Ponzi replied to the topic Productivity Commission in the forum
    www.pc.gov.au/__data/assets/pdf_file/001...11-mental-health.pdf

    Supportive Residents and Carers Action Group Inc

    SUBMISSION TO THE PRODUCTIVITY COMMISSION INQUIRY INTO
    MENTAL HEALTH



    About us:
    Our Association is under the patronage of a medical practitioner who was formerly a chair of the Queensland Crime and Corruption Commission’s predecessor.
    Our Association registers Whistleblowers with international law enforcement regulators such as the American SEC Office of the Whistleblower Program.
    Our colleagues in California and Nevada in Maverick Ministries were published by the US Department of Justice Anti-Trust Division review on international cooperation between international law enforcement agencies in a climate where Whistleblowers tend to be vilified and victimised and discredited including by psychiatrists in Melbourne who ended up being investigated by the Victorian Ombudsman and now by Worksafe’s Independent Medical Examiner Review.
    Our spokesman has appeared on ABC TV business programs relating to the Royal Commission into banking and insurance scandals.
    Our committee member and others have, alone or with politicians, appeared on television shows such as 60 Minutes’ series on farm suicides/ANZ Landmark where the CEO of the ANZ apologised to the 85 year old farmer three years before the ANZ official was questioned about the scandal at the Royal Commission.
    Our Association is one of the submitters that is referred to in footnote 372 of the Judgement of Victorian Supreme Court in “Commonwealth DPP v Brady & Others”, which was the international bribery case which involved officials in the Reserve Bank’s subsidiaries where those submissions properly reflect the same conclusion reached by Her Honour and expressed by US SEC Director of Foreign Corrupt Practices about the unfathomable light-on investigations by Australian law enforcement compared to investigations by international law enforcement agencies.
    Our Association lobbied extensively for the Royal Commission into Australian banking in part due to the massive number of suicides by farmers who had lost all hope.
    Our Association was published by the FSI Review into Australian banking problems which blossomed into the Royal Commission.
    Our members have been published at the Banking Royal Commission, the Whistleblower Inquiry initiated by Independent Senators and many other Inquiries.
    Our Association was formed in the late 1990s in response to Victorian State Government passing laws that rendered low care shared accommodation facilities financially unviable to keep intellectually challenged and brain-injured people under a roof with 3 meals and medication and washing dressing showering and bathing under the supervision of retired nurses.

    Gas lighting:
    Gas Lighters are mentally ill officials often in positions of power who seem to delight in employing a bullying tactic which belittles their victims. In our experience with numerous cases at the Financial Ombudsman Service it took a Royal Commission to uncover that FOS had arbitrarily decided (possibly at the instigation of officials in a bank with support from officials in ASIC) to ignore one of their Terms of Reference which would allow predatory loans to be written off. You are welcome to cross-reference the evidence at the Royal Commission of their lead Ombudsman.
    Hapless victims seemed incredibly traumatised when they know that the FOS has the power to return them to the original position they would have been in if they had never stepped into the bank, and the bank Ombudsman service mis-portrayed itself as independent and mis-portrayed itself as an Ombudsman whereas it turns out it is an arbitration scheme controlled by the banks and which arbitrarily decided to stop writing off predatory loans.
    There will be many instances like this in many bureaucracies where the so-called helpful staff have hidden agendas.
    Many stories abound for example about the Robocop at Centrelink issuing arbitrary and false demands for repayment of fictional debt.
    The powerless invariably suffer mental health consequences, and one has to query whether mentally ill senior management come up with these ideas because senior management suffers mental illness themselves.
    In the workers compensation field, we would specifically refer your attention to the entire report by the Victorian Ombudsman in September 2016 which reflects the alarming revelations of CBA Whistleblowers which featured on Four Corners regarding the Commonwealth Bank insurance scandal and falsification of medical records. The emails that featured on 4 Corners are appended.
    Also appended are extracts from another CBA Whistleblower that appeared in Fairfax Newspapers and the Submission at Parliament where the Whistleblower states that a psychiatrist told him of concerns about being shot. The Submission refers to the stress the CBA Whistleblowers were under, one dying reputedly from stress at age 34 in his bed.
    Other examples are cited as Fraud on the Court in the litigation field. In other words, are the mentally ill running the asylum? The cost to the economy must be monumental.
    Victorian Ombudsman’s investigation into faux-independent expert psychiatrists:
    The productivity commission will undoubtedly be aware of the concept of doctor shopping.
    Over November 2015 until September 2016 the Victorian Ombudsman found that some Independent Medical Examiners would appease their instructors from insurance companies and law firms by ignoring overwhelming evidence.
    Victims would be traumatised all over again.
    Many victims were police and ambulance professionals.
    In July 2018 the Victorian Ombudsman required Worksafe to go through their faux-independent medical experts with the benefit of internal emails where instructors boasted about reaching targets and earning bonuses while, of course, throwing their bully victims under a bus.
    The productivity commission might like to contact Worksafe Victoria and/or the Victorian Ombudsman for further information.
    Financial Ombudsman Service:
    In the middle of 2014 our association’s concerns about the bank -controlled Financial Ombudsman Service (FOS) were release by the FSI Review.
    We posed the question How Much Evidence of Illegality On the Part of Australian Banks Does FOS Require?.
    The same set of facts were submitted to US law enforcement, and the US Organized Crime Drug Enforcement Task Force found Reserve Bank of Australia documents were being passed through criminal networks to lawyers for credit card companies in circumstances that were so egregious and unethical that they were cited by US DOJ Prosecutors in the sentencing memorandum on the lawyer in New Jersey and by US Judges and the New York Supreme Court Disciplinary Committee.
    In a nutshell, in the USA is unethical for criminals to collude over international bank evidence in bank cases against class-action retail stores. FOS and the Victorian Legal Services Board and Commission remarkably could not see what bank victims and US law enforcement could see.
    In our experience from being inundated with elderly victims of predatory banking who were victims of FOS’ refusal to return people to their original position, e.g. by cancelling predatory loans, it is quite disgusting to think that it took a Royal Commission and hundreds or thousands of farm suicides to get the powers-that-be questioned by the Royal Commission into Banking & Insurance.
    The mental health consequences of institutionalised wilful blindness must be staggering on the entire economy.
    The Culture of Cover-Up: Re-traumatizing victims.
    Our Members and their affiliates in various associations attended rallies at Parliament and the Royal Commission into banking.
    We believe that prevention is best, and we note for example that the Queensland Inquiry into Organized Crime in October 2015 found that the number of fraud squad police could be counted on one hand, and were greatly under resourced and unable to deal with the epidemic of bank fraud, child exploitation and organized crime and boiler room fraud operations. Traumatic Crime and corruption can bloom like a toxic bloom in a swamp.
    The Productivity Commission should, we believe, recommend that whistleblowers services be funded so that the culture of cover-up is washed away.
    Royal Commission into Abuse in Church Institutions, and the Pennsylvanian Grand Jury into Paedophile Priests:
    The most senior levels of the church, apparently including the Vatican, maintained locked records of extensive Child abuse over many decades.
    During the investigations, US law enforcement found that psychiatrists were used to discredit victims.
    We believe the same practices were employed in Australia.
    “The Doom Loop”:
    We concur with our colleagues at the Banking & Finance Consumer Support Association who describe a ‘doom loop’. Complaints to bank regulators etc received letters that said the regulators couldn’t see any banking crimes. However the head lobbyist at the Bankers Association has stated in the newspapers that bankers fear that the Bank Royal Commission will recommend criminal charges be laid against banks or bankers. Victims feel traumatised at being fobbed off, ignored, labelled as nutters, and destroyed. They wouldn’t be traumatised if the law had been enforced.

    Conclusion:
    We are very concerned with so-called independent medical experts in Melbourne who were found to be not independent and little better than hired guns for very questionable people in the insurance and legal industry.
    Yours faithfully
    Wayne Styles and Spencer Murray
    Committee,
    Supportive Residents & Carers
    Action Group Inc.














    EXTRACTS FROM THE VICTORIAN OMBUDSMAN INVESTIGATION INTO MELBOURNE’S ‘INDEPENDENT’ MEDICAL EXAMINERS
    .



    EXTRACTS FROM FAIRFAX/
    4 CORNERS’ STORY ON COMMINSURE

    Email as published on 4 Corners’ episode:






    Email as published on 4 Corners’ episode on CommInsure:

    Extract of CBA Whistleblower’s Submission to the Whistleblower Protection Inquiry re traumatic alteration of evidence

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    1 week ago
  • www.congress.gov/bill/116th-congress/house-resolution/97/text
    Shown Here:
    Introduced in House (02/04/2019)


    116th CONGRESS
    1st Session
    H. RES. 97

    Expressing the sense of the House of Representatives that the crime of lying to Congress must be prosecuted equitably.
    IN THE HOUSE OF REPRESENTATIVES
    February 4, 2019

    Mr. Gaetz (for himself and Mr. Biggs) submitted the following resolution; which was referred to the Committee on the Judiciary
    RESOLUTION

    Expressing the sense of the House of Representatives that the crime of lying to Congress must be prosecuted equitably.

    Whereas providing false or misleading testimony to the Congress is a crime under sections 1001, 1621, and 1623 of chapter 18, United States Code;

    Whereas testimony given before Congress, or any of the committees and subcommittees thereof, must be truthful;

    Whereas honest and forthright testimony is essential to the oversight and investigational authority of Congress;

    Whereas the investigative authority of Congress has been an integral part of its operations since its establishment;

    Whereas the “inquisitorial powers” of the legislature were even discussed in the Federal Convention of 1787, prior to the ratification of the Constitution;

    Whereas, in 1792, a committee of the House of Representatives conducted an investigation into military losses to Native American Tribes, and the committee was explicitly empowered to “to call for such persons, papers, and records, as may be necessary to assist their inquiries”;

    Whereas Roger Stone, a longtime political strategist, was recently arrested, with 29 Federal Bureau of Investigation (FBI) agents and 17 vehicles arriving at his home for a predawn raid;

    Whereas the indictment of Stone revealed that the crimes for which he was arrested were one count of obstruction of proceeding, five counts of false statements, and one count of witness tampering;

    Whereas Stone is one of a very small number of people who have been arrested for the crime of lying to Congress;

    Whereas it has been widely recognized by Members of Congress, legal scholars, and historians that lying to Congress is a crime for which very few people have been prosecuted;

    Whereas in a 2007 essay in the Quinnipiac Law Review, Mr. P.J. Meitl wrote that “almost no one is prosecuted for lying to Congress”, and that “only six people have been convicted of perjury or related charges in relation to Congress in the last sixty years”; and

    Whereas the lack of convictions for lying to Congress is not due to the overwhelming truthfulness of testimony given, as it has been revealed and proven that many people have knowingly provided false statements to Congress without facing punishment, including but not limited to—

    (1) James Clapper, former Director of National Intelligence, who was questioned by Senator Ron Wyden, and was asked whether the NSA “collect[ed] any type of data at all on millions, or hundreds of millions of Americans”, to which Clapper replied “No, sir”, and “not wittingly”, a response he later admitted was “clearly erroneous”;

    (2) James Comey, former FBI Director, who was questioned by Senator Charles Grassley, and asked whether he had ever authorized someone to leak information to the media, to which he responded “no”, despite reports from the Office of the Inspector General indicating his response was likely untrue;

    (3) John Brennan, former Director of the Central Intelligence Agency (CIA), who was questioned by Representative Trey Gowdy, and asked whether the FBI or CIA had used the so-called “Steele dossier” as the basis for any legal proceedings of any kind, to which Brennan replied “no”, and stated further that the dossier “was not, in any way, used as the basis for the intelligence community assessment” of possible election interference, a statement contradicted by news reports, investigative journalists, and the sworn testimony of many other members of the intelligence community;

    (4) Andrew McCabe, former Deputy FBI Director, who was revealed by the Office of the Inspector General to have “lacked candor” when questioned about his unauthorized disclosure of information to the media, including three instances while McCabe was under oath;

    (5) Lois Lerner, former Director of the Exempt Organizations Unit of the Internal Revenue Service, who repeatedly made false statements to congressional investigators, and who denied that she had requested overly extensive and deeply intrusive information from conservative nonprofit organizations in an attempt in order to chill their constitutional rights to free political speech, statements later revealed by the Department of the Treasury Inspector General for Tax Information to be untrue;

    (6) Eric Holder, former Attorney General, who—

    (A) provided false information to the House Committee on Oversight and Government Reform on May 3, 2011, regarding the origins of the program named “Fast and Furious”, subsequently changing his statement during testimony before the Senate Committee on the Judiciary on November 18, 2011;

    (B) provided false information to the House Committee on the Judiciary on May 15, 2013, when he claimed that he had recused himself from the Associated Press leak investigation, without any records indicating a formal recusal letter, required under such circumstances, had ever been drafted; and

    (C) provided false information to the House Committee on the Judiciary on May 15, 2013, saying that “prosecution of the press” was something he had never “been involved in [or] heard of,” though he had personally signed off on a search warrant for the personal email account of Fox News correspondent Mr. James Rosen; and

    (7) Hillary Clinton, former Secretary of State, who was questioned about mishandling classified data by Representative Jim Jordan during a hearing of the House Select Committee on Benghazi, and responded “there was nothing marked classified on my e-mails, either sent or received”, a statement proven untrue by reports from the FBI and the Office of the Inspector General: Now, therefore, be it

    Resolved,

    SECTION 1. Short title.

    This Act may be cited as the “Justice for All Resolution”.

    SEC. 2. Sense of Congress.

    That it is the sense of the House of Representatives that the crime of lying to Congress, as defined in sections 1001, 1621, and 1623 of chapter 18, United States Code, must be prosecuted equitably, without regard to politics or elections.

    Read More...
    2 weeks ago
  • Charles Ponzi created a new topic ' Fos' Wes Pan to Suzie Burge' in the forum.
    FOS.......

    I have spoken to many people with complaints about their dealings with FOS and in particular the legal counsel. Maybe this sheds a little light on some of your issues?

    Directly below is the letter Wes Pan sent to me. Everytime I lodged a new complaint (not previously heard) he immediately shut it down. Conflict of interest?

    "Please do not lodge any further disputes with FOS as they will be deleted as outside our Terms of Reference. We will not write to you again, not because we wish to be dismissive, but because our position has been made clear and will not change.
    We will continue to delete disputes where we consider it appropriate to do so, and will not give you advance notice before doing so. We are entitled to delete such disputes because to allow an applicant to continually raise new disputes and to give an applicant a new opportunity to make submissions with each separate dispute lodged would have the effect that any recovery action could be stayed indefinitely.
    Any questions?
    If you have any questions or want more information about our approach to the dispute, please quote the case number when you:
     call: 1300 78 08 08; or
     email: This email address is being protected from spambots. You need JavaScript enabled to view it..
    Yours sincerely

    Wes Pan
    Legal Counsel
    Financial Ombudsman Service
    c.c. CBA"

    This is why cases were shut down and sometimes within an hour of being lodged!

    Blurb about Mr. Pan as taken from the new AFCA website

    "Wes Pan
    Before joining FOS as legal counsel in 2010 in the financial difficulty team, Wes worked in the banking, insurance, and superannuation sectors. He worked in-house at Commonwealth Bank dealing with its retail banking disputes and being responsible for litigation involving its general insurance (CommInsure) and life insurance (Colonial Mutual Life Assurance Society Limited) businesses, and then worked in superannuation at AXA Asia Pacific Holdings (now AMP).

    He holds a Bachelor of Science and a Bachelor of Laws from Monash University and was appointed as an adjudicator in 2017."

    Read More...
    2 weeks ago
  • Charles Ponzi created a new topic ' Holder of the Note: Bank loses (so far)' in the forum.
    Accordingly, for the reasons set forth above, I would modify the order by denying the plaintiff's motion for a judgment of foreclosure and sale, since a triable issue of fact exists regarding whether the plaintiff was the holder of the note at the time the action was commenced (see Bank of Am., N.A. v Paulsen, 125 AD3d at 911; US Bank Natl. Assn. v Faruque, 120 AD3d at 578; HSBC Bank USA v Hernandez, 92 AD3d at 844).
    ENTER:


    US Bank N.A. v Nelson 2019 NY Slip Op 00494 Decided on January 24, 2019 Appellate Division, Second Department Mastro, J.P., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

    Decided on January 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
    WILLIAM F. MASTRO, J.P.
    RUTH C. BALKIN
    SANDRA L. SGROI
    COLLEEN D. DUFFY, JJ.
    2016-01722
    (Index No. 23423/09)

    [*1]US Bank National Association, etc., respondent,

    v

    Kenyatta Nelson, et al., appellants, et al., defendants.

    APPEAL by the defendants Kenyatta Nelson and Safiya Nelson, in an action to foreclose a mortgage, from an order of the Supreme Court (Noach Dear, J.), dated December 15, 2015, and entered in Kings County. The order granted the plaintiff's motion for a judgment of foreclosure and sale and denied their cross motion pursuant to CPLR 3211(a) and RPAPL 1303 to dismiss the complaint insofar as asserted against them.


    Rozario & Associates, P.C., Brooklyn, NY (Rovin R. Rozario and Daniel Park of counsel), for appellants.

    Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Suzanne Novak of counsel), for respondent.



    MASTRO, J.P.

    OPINION & ORDER

    It is by now a firmly established principle that the issue of whether a plaintiff lacks standing to commence an action is waived unless it is raised in the answer or in a pre-answer motion to dismiss (see CPLR 3211[a][3]; [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; US Bank N.A. v Konstantinovic, 147 AD3d 1002, 1004; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817). The instant appeal presents the question of whether, in a mortgage foreclosure action in which the complaint alleges that the plaintiff is the owner and holder of the note and mortgage, the mere denial of that allegation in the answer, without more, is sufficient to assert that the plaintiff lacks standing, thereby preserving that issue for adjudication. Upon our review of relevant statutory and decisional law, and in clarification of our own concededly inconsistent decisions in this area, we conclude that this question must be answered in the negative.
    The Facts

    Insofar as relevant here, it is undisputed that in June 2007, the defendants Kenyatta Nelson and Safiya Nelson (hereinafter together the Nelson defendants) obtained a loan in the principal sum of $660,000 from the plaintiff's alleged predecessor-in-interest and executed a promissory note for that sum, secured by a mortgage on their three-family dwelling in Brooklyn. The Nelson defendants subsequently defaulted on their monthly loan payments in May 2009 and thereafter. The plaintiff, to which the mortgage had been assigned, commenced this foreclosure action against the Nelson defendants and several other entities and individuals by the filing of a summons and complaint on September 15, 2009. In its complaint, the plaintiff alleged that it was [*2]"the owner and holder of [the] note and mortgage being foreclosed,"[FN1] and that the mortgage had been assigned to it on August 10, 2009. In their separate, identical answers, the Nelson defendants each admitted certain allegations of the complaint, but denied knowledge or information sufficient to form a belief as to the truth of most of the allegations, including those set forth above. Additionally, the Nelson defendants each pleaded affirmative defenses, including lack of proper service of process and improper inflation of the property's value during the loan process. The defense of lack of standing was not pleaded in the answers. Ultimately, the plaintiff moved for a judgment of foreclosure and sale. The Nelson defendants cross-moved to dismiss the complaint insofar as asserted against them on the grounds that the plaintiff lacked standing to commence the action and failed to comply with the notice requirements of RPAPL 1303. In an order dated December 15, 2015, the Supreme Court granted the plaintiff's motion and denied the Nelson defendants' cross motion. This appeal by the Nelson defendants ensued. For the reasons that follow, we affirm.
    Standing

    The Nelson defendants contend that the denials in their answers of knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegation in the complaint that it was the owner and holder of the note and mortgage were sufficient, standing alone, to place in issue the plaintiff's standing to commence the foreclosure action. We disagree.

    CPLR 3018, which governs responsive pleadings, draws a distinction between denials and affirmative defenses. Denials generally relate to allegations setting forth the essential elements that must be proven in order to sustain the particular cause of action. Thus, a mere denial of one or more elements of the cause of action will suffice to place them in issue, and "there is no reason to [additionally] assert as an affirmative defense the opposite of what the pleading party is [already] required to prove" (5-3018 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3018.00). Conversely, where the answering party wishes to interpose new matter in defense to the cause of action that goes beyond the essential elements of the cause of action, the statute indicates that the party must plead, as an affirmative defense, "all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading" (CPLR 3018). Accordingly, where a defendant seeks to inject into the litigation "matters [that] are not the plaintiff's burden to prove as part of the cause of action," those matters must be affirmatively pleaded as defenses (Siegel, NY Prac § 223 [6th ed Dec. 2018 Update]; see CPLR 3014; 5-3018 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3018.02).

    A facially adequate cause of action to foreclose a mortgage requires allegations regarding the existence of the mortgage, the unpaid note, and the defendant's default thereunder, which, if subsequently proven, will establish a prima facie case for relief (see IndyMac Venture, LLC v Amus, 164 AD3d 883, 884; JPMorgan Chase Bank N.A. v Wenegieme, 162 AD3d 876, 877; A/SL DFV, LLC v C.A.R.S. Constr., LLC, 161 AD3d 921, 922). In order to place in issue any of these essential elements of the cause of action, a defendant need only deny them in the answer. However, as a general matter, a plaintiff need not establish its standing (i.e., that it held and/or owned the note at the time the action was commenced) as an essential element of the cause of action (see JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 567). Rather, it is only where the plaintiff's standing is placed in issue by the defendant that the plaintiff must shoulder the additional burden of establishing its standing to commence the action, a burden satisfied by evidence that it was the holder or assignee of the underlying note at the time the action was commenced (see Nationstar Mtge., LLC v Balducci, 165 AD3d 959; U.S. Bank N.A. v Clement, 163 AD3d 742, 743; JP Morgan Chase Bank, N.A. v Atedgi, 162 AD3d 756, 757; Bank of N.Y. Mellon v Theobalds, 161 AD3d 1137, 1138; CitiMortgage, Inc. v McKenzie, 161 AD3d 1040, 1041).

    Based on the foregoing, it logically follows that where, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead [*3]lack of standing as an affirmative defense in the answer in order to properly raise the issue in its responsive pleading. Indeed, the Court of Appeals reached this very conclusion in Matter of Fossella v Dinkins (66 NY2d 162). That case involved a proceeding to have the Board of Elections of the City of New York remove a proposed referendum from the ballot, and the intervenors in the action argued that the petitioners lacked standing to seek that relief. In rejecting the contention, the Court relied upon, inter alia, CPLR 3018(b) and CPLR 3211(e) to hold that the challenge to the petitioners' standing had been waived "because it was not raised as an affirmative defense, or by way of a motion to dismiss, at Special Term" (Matter of Fossella v Dinkins, 66 NY2d at 167). The decision also cited to two earlier cases in which the Court had resolved standing objections in the same manner. In Dougherty v City of Rye (63 NY2d 989, 991-992), which involved an action challenging a zoning ordinance amendment, the Court rejected an argument by the defendant City of Rye that the plaintiffs lacked standing, reasoning that the argument "[was] not asserted in the City's answer or in a pre-answer motion to dismiss and [has] thus been waived." Likewise, in Matter of Prudco Realty Corp. v Palermo (60 NY2d at 657), a proceeding to annul the determination of a zoning board of appeals in which the intervenor interposed an answer that did not assert that the petitioner lacked standing, the Court held that "nasmuch as CPLR 3211 (subd [e]) provides that such a defense is waived if not raised either by motion or in the responsive pleading, [the intervenor] must be deemed to have waived its objection to [the] petitioner's standing."

    The clear principle readily discerned from CPLR 3018(b) and the foregoing decisions is that a defendant waives the issue of standing unless she or he affirmatively raises an objection premised upon it, either by making a pre-answer motion to dismiss on that basis or by specifically asserting that defense in the answer. None of these decisions supports the proposition that standing will be placed in issue by the mere denial in the answer of factual allegations set forth in the complaint, nor has the Court of Appeals suggested that these holdings are in any manner limited to a particular type or class of actions or proceedings. Our own Court implicitly acknowledged as much by relying upon the foregoing decisions in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239), a mortgage foreclosure action similar to the one currently before us. There, the complaint of the foreclosing plaintiff expressly alleged that the plaintiff was the "sole, true and lawful owner" of the note, and a copy of the note was appended to the pleading. As in the case at bar, the defendant served an answer specifically denying the material allegations of the complaint, including the foregoing allegation, and also asserted five affirmative defenses, but lack of standing was not among them. In opposition to the plaintiff's subsequent motion for summary judgment, the defendant argued for the first time that the plaintiff lacked standing to bring the action. Significantly, we did not find that the specific denial in the answer sufficed to raise the standing issue. Rather, citing the Court of Appeals cases previously discussed, we rejected the defendant's contention as waived, observing that "the Court of Appeals and the intermediate appellate courts, including our own, have squarely held that an argument that a plaintiff lacks standing, if not asserted in the defendant's answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211(e)" (id. at 242; see Matter of Klein v Garfinkle, 12 AD3d 604, 605 ["as the issue of standing was not raised as an affirmative defense in an answer or in the pre-answer motions to dismiss the petition, the issue was waived"]; accord Weiss v Phillips, 157 AD3d 1, 9 [1st Dept 2017] [defendant waived defense of lack of standing by failing to raise it in answer or pre-answer motion]; Forcucci v Board of Educ. of Hamburg Cent. Sch. Dist., 151 AD3d 1660, 1660 [4th Dept 2017] [standing waived where defendant failed to include that defense in its answer or pre-answer motion]; Chase Home Fin., LLC v Howland, 149 AD3d 1405, 1405-1406 [3d Dept 2017] [failure to raise lack of standing as an affirmative defense in the answer or in a pre-answer motion to dismiss waived the issue]).

    Our holding in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239) was not limited to its facts, and we have continued to apply the foregoing rule in mortgage foreclosure cases, determining that where the defendant fails to affirmatively state the defense of lack of standing in the answer or in a pre-answer motion to dismiss, the issue is waived (see e.g. Bank of N.Y. Trust Co., N.A. v Chiejina, 142 AD3d 570, 572 [citing Matter of Fossella v Dinkins (66 NY2d 162) and holding that, despite the answer's specific denial of the allegation in the complaint that plaintiff was the holder of the note, "[s]ince the homeowner did not raise the affirmative defense of standing in his answer (see CPLR 3018[b]), or in a pre-answer motion to dismiss the complaint (see CPLR 3211[a]), he waived that issue"]; One W. Bank, FSB v Vanderhorst, 131 AD3d 1028, 1028 [issue of standing waived, notwithstanding the answer's specific denial of an allegation in the complaint [*4]that plaintiff was the owner and holder of the debtor instrument, where the defendant failed to raise that issue in a pre-answer motion or as an affirmative defense in the answer]; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 779-780 [where the defendant made no pre-answer motion and interposed an answer denying the allegations of the complaint, including an allegation that plaintiff was the owner and holder of the note and mortgage, but "did not allege that the plaintiff lacked standing to commence this action or otherwise assert an affirmative defense or counterclaim," the issue of standing was waived]; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 567 [defendants denied the allegation in the complaint that plaintiff was the sole, true and lawful owner of the note, but nevertheless waived standing "by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint"]; see also Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 ["any standing challenge was waived by defendant's failure to raise this as an affirmative defense in the only answer with which this Court has been provided or in a pre-answer motion to dismiss"]).

    The foregoing decisions establish that the issue of standing is waived absent some affirmative statement on the part of a mortgage foreclosure defendant, which need not invoke magic words or strictly adhere to any ritualistic formulation, but which must clearly, unequivocally, and expressly place the defense of lack of standing in issue by specifically identifying it in the answer or in a pre-answer motion to dismiss. A mere denial of factual allegations will not suffice for this purpose. Since these holdings are consistent with the requirements for responsive pleadings set forth in CPLR 3018 and with Court of Appeals precedent, and since they serve the salutary purpose of ensuring that challenges to standing are raised with clarity and resolved at the outset of the litigation (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769), we now reaffirm them. The contrary approach advocated by the Nelson defendants undermines the pleading requirements of the CPLR. Taken to its logical conclusion, the Nelson defendants' position would mean that their denials preserve all conceivable affirmative defenses that can be parsed from reading the factual allegations of the complaint in conjunction with their corresponding and conclusory denials, so that these defenses may be raised at some subsequent point in the case. Such a result would render the obligation under CPLR 3018(b) to specifically plead affirmative defenses in the answer meaningless, delay the legislatively favored prompt adjudication of the defenses at an early point in the litigation, and cause prejudice and surprise to plaintiffs. Moreover, the practical realities of mortgage foreclosure litigation are that foreclosure complaints invariably allege that the plaintiff is the holder and/or assignee of the note, and answering defendants reflexively deny (or deny knowledge as to the truth of) most or all of the allegations in their responsive pleadings. Were such denials by themselves sufficient to place standing in issue, then standing would effectively become a prima facie element of the plaintiffs' claims in all contested foreclosure actions, an unwarranted consequence. Rather, if a defendant in a foreclosure action genuinely believes that she or he has a basis upon which to contest standing, it is not too much to ask her or him to specifically and affirmatively assert that position in the answer as the CPLR requires.

    To the extent that some decisions of our Court have strayed from the foregoing principles by indicating that a mere denial in the answer of factual allegations set forth in the complaint will suffice to place standing in issue, thereby injecting uncertainty into this formerly settled area (see e.g. Bank of Am., N.A. v Barton, 149 AD3d 676, 678; Nationstar Mtge., LLC v Wong, 132 AD3d 825, 826; Bank of Am., N.A. v Paulsen, 125 AD3d 909, 910; US Bank N. A. v Faruque, 120 AD3d 575, 576), they should no longer be followed.[FN2]

    Since the Nelson defendants made no pre-answer motion to dismiss, and merely denied the majority of the factual allegations in their answers without specifically raising a challenge to the plaintiff's standing, the issue of standing was waived.
    Notice Pursuant to RPAPL 1303

    RPAPL 1303 requires that a notice titled "Help for Homeowners in Foreclosure" be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to four-family dwellings (see Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675, 676; Prompt Mtge. Providers of N. Am. LLC v Singh, 132 AD3d 833, 833). "The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type" (Eastern Sav. Bank, FSB v Tromba, 148 AD3d at 676; see RPAPL 1303[2]). "Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint" (Eastern Sav. Bank, FSB v Tromba, 148 AD3d at 676; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 98; First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165-166).

    Although the defense of lack of service of the requisite RPAPL 1303 notice may be raised at any time (see Eastern Sav. Bank, FSB v Tromba, 148 AD3d at 676; First Natl. Bank of Chicago v Silver, 73 AD3d at 163), we agree with the Supreme Court's denial of that branch of the Nelson defendants' cross motion which was to dismiss the complaint for lack of such service (see e.g. Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 102-103). In opposition to the Nelson defendants' cross motion, the plaintiff submitted affidavits of service demonstrating that the Nelson defendants each were properly served with the requisite RPAPL 1303 notice. The plaintiff's showing was sufficient to establish that the RPAPL 1303 notices served on the Nelson defendants complied with the statute (see Eastern Sav. Bank, FSB v Tromba, 148 AD3d at 676). The conclusory and unsubstantiated denials of service by the Nelson defendants in their affidavits lacked the factual specificity and detail required to rebut the presumption of proper service created by the process server's affidavits of service (see U.S. Bank N.A. v Tate, 102 AD3d 859, 859; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103) and warranted the denial of that branch of their cross motion on this basis.
    Conclusion

    In view of the foregoing, the parties' remaining contentions need not be reached.

    Accordingly, we agree with the Supreme Court's determination granting the plaintiff's motion for a judgment of foreclosure and sale and denying the Nelson defendants' cross motion to dismiss the complaint insofar as asserted against them.
    Therefore, the order is affirmed.

    BALKIN and SGROI, JJ., concur.

    ORDERED that the order is affirmed, with costs.

    DUFFY, J., dissents in part and concurs in part, and votes to modify the order, on the law, by deleting the provision thereof granting the plaintiff's motion for a judgment of foreclosure and sale, and substituting therefor a provision denying that motion, and, as so modified, affirming the order, with the following memorandum:

    For the reasons set forth below, I would modify the order by deleting the provision thereof granting the plaintiff's motion for a judgment of foreclosure and sale, and substituting therefor a provision denying that motion; as so modified, I would affirm.

    In light of certain Second Department precedent—Bank of Am., N.A. v Barton (149 AD3d 676, 678), Nationstar Mtge., LLC v Wong (132 AD3d 825, 826), Bank of Am., N.A. v Paulsen (125 AD3d 909, 910), US Bank Natl. Assn. v Faruque (120 AD3d 575, 576)—and for the reasons detailed below, I disagree with my colleagues in the majority to the extent that they conclude that [*5]the order should be affirmed on the ground that the defendants Kenyatta Nelson and Safiya Nelson (hereinafter together the Nelson defendants) waived the issue of standing.
    Justiciability and Standing

    "Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation" (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769). Standing is a threshold determination requiring an inquiry into whether the litigant has an interest in the claim at issue in the action that the law will recognize as a sufficient predicate for determining the issue (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242).[FN1]

    Until approximately nine years ago, the issue of whether the defense of lack of standing could be waived was unsettled in New York State (see id. at 243)[FN2]. Indeed, the Court of Appeals' decision in 1991 on the issue of standing, Society of Plastics Indus. v County of Suffolk (77 NY2d at 784-785), did not address the issue [FN3]. As noted herein, although the majority points to certain Court of Appeals cases (see e.g. Matter of Fossella v Dinkins, 66 NY2d 162, 167-168; Dougherty v City of Rye, 63 NY2d 989, 991-992; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657), and cases in this Court (see e.g. Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 244), for the proposition that the law is settled as to how or under what circumstances the defense of lack of standing is waived, to wit, that unless denominated an "affirmative defense" or raised in a pre-answer motion to dismiss, the defense of lack of standing is waived, I respectfully disagree. Likewise, to the extent that the majority determines that this Court's decisions in Bank of Am., N.A. v Barton (149 AD3d at 678), Nationstar Mtge., LLC v Wong (132 AD3d at 826), Bank of Am., N.A. v Paulsen (125 AD3d at 910), and US Bank Natl. Assn. v Faruque (120 AD3d at 576), represent judicial drift on the question of how or under what circumstances the defense of lack of standing is waived and, thus, should no longer be followed, I also disagree. I contend, for the reasons discussed infra, that (1) in the narrow set of cases with facts such as those here, the law with [*6]respect to how or under what circumstances the defense of lack of standing is waived has, until now, been that an examination of the specific pleadings in each case must be made to determine whether the defense of lack of standing has been waived (see generally Butler v Catinella, 58 AD3d 145, 147-148); (2) this Court should adhere to its determinations in Barton (149 AD3d at 678), Wong (132 AD3d at 826), Paulsen (125 AD3d at 910), and Faruque (120 AD3d at 576), all of which support that analytical approach; and (3) such an analysis is consistent with the principles of the CPLR that pleadings should be broadly construed (see CPLR 3018), and the majority's determination herein is not.
    Narrowing the Dispute

    As an initial matter, there is no dispute that the defense of lack of standing is waived when it is not asserted in a responsive pleading or pre-answer motion to dismiss (see CPLR 3018; Nationstar Mtge., LLC v Wong, 132 AD3d at 826; Bank of Am., N.A. v Paulsen, 125 AD3d at 910). Likewise, if a plaintiff does not assert allegations pertaining to standing, the only way for the issue to be raised in a proceeding is through an affirmative defense in the defendant's answer or a pre-answer motion to dismiss (see CPLR 3018 ["A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading"]). The crux of the dispute here is whether, when a plaintiff has asserted facts pertaining to its standing in its complaint, a specific denial by a defendant or a denial of knowledge or information sufficient to form a belief as to that specific allegation (hereinafter DKI) preserves the issue such that, in order to succeed on a motion for summary judgment or for a judgment of foreclosure and sale, the plaintiff must prove its allegation(s) as to its standing.

    As set forth below, I submit that the answer is "yes" and that there is no reason to disavow prior precedent of this Court which has determined that, where a defendant has specifically denied in its answer the plaintiff's allegations related to standing or has specifically denied knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegations related to standing, the defendant has not waived the defense of lack of standing (see Bank of Am., N.A. v Barton, 149 AD3d at 678; Nationstar Mtge., LLC v Wong, 132 AD3d at 826; Bank of Am., N.A. v Paulsen, 125 AD3d at 910; US Bank Natl. Assn. v Faruque, 120 AD3d at 576).
    Court Precedent and the Purpose of Pleadings

    The purpose of pleadings is to present and define the issues to be tried and determined and to plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues not appearing on the face of a prior pleading (see CPLR 3018). "The pleadings are the formal statements by the parties of the material facts which constitute their respective claims and defenses" (84 NY Jur 2d, Pleading § 1). "Issues are defined and presented for determination when facts properly set forth in a pleading are properly denied or otherwise controverted by the opposing party" (84 NY Jur 2d, Pleading § 1). Notably, "[p]arties must generally be granted wide latitude in framing their pleadings so as to raise and have determined every question affecting their interest in the subject matter of the litigation" (84 NY Jur 2d, Pleading § 1). "As long as the pleading may be said to [give notice to the other side], in whatever terminology it chooses, this [pleading requirement dictated by CPLR 3013] is satisfied" (Patrick M. Connors, 2013 Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3013:2). "The test is entirely sui generis" (id.). Indeed, one of the very reasons the CPLR was adopted was "to make pleadings less rigid" (Siegel, NY Prac § 208, [6th ed Dec. 2018 Update]).

    Thus, I disagree with my colleagues in the majority to the extent that they contend that the only way that a plaintiff's lack of standing may be put in issue is to affirmatively plead it as a defense (or include it as a specific ground for dismissal pursuant to CPLR 3211[a][3]). This Court has held that " [a] defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed'" (Butler v Catinella, 58 AD3d at 148, quoting Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743). To the extent that the majority's determination creates a bright line test to give direction to litigants, I submit that, while laudable in purpose, a rigid adherence to particular language in an answer is not consistent with the purposes of the CPLR. Moreover, as set forth below, this Court has already created a bright line test to ascertain if the issue of standing has been raised that is consistent with CPLR 3211(a)(3), 3013, 3018, and 3026, and the broad requirement that pleadings must be liberally construed.

    This Court has not hesitated to find that the defense of lack of standing is waived where a defendant has only asserted general or conclusory denials or DKIs to the allegations in a [*7]plaintiff's complaint, since a general or conclusory denial could not reasonably be read to put a plaintiff on notice that its standing is in issue (see South Point, Inc. v Rana, 139 AD3d 935, 935-936; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780)[FN4]. Thus, there is no reason to adopt a rule of law that mandates that the defense of lack of standing is waived unless magic words such as "defense" or "affirmative defense" appear together with "lack of standing" in a responsive pleading (when a pre-answer motion to dismiss which asserts lack of standing as a basis for dismissal has not been made).

    For example, where, as here, as well as in Paulsen, Faruqe, and Wong, a plaintiff alleges in its complaint that it is the "owner and holder of [the] note and mortgage being foreclosed" and that "the mortgage was subsequently assigned to [the plaintiff] by assignment" or that the "[p]laintiff is in possession of the original note with a proper endorsement and/or allonge and is therefore, the holder of both the note and mortgage, which passes as incident to the note" (see Bank of Am., N.A. v Barton, 149 AD3d at 676), a denial or DKI should suffice to put the plaintiff on notice as to the issue of standing. To hold otherwise renders meaningless the purpose of a denial.
    Factual Allegations Inextricably Intertwined with Legal

    Precepts

    To the extent the majority contends that the allegations in the plaintiff's complaint that it is the "owner and holder of [the] note and mortgage being foreclosed" are "purely factual in nature" (majority op at 2 n 1), such that they cannot reasonably be construed as raising the issue of standing or that the plaintiff would be surprised that its standing is in controversy, I respectfully disagree. Although the words "the plaintiff has standing" are not overtly set forth in the complaint, the factual assertions that the plaintiff is "owner and holder of [the] note" are inextricably intertwined with legal conclusions pertaining to the issue of the plaintiff's standing [FN5]. Significantly, the word "holder" is a legal term defined in the Uniform Commercial Code as the person "in possession of a negotiable instrument that is payable either to the bearer or to an identified person that is the person in possession" (UCC 1-201[21][A]; U.S. Bank N.A. v Clement, 163 AD3d 742, 743 [internal quotation marks omitted]). "[A] promissory note [is] a negotiable instrument within the meaning of the Uniform Commercial Code" (Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674). Furthermore, a plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, at the time the action was commenced, it was either the holder or assignee of the underlying note (see U.S. Bank, N.A. v Noble, 144 AD3d 786, 787). Thus, allegations in a complaint such as those here, that the plaintiff is the "owner and holder of [the] note and mortgage being foreclosed," are tantamount to an allegation that the plaintiff has standing. Where such allegations appear in a complaint in mortgage foreclosure action, the defendant's specific denial or DKI of the allegations should be sufficient to avoid the penalty of waiver or forfeiture of the defense since the plaintiff has already raised the issue and thus cannot be surprised by it (see CPLR 3018).[FN6]

    Moreover, even if, as the majority contends, the allegations referred to above could somehow be construed as purely factual in nature and not implicating the legal conclusion of standing, the test as to whether a party must plead a matter as an affirmative defense is whether the matter "would be likely to take the adverse party by surprise" or "would raise issues of fact not appearing on the face of a prior pleading" (CPLR 3018). Thus, a plaintiff such as the one here which has asserted that it is the "owner and holder of [the] note and mortgage being foreclosed," to which the defendants have asserted a denial or DKI, cannot contend that it did not assert such facts or that it is surprised that those facts are in controversy. Thus, a plaintiff cannot succeed on a motion for summary judgment by simply showing that it holds the note at the time the motion is made; rather, the plaintiff must demonstrate that it held the note at the time the action was commenced. Any contrary conclusion would eviscerate a defendant's ability to challenge such factual assertions with a denial or DKI and obtain discovery on the issue and eliminates a plaintiff's prima facie obligation on such a motion to show evidence of its factual assertions.

    In this case, as the record amply demonstrates and as will be discussed below, the plaintiff failed to establish, prima facie, its status as the holder of the note at the time the action was commenced and, thus, the Supreme Court should have denied its motion for a judgment of foreclosure and sale.
    Precedent Does Not Support a Narrow Construction of a

    Responsive Pleading

    To the extent that the majority cites Matter of Fossella v Dinkins (66 NY2d at 167-168), Matter of Prudco Realty Corp. v Palermo (60 NY2d at 657), and Dougherty v City of Rye (63 NY2d at 991-992) for the proposition that the Court of Appeals has determined that the issue of lack of standing is waived unless expressly denominated as an affirmative defense in an answer or in a pre-answer motion to dismiss, I respectfully disagree that the Court of Appeals has reached such a sweeping conclusion applicable to all circumstances, including those in which the plaintiff raised the issue in its complaint. In two of the cases, Matter of Prudco Realty Corp. v Palermo (60 NY2d at 657) and Dougherty v City of Rye (63 NY2d at 991-992), the Court simply reiterated the proposition that is not in dispute, i.e., that the issue of standing must be raised in an answer or pre-answer motion to dismiss. In each case, although the Court determined that the issue was waived because it was not raised in the respective defendants' answers or in any pre-answer motion to dismiss, the Court did not conclude that a specific denial or DKI in an answer to allegations of standing in a plaintiff's complaint constituted a waiver of the defense.

    To the extent that Matter of Fossella v Dinkins (66 NY2d 162), a proceeding commenced by certain registered voters in Richmond County seeking to have the Board of Elections remove a proposed referendum from a ballot, states that "the intervenors' challenge to standing was waived because it was not raised as an affirmative defense, or by way of motion to dismiss" (id. at 167, citing Dougherty v City of Rye, 63 NY2d at 991-992, and Matter of Prudco Realty Corp. v Palermo, 60 NY2d at 657), I respectfully submit that language, which was not central to the issue before the Court, is limited to the facts of that case. That proceeding, which was commenced in July 1985 and decided by the Court of Appeals in October 1985, sought to strike a proposed New York City Charter amendment from appearing on the ballot in November of that year. Although the main issue the Court decided was the justiciability of the controversy (see Matter of Fossella v Dinkins, 66 NY2d at 167), the Court also noted that the intervenors, the Campaign for a Nuclear Navyport Referendum, had waived the issue of the petitioners' standing (see id. at 167-168). There is no way to determine from the facts set forth in Matter of Fossella v Dinkins (66 NY2d 162) or in the underlying appellate decisions (see Matter of Fossella v Dinkins, 114 AD2d 340; Matter of Fossella v Dinkins, 110 AD2d 227, affd 66 NY2d 162) and Special Term decision (see Matter of Fossella v Dinkins, 128 Misc 2d 822 , affd 114 AD2d 340) whether the petitioners there asserted allegations pertaining to their standing in their petition or whether it was raised solely by the intervenors in their arguments to the Court of Appeals.

    I agree with the majority that if a plaintiff fails to assert allegations pertaining to its standing, a defendant must raise the issue in order for the plaintiff to have notice that standing is in issue (see CPLR 3018). I respectfully submit, however, that Fossella, which does not specify whether any allegations related to standing were made in the petitioners' papers, does not necessarily [*8]stand for the sweeping proposition cited by the majority. Nor, for that matter, has this Court previously found that Fossella is binding precedent on this issue. Notably, although Fossella was decided in 1985, this Court decided Barton (149 AD3d 676), Wong (132 AD3d 825), Paulsen (125 AD3d 909), and Faruque (120 AD3d 575) between 2014 and 2017. Each of those cases held that the respective defendants preserved the issue of standing that had been raised by the respective plaintiffs by asserting specific denials in their answers.

    Likewise, this Court's determination in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239), a mortgage foreclosure action, does not dictate the conclusion reached by the majority. First, in that case, this Court reiterated a proposition that is not in dispute, i.e., that the defense of lack of standing must be raised in an "answer or pre-answer motion to dismiss" (id. at 242). Second, the question decided in Mastropaolo was whether the issue of lack of standing can be waived (see id. at 242-243), which is not in dispute here. Although this Court found that the defendant had waived the defense of lack of standing in Mastropaolo (even though the defendant had denied the plaintiff's allegation that it was the sole, true and lawful owner of the note), the focus of Mastropaolo was whether the defense of standing can be waived, not how or under what circumstances it is waived. In fact, Mastropaolo recognizes that where a defendant challenges the plaintiff's standing, a plaintiff is obligated to prove its standing (see id. at 242, citing TPZ Corp. v Dabbs, 25 AD3d 787, 789).

    As noted herein and in other cases already decided by this Court, when a plaintiff asserts facts in its complaint that can be construed as raising or addressing a matter that ordinarily would be asserted by a defendant as an affirmative defense, such as the defense of lack of standing, and a defendant specifically denies (or DKIs) such allegations, the issue is then squarely in controversy and should not be deemed to have been waived.

    Indeed, this Court also has already determined that an affirmative defense is not necessarily waived if the plaintiff itself has raised the issue; not only in Barton (149 AD3d at 678), Wong (132 AD3d at 826), Paulsen (125 AD3d at 910), and Faruque (120 AD3d at 576), but in actions unrelated to mortgage foreclosures. For example, in Green Bus Lines v Consolidated Mut. Ins. Co. (74 AD2d 136, 142-143), where the plaintiff incorporated into its complaint allegations concerning coverage exclusions that normally would be raised by a defendant as an affirmative defense, this Court determined that the defendant was not then required to expressly plead it as an affirmative defense in its answer. Likewise, in Red Hook Marble, Inc. v Herskowitz & Rosenberg (15 AD3d 560, 561, lv granted 5 NY3d 781), which was an action for a judgment declaring the rights and obligations of the parties pertaining to a plaintiff's option to purchase certain real estate from the defendant, this Court held that a "failure to plead the statute of frauds did not preclude the [defendant from obtaining] summary judgment on that ground" (id. at 561). This Court noted that the plaintiff in that case "should not have been surprised by a statute of frauds defense, where the complaint specifically alleged that [t]he option to purchase, which was drafted by or on behalf of the [d]efendant omits substantial and integral terms'" (id., citing CPLR 3018). Notably, in both of these cases, the issue turned not on specific buzz words in the respective defendants' answers, but rather on a determination of whether each respective plaintiff would be surprised by the defense at issue or whether the plaintiffs' assertion of factual allegations in the complaints demonstrated that the plaintiffs were aware that the defense was in issue and obviated the need for the defendant to assert it as an affirmative defense. Likewise, here, the factual allegations made by the plaintiff in the complaint relate to the issue of its standing and, thus, the plaintiff should not be able to contend surprise [FN7]. Given the allegations in the complaint and the factual assertions in a later affirmation by the plaintiff's counsel, the magic words "lack of standing" or "affirmative defense" are unnecessary to put the issue in controversy.

    Accordingly, I submit that the majority's determination expands the concept of waiver [*9]of affirmative defenses in a way that is inconsistent with this Court's own precedent (see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 ["Although the defendants failed to plead as an affirmative defense that the plaintiffs relinquished their claims (see CPLR 3018[b]), an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party"]; see also Red Hook Marble, Inc. v Herskowitz & Rosenberg, 15 AD3d at 561, lv granted 5 NY3d 781; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d at 142-143).

    Although there does not yet appear to be a Court of Appeals case specifically addressing this issue, that Court has tacitly acknowledged the appropriateness of an analysis that turns not on whether the words "affirmative defense" are used in a defendant's answer, but rather on whether that affirmative defense would constitute a surprise to the plaintiff in light of, among other things, the factual allegations of the complaint. In Rogoff v San Juan Racing Assn. (54 NY2d 883), the defendants moved for summary judgment dismissing the complaint on statute of frauds grounds. In opposition, the plaintiff argued that the statute of frauds defense had been waived because the defendant had not asserted it as an affirmative defense (see Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883). The First Department, citing the commentary accompanying CPLR 3018(b), determined that the plaintiff could not have been surprised by that defense given that the issue had been explored during discovery and in the plaintiff's examination before trial (see id. at 832). The Court of Appeals affirmed that determination (see Rogoff v San Juan Racing Assn., 54 NY2d at 885-886; see generally Munson v New York Seed Improvement Coop., 64 NY2d 985, 986 [in determining a waiver of an affirmative defense, Court of Appeals examined the parties' pleadings pursuant to CPLR 3018(b)]).

    The majority's view has not been adopted by the Appellate Divisions of the other Judicial Departments (see e.g. Lerwick v Kelsey, 24 AD3d 918, 919-920 [3d Dept 2005]; Sheils v County of Fulton, 14 AD3d 919, 921 [3d Dept 2005]; Allen v Matthews, 266 AD2d 782, 784 [3d Dept 1999]; Rogoff v San Juan Racing Assn., 77 AD2d at 832 [1st Dept 1980], affd 54 NY2d 883) and cannot be reconciled with the scholarly commentary about the nature of affirmative defenses and the pleading requirements of the CPLR. For example, in the authoritative text New York Practice, Professor David Siegel points out, in his chapter concerning affirmative defenses, that when "the plaintiff introduces in the complaint a matter that would ordinarily be an affirmative defense for the defendant to plead, the defendant's omission to plead it should not be held a forfeiture" (Siegel, NY Prac § 223 [6th ed Dec. 2018 Update]). This position is consistent with the intent underlying CPLR 3018(b), concerning affirmative defenses, which requires that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading" (see generally Rogoff v San Juan Racing Assn., 54 NY2d at 885-886).

    Here, the first and third paragraphs of the complaint address the plaintiff's standing, to wit, that the plaintiff is "the holder and owner of the note and mortgage," and contain almost identical language to the first and third paragraphs in Paulsen, Faruque, and Wong, and the Nelson defendants' specific denial of such allegations through their DKIs should be treated in the same way as this Court treated the denials in those cases. Thus, as set forth below, contrary to the position of the majority, I submit that the Nelson defendants did not waive the issue of the plaintiff's standing since they raised it in their answers by way of their specific DKIs as to the truth of the allegations of standing asserted by the plaintiff in the complaint.
    This Court's Prior Decisions Regarding Preservation of the

    Issue of Lack of Standing

    In light of the majority's repudiation of this Court's prior precedent that a defendant who has asserted "specific denials in his [or her] answer" in response to allegations in a plaintiff's complaint pertaining to standing has not waived the defense (South Point, Inc. v Rana, 139 AD3d at 935-936; see US Bank N.A. v Faruque, 120 AD3d at 576), it is important to examine the Court's reasoning in those cases.

    In US Bank Natl. Assn. v Faruque (120 AD3d at 576), the plaintiff asserted that it had standing to commence the action in the first paragraph of its complaint, to wit, it was "the owner and holder of a note and mortgage being foreclosed." The defendant answered the complaint and, inter alia, denied that the note was delivered to the plaintiff or that the assignment to the plaintiff had been recorded. This Court held that the defendant's specific denials of the plaintiff's allegations regarding the note and mortgage satisfied the requirements set forth in CPLR 3018(b) with respect to raising the issue of standing (see id.). This Court reasoned that the defendant, in denying those allegations in her answer, provided notice to the plaintiff that she contended that the plaintiff lacked standing [*10]and that a lack of standing defense would not take the plaintiff by surprise (see id.). The defendant was not required to assert lack of standing as an affirmative defense in order to preserve the issue (see id.; see also CPLR 3018).

    In Bank of Am., N.A. v Paulsen (125 AD3d at 910), this Court again held that the defendant did not waive the issue of standing even though the defendant did not raise it as an affirmative defense in his answer or in a pre-answer motion to dismiss. In Paulsen, the defendant asserted in his answer that, because no documentary evidence had been submitted, he lacked sufficient information to form any belief as to the truth of the plaintiff's allegation that it was the owner and holder of a note and mortgage being foreclosed. This Court held that "a fair reading of his answer reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed" and, thus, the defendant did not waive the issue of standing (see id.). This Court determined that a lack of standing argument would not take the plaintiff by surprise since the defendant, in effect, denied in his answer that the plaintiff was the owner and holder of the subject note and mortgage (see id.; see also CPLR 3018).

    Likewise, in Nationstar Mtge., LLC v Wong (132 AD3d at 826), this Court, citing CPLR 3018, Paulsen, and Faruque, held that the defendant "raised the issue of the plaintiff's standing by interposing an answer which, in effect, denied the plaintiff's allegation that it was the holder of the note." There, the plaintiff, who was not the original lender, alleged in the first paragraph of the complaint that it was the "owner and holder of a note and mortgage being foreclosed," and in the third paragraph that "[t]he mortgage was subsequently assigned to [the plaintiff] by assignment." In his answer, the defendant asserted that he "ha[d] insufficient information to form a believe [sic] as to admit or deny the allegations" in paragraphs 1 through 13 of the complaint. This Court found that the defendant's denial of the relevant allegations sufficient to preserve the issue of standing (see id.).

    Thereafter, in Bank of Am., N.A. v Barton (149 AD3d at 676), the defendants, in their original answer, asserted DKI as to the truth of the allegation that "Plaintiff is in possession of the original note with a proper endorsement and/or allonge and is therefore, the holder of both the note and mortgage, which passes as incident to the note." In their amended answer, the defendants denied those same allegations. This Court determined that the plaintiff was required to establish its standing on its motion for summary judgment because the defendants' answer contained language denying that the plaintiff was the owner and holder of the note and mortgage being foreclosed (see id.).

    I submit that the bright line test articulated by this Court in Barton (149 AD3d at 678), Wong (132 AD3d at 826), Paulsen (125 AD3d at 910), and Faruque (120 AD3d at 576) is sound and should not be repudiated. Indeed, in cases where there is no pre-answer motion to dismiss or explicit terminology entitled "defense" or "affirmative defense" in an answer but the answer contains denials of allegations in a complaint that contains facts and/or legal conclusions pertaining to the plaintiff's standing, the question should turn on whether the defendant has asserted specific denials sufficient to alert the plaintiff that its allegations of standing are in issue or whether the denials are too general and conclusory such that the plaintiff would not reasonably have notice that standing is in issue.

    As noted, I submit that the Nelson defendants' answers in this action are sufficiently specific to alert the plaintiff that standing is in issue.
    The Complaint and the Nelson Defendants' Answers

    In the case before us, and in the cases discussed supra, where this Court found that the issue of standing was not waived, the paragraphs at issue did not lump together a set of allegations pertaining to a variety of matters. Rather, the first paragraph of the complaint in each respective case set forth that the plaintiff had standing to commence the action, to wit, that it was the owner and holder of the note and mortgage at issue, and, in each case, the defendants specifically denied that allegation or DKI'd as to the truth of that allegation (see US Bank Natl. Assn. v Faruque, 120 AD3d at 576; see also Bank of Am., N.A. v Barton, 149 AD3d at 678; Nationstar Mtge., LLC v Wong, 132 AD3d at 826; Bank of Am., N.A. v Paulsen, 125 AD3d at 910).

    Here, as in Barton, Wong, Paulsen, and Faruque, the plaintiff's allegations in the complaint assert, in effect, that it had standing to commence the action. Each of the Nelson defendants, in their pro se answers, admitted that they had duly executed and delivered the note obligating them to pay the unpaid balance of the debt (second paragraph), but DKI'd as to the truth of whether the plaintiff was an "owner" and "holder" of the note (first paragraph), and whether an [*11]assignment of the mortgage to the plaintiff was recorded (third paragraph). The Nelson defendants' separate, identical answers consisted of handwritten responses on court-issued forms. On these forms, the Nelson defendants' only option was to list the number of each paragraph in designated spots either admitting allegations in the paragraph or denying knowledge or information sufficient to form a belief as to the truth of the allegations in the paragraph. The Nelson defendants were deemed to have denied each and every other allegation in the complaint which was not contained in the selected paragraphs.

    Thus, the Nelson defendants, in effect, specifically denied the plaintiff's allegation that it was the owner and holder of the note at the time the action was commenced and, by doing so, put the plaintiff on notice that standing was in issue, consistent with CPLR 3018(b).

    Accordingly, in light of this Court's precedent and pursuant to the facts of this case, it is my position that the Nelson defendants did not waive the issue of standing as a defense (see CPLR 3018; Bank of Am., N.A. v Barton, 149 AD3d at 678; Nationstar Mtge., LLC v Wong, 132 AD3d at 826; Bank of Am., N.A. v Paulsen, 125 AD3d at 910; US Bank Natl. Assn. v Faruque, 120 AD3d at 576).

    Since the Nelson defendants put standing in issue, the plaintiff was required to prove its standing in order to be entitled to a judgment of foreclosure and sale (see Bank of N.Y. Mellon v Gales, 116 AD3d 723, 724; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 932). As discussed below, the plaintiff failed to do so.
    Plaintiff Failed to Establish a Prima Facie Showing of

    Standing

    A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, at the time the action was commenced, it was either the holder or assignee of the underlying note (see U.S. Bank, N.A. v Noble, 144 AD3d at 787). A "holder" is the person in possession of the subject note "payable either to bearer or to an identified person that is the person in possession" (UCC 1-201[21][A]; see U.S. Bank N.A. v Clement, 163 AD3d at 743). Here, the evidence submitted by the plaintiff in support of its motion for a judgment of foreclosure and sale did not demonstrate that the note was physically delivered to it payable either to the bearer or to the plaintiff, or that the note had been assigned to it prior to the commencement of the action (see Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680, 682-683; HSBC Bank USA v Hernandez, 92 AD3d 843, 844). The plaintiff did not attach a copy of the note to the complaint, and there is nothing in the record connecting the plaintiff's alleged possession of the note to its commencement of this action. The affidavit of the Vice President of Loan Documentation of Wells Fargo Bank, N.A., as servicer for the plaintiff, stated in a conclusory fashion that the plaintiff or an agent of the plaintiff was in possession of the note, without providing any factual details of a physical delivery and failing to specify when the plaintiff acquired the note or whether the plaintiff possessed the note prior to the commencement of the action. Moreover, this affidavit (1) failed to show that the servicer's records had any connection with the plaintiff's records; (2) failed to specify which records were reviewed; (3) failed to show how the servicer's records pertained to the note at issue; and (4) did not have the records attached. Thus, the plaintiff failed to establish that it was the holder of the note prior to commencing the action (see US Bank Natl. Assn. v Faruque, 120 AD3d at 577; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d at 682). The record only contains documents that indicate that the plaintiff acquired the subject mortgage from Mortgage Electronic Registration Systems, Inc., by assignment on August 10, 2009; the record contains no documents showing that the plaintiff possessed the note or that the note was transferred to it. The plaintiff therefore failed to demonstrate that it was the holder or assignee of the note at the time the action was commenced (see Bank of Am., N.A. v Paulsen, 125 AD3d at 910-911; US Bank Natl. Assn. v Faruque, 120 AD3d at 577) and therefore did not establish, prima facie, that it had standing to commence this action (see Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703-704).

    Accordingly, I would modify the order appealed from by deleting the provision thereof granting the plaintiff's motion, and substituting therefor a provision denying the plaintiff's motion.
    The Supreme Court Properly Denied the Nelson Defendants'

    Cross Motion to Dismiss

    Notwithstanding the foregoing, I concur with my colleagues in the majority to the extent that they affirm so much of the order as denied the Nelson defendants' cross motion to dismiss the complaint insofar as asserted against them. Even though the plaintiff did not establish, prima facie, that it had standing to commence this action, I agree with the Supreme Court's denial of that [*12]branch of the Nelson defendants' cross motion which was to dismiss the complaint insofar as asserted against them on the ground of lack of standing (see US Bank Natl. Assn. v Faruque, 120 AD3d at 578). "The issue of standing cannot be determined as a matter of law on this record, since a question of fact remains with respect to the issue of whether the plaintiff was the lawful holder of the note when it commenced the action" (id.; see Bank of Am., N.A v Paulsen, 125 AD3d at 911).
    The RPAPL 1303 Notice

    For the reasons articulated by the majority, I agree and therefore concur with my colleagues that the denial of that branch of the Nelson defendants' cross motion which was to dismiss the complaint insofar as asserted against them for lack of service of the RPAPL 1303 notice was proper (see e.g. Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102-103).
    Conclusion

    Accordingly, for the reasons set forth above, I would modify the order by denying the plaintiff's motion for a judgment of foreclosure and sale, since a triable issue of fact exists regarding whether the plaintiff was the holder of the note at the time the action was commenced (see Bank of Am., N.A. v Paulsen, 125 AD3d at 911; US Bank Natl. Assn. v Faruque, 120 AD3d at 578; HSBC Bank USA v Hernandez, 92 AD3d at 844).
    ENTER:

    Aprilanne Agostino

    Clerk of the Court
    Footnotes

    Footnote 1:Since the allegations under review in the complaint before us were purely factual in nature, and did not consist of mere legal conclusions (e.g., "the plaintiff has standing to commence this action"), our current analysis is limited to a discussion of the effect of a denial of such factual allegations. We express no opinion herein with regard to the question of what effect a denial of an allegation setting forth mere legal conclusions might be.

    Footnote 2:Our dissenting colleague's additional reliance upon the decisions in Red Hook Marble, Inc. v Herskowitz & Rosenberg (15 AD3d 560) and Green Bus Lines v Consolidated Mut. Ins. Co. (74 AD2d 136) as authority for the proposition that the Nelson defendants did not need to assert standing as an affirmative defense because the allegations of the plaintiff's complaint already put standing in issue is misplaced. In both Red Hook and Green Bus Lines, the complaints actually set forth the facts supporting the defenses subsequently relied upon by the defendants in those actions, a highly unusual circumstance that distinguishes those decisions from the case before us. Conversely, in the present case, the plaintiff's complaint did not set forth any facts to support a defense of lack of standing; rather, it unequivocally alleged that the plaintiff was the owner and holder of the note and mortgage being foreclosed, thereby negating any standing issue. Likewise, the dissent's further citation to decisions of this and other appellate courts which hold that an unpleaded defense may serve as the basis for summary judgment in limited circumstances and absent surprise or prejudice to the opponent fails to overcome the relevant decisional law governing waiver of the defense of standing set forth herein.

    Footnote 1:The issue of whether a plaintiff in a mortgage foreclosure action has standing is particularly significant given the financial crisis that certain banks plunged this country into in the early part of this century with their questionable and outright unethical business practices and the continuing allegations by the defense bar of rampant fraud in the industry, including whether plaintiffs actually have any connection whatsoever to the notes and debts sued upon in the cases before the courts (see e.g. Brady Dennis, Supervisors directed banks' mortgage misconduct, HUD report says, The Washington Post, Mar. 13, 2012). These policy considerations, however, have not been raised here nor am I suggesting that the plaintiff in this action is alleged to have engaged in any wrongdoing whatsoever.

    Footnote 2: See e.g. Stark v Goldberg, 297 AD2d 203, 204 (1st Dept 2002) (plaintiff cannot proceed in the absence of standing, so derivative action properly subject to sua sponte dismissal despite lack of any assertion by defendants objecting to plaintiff's standing); Axelrod v New York State Teachers' Retirement Sys., 154 AD2d 827, 828 (3d Dept 1989) (since standing is jurisdictional and goes to a court's authority to resolve litigation, court can raise matter sua sponte and dismiss complaint); Matter of Eaton Assoc. v Egan, 142 AD2d 330, 334-335 (3d Dept 1988) ("Standing goes to the jurisdictional basis of a court's authority to adjudicate a dispute" and thus a complaint is subject to sua sponte dismissal despite a defendant's failure to raise an objection to lack of standing).

    Footnote 3: There, the Court, in its majority opinion deciding the issue of whether the plaintiffs in that action had standing to challenge a law enacted by Suffolk County which, in essence, prohibited retail food establishments from using plastic packaging (denominated by that Court as the Plastics Law), never addressed the issue of whether the defendant had challenged the plaintiffs' standing in its answer. Rather, the dissent in that matter pointed out in a footnote that, "n its original answer [the defendant Suffolk County] did not raise the issue of plaintiffs' standing to contest [whether the County in enacting the Plastics Law had complied with the State Environmental Quality Review Act]" (77 NY2d at 785 n 4 [Hancock, Jr. J., dissenting]). The dissent also noted that the Supreme Court had allowed the County to amend its answer to include it (see id.).

    Footnote 4: For example, in JP Morgan Chase Bank, N.A. v Butler (129 AD3d at 780), this Court held that a standing defense was waived where the pro se defendant asserted only a general denial of allegations contained in the complaint and failed to check a box for any of eight defenses listed on the court-issued form entitled "Verified Answer To Foreclosure Complaint" including the defense of "Lack of Standing to Sue: Plaintiff does not have standing to sue because it was not the legal owner of the Note and/or Mortgage at the time it commenced this foreclosure lawsuit."

    Footnote 5: Notably, in JP Morgan Chase Bank, N.A. v Butler (129 AD3d at 780), the court-issued form answer provided to pro se defendants to be used in foreclosure actions expressly links the defense of lack of standing with
    2 weeks ago
  • Charles Ponzi created a new topic ' John Brumby quits Huawei' in the forum.
    www.smh.com.au/by/richard-baker-hve6o

    Brumby quits Huawei board days after US criminal charges outlined

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    By Richard Baker & Nick McKenzie
    1 February 2019 — 11:32am

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    Former Victorian premier John Brumby has resigned from the board of Huawei’s Australian operations in a damaging blow to the Chinese technology giant just days after the US government outlined a criminal case against it.

    Mr Brumby’s decision to quit comes two days after The Age and the Sydney Morning Herald revealed that Meng Wanzhou, the Huawei executive at the centre of the alleged global criminal conspiracy, established and oversaw the company’s activities in Australia between 2005 and 2011.
    Former Victorian premier John Brumby.

    Former Victorian premier John Brumby.Credit:Paul Jeffers

    The former Labor politician’s future at Huawei Technologies (Australia) has been under a cloud since June, after he announced he was reviewing all his directorships upon assuming the role of Chancellor of Melbourne’s La Trobe University.

    This week’s release of an indictment against Huawei and key executives by the US Justice Department has increased interest in Mr Brumby's position on the company's board.
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    Mr Brumby said on Friday that the timing of his resignation, which will be effective from next month, was unrelated to the scandal enveloping the company.

    He said he had informed the board a year ago of his intention to resign and was proud of the firm’s local growth.

    ‘‘We have had some challenging times ... Huawei Australia has continued to go from strength to strength.’’

    Ms Wanzhou is alleged by the US to have been a key player in a conspiracy to defraud international banks and US officials about the company’s Iran operations. The criminal case against Huawei also involves allegations it stole trade secrets from rival T-Mobile.

    Though there is no suggestion that Ms Wanzhou was engaged in any criminal activity in Australia, the US Department of Justice case against her and the company includes the period of time she was overseeing Huawei’s corporate governance and strategy in Australia.

    The December arrest of Ms Wanzhou in Canada at the request of the US government triggered a strong response from Beijing, with two Canadian citizens and Chinese-born Australian writer Yang Hengjun detained in China.
    Mr Brumby will become Chancellor of La Trobe University in March.

    Mr Brumby will become Chancellor of La Trobe University in March.

    Ms Wanzhou is the daughter of Huawei founder Ren Zhengfei, a former engineer in the Chinese military.

    Mr Brumby joined the Huawei board in Australia in 2011 shortly before the departure of Ms Wanzhou. Former foreign minister Alexander Downer and former Navy rear-admiral John Lord were also appointed to the Huawei board in an effort by the company to build political and defence credibility.

    The high-profile Australian trio have been outspoken in defending Huawei against criticism from Australia and the US, whose respective intelligence agencies fear the company could be vulnerable to pressure from the Chinese Communist Party to spy on or sabotage data and phone networks.

    Mr Brumby, Mr Lord and, until his 2014 appointment as Australia’s high commissioner to the UK, Mr Downer, have all previously pointed out that there has been no hard evidence produced anywhere to show Huawei was involved in espionage activities on behalf of the Chinese government.

    The company has made a priority of ensuring its Australian directors have been looked after well at home and abroad. It is understood some Australian-based directors have been paid as much as $250,000 a year, though Huawei has declined to confirm this.

    Despite its high-powered Australian board, Huawei has been prevented by successive Australian governments from participating in the NBN rollout and the 5G mobile network, with security agencies warning against the involvement of the Chinese firm.

    Australia’s hard line position on Huawei has emboldened other western allies to restrict the Chinese company’s involvement in sensitive infrastructure.

    In a statement released in the wake of the US charges, Huawei said it was disappointed to learn of the charges and believed the US courts would find no evidence Ms Meng or the company breached US laws.

    More to come

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    National security
    NBN
    5G Rollout
    John Brumby
    Meng Wanzhou
    Huawei
    China

    Richard Baker
    Richard Baker

    Richard Baker is a multi-award winning investigative reporter for The Age.
    Nick McKenzie
    Nick McKenzie

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    Nick McKenzie is an investigative reporter for The Age. He's won seven Walkley awards and covers politics, business, foreign affairs and defence, human rights issues, the criminal justice system and social affairs.

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    3 weeks ago
  • Charles Ponzi created a new topic ' Guilia M Bill Shorten and Clair ONeil's video' in the forum.
    Which bank knows of fraud rings and prefers to "Deny Until they die"??? twitter.com/billshortenmp/status/1091095669119447040/video/1

    And which Legal Services Board gets complained about by relatives of friends of GW Bush?

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    3 weeks ago
  • Charles Ponzi created a new topic ' Did the LSBC "blab": Mr Davidson CPDP' in the forum.
    3. Overview of Current Secrecy Laws
    Specific statutory secrecy provisions

    3.20 Secrecy provisions contained in Commonwealth legislation are many and varied. As noted in Chapter 1, the ALRC has conducted a mapping exercise to identify and analyse provisions in Commonwealth legislation that impose secrecy or confidentiality obligations on individuals or bodies in respect of Commonwealth information. The ALRC has identified 506 secrecy provisions in 176 pieces of primary and subordinate legislation. A table of secrecy provisions in Commonwealth legislation is set out in Appendix 5.

    3.21 Approximately 70% of the statutory secrecy provisions identified create criminal offences. Around 75% of these offences are indictable offences—that is, offences punishable by imprisonment for a period exceeding 12 months.[27] The remainder are summary offences—that is, offences which are not punishable by imprisonment, or are punishable by imprisonment for a period not exceeding 12 months.[28]

    3.22 Some secrecy provisions do not expressly impose criminal penalties for breach, but rather impose a duty of confidentiality on individuals. For example, the secrecy provision in the Australian Hearing Services Act 1991 (Cth) provides that

    it is the duty of a person who is a Director, a member of the staff of the Authority, a member of a committee or a person engaged as a consultant under section 50 not to disclose any information that has been acquired by the person because of being such a Director, member or consultant.[29]

    3.23 While provisions of this kind are not, in themselves, offences, s 70 of the Crimes Act 1914 (Cth) may attach criminal sanctions to the breach by a Commonwealth officer of this kind of ‘duty not to disclose’.[30] In this way, specific secrecy provisions¾that do not themselves create an offence¾interact with general offences in the Crimes Act to criminalise the disclosure of some information by Commonwealth officers.

    3.24 The remaining non-criminal secrecy provisions establish rules for the handling of certain information by officers or agencies. For example, s 41(2) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) provides that the Institute or Council shall not disclose information if that disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders. As discussed in Chapter 1, the ALRC has taken the view that only those provisions that prohibit the disclosure of information are secrecy provisions.

    3.25 Statutory secrecy provisions exhibit four common elements:

    protection of particular kinds of information;
    regulation of particular persons;
    prohibition of certain kinds of activities in relation to the information; and
    exceptions and defences which set out the circumstances in which a person does not infringe a secrecy provision.

    3.26 It is notable that this list of the common elements of secrecy provisions does not include an express requirement that the disclosure cause or be likely to cause harm. Only a small number of statutory secrecy offences expressly include such a harm element. For example, the Defence Force Discipline Act 1982 (Cth) requires that, for an offence to have been committed, the unauthorised disclosure of information must be ‘likely to be prejudicial to the security or defence of Australia’.[31]

    3.27 The following section examines each of these elements in turn. It provides examples of the different approaches taken across Commonwealth legislation to the protection of official information, and draws attention to the kinds of interests that secrecy provisions seek to protect from harm. Where relevant, the proportion of secrecy provisions that exhibit particular variations is noted.[32]
    What kind of information is protected?

    3.28 Secrecy provisions in Commonwealth legislation prohibit the unauthorised handling of various kinds of information. The information protected by secrecy provisions can be considered in accordance with the following six categories:

    any information;
    confidential information;
    personal information;
    commercial information;
    information relating to an investigation; and
    other types of information.

    Any information

    3.29 Approximately 15% of secrecy provisions in Commonwealth legislation relate to the unauthorised disclosure or use of any information. These provisions typically cover any information obtained by a person during the course of his or her employment.[33] Generally, these provisions prohibit the disclosure of any information obtained by a person carrying out, performing or exercising duties, functions or powers under:

    the Act in which the provision is located;
    a particular part of the Act in which the provision is located;
    regulations made under the Act in which the provision is located; or
    another Act.

    3.30 Australian Public Service (APS) employees are subject to the APS Code of Conduct, set out in s 13 of the Public Service Act 1999 (Cth), which imposes a number of duties on APS employees that limit the disclosure of official information. In particular, the Code of Conduct requires an employee to behave honestly and with integrity in the course of his or her employment,[34] and to maintain appropriate confidentiality about dealings the employee has with any minister or minister’s member of staff.[35]

    3.31 Section 13(13) of the Public Service Act provides that an APS employee must also comply with any other conduct requirement prescribed by the regulations. Regulation 2.1(3) of the Public Service Regulations 1999 (Cth) provides that:

    an APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

    3.32 Legislation establishing a statutory authority or independent agency may also include a similar secrecy provision to cover the employees of that authority or agency.[36]

    3.33 Section 70 of the Crimes Act covers a wide range of information in that it makes it an offence for a Commonwealth officer to disclose ‘any fact or document’ obtained by virtue of his or her position as a Commonwealth officer that it is ‘his or her duty not to disclose’. Section 70 is discussed in more detail below.
    Confidential information

    3.34 About 8% of secrecy provisions identified by the ALRC aim to prevent the unauthorised disclosure of confidential information. Some provisions prohibit the disclosure of ‘confidential’ information, which may or may not be defined in the Act.[37] Others prohibit the disclosure of information that was supplied ‘in confidence’.[38] The most general provision of this kind is reg 2.1(4) of the Public Service Regulations:

    An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if the information:

    (a) was, or is to be, communicated in confidence within the government; or

    (b) was received in confidence by the government from a person or persons outside the government;

    whether or not the disclosure would found an action for breach of confidence.

    3.35 Provisions covering boards and committees also tend to protect information provided to them in confidence.[39] Meanwhile, other provisions that protect confidential information are expressed to cover information the disclosure of which would constitute a breach of confidence.[40]
    Personal information

    3.36 A significant proportion of Commonwealth secrecy provisions—approximately one third—prohibit the disclosure of personal information. The majority of these provisions refer to information about a ‘person’. As such, these provisions would also capture the disclosure of information about a body politic or corporate as well as a natural person.[41] However, some legislation refers to information relating to the affairs of an individual,[42] which refers to a natural person only.[43]

    3.37 Some secrecy provisions that protect information of this type use the term ‘personal information’,[44] which is the term used in the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth).[45] Other provisions refer to information ‘about a person’[46] or ‘concerning another person’.[47] The majority of secrecy provisions refer to information about the ‘affairs’ of another person.[48]

    3.38 Secrecy provisions covering personal information are commonly found in contexts where individuals are required to provide information to government, such as taxation, health and social services, with the aim of protecting personal privacy.

    3.39 Other secrecy laws that protect personal information prohibit the disclosure of information about the identity of particular persons, such as participants in witness protection programs,[49] officers of the Australian Security Intelligence Organisation (ASIO)[50] or people with assumed identities.[51] However, the purpose of secrecy provisions of this kind may extend beyond the protection of personal privacy to preventing other harms, for example, harm to national security or public safety.
    Commercial information

    3.40 Approximately 8% of secrecy provisions identified by the ALRC protect commercial information. Some of these provisions specify the type of confidential commercial information protected.[52] Other provisions protect commercial information by prohibiting disclosures that are likely to cause harm to commercial interests. For example, s 74 of the Wheat Export Marketing Act 2008 (Cth) prohibits the disclosure of ‘protected confidential information’, which is defined as information provided under certain provisions of the Act, the disclosure of which could cause financial loss or detriment to a person or benefit a competitor of the person.[53] While not expressly designated commercial information, secrecy provisions in legislation that regulate corporate entities, are likely to predominantly cover commercial information. For example, secrecy provisions in the Reserve Bank Act 1959 (Cth) protect information disclosed or obtained under, or for the purposes of the Act relating to the affairs of a financial institution; related body corporate or a person who has been, is, or proposes to be, a customer of a financial institution.[54]
    Information relating to investigations

    3.41 About 10% of secrecy provisions protect information which, if disclosed without authority, could prejudice the conduct of an investigation or inquiry. Such provisions are common in legislation relating to law enforcement, where secrecy provisions may prohibit the disclosure of information about the existence of a law enforcement operation or investigation;[55] the existence or content of a warrant,[56] summons or other notice or request,[57] or the questioning or detention of a person in certain circumstances.[58]

    3.42 Secrecy provisions may also protect information obtained during or relating to investigations or inquiries outside of the law enforcement context. For example, secrecy provisions in the Transport Safety Investigation Act 2003 (Cth) prohibit the unauthorised disclosure of ‘restricted information’, which is defined to include information obtained and recorded in the course of an investigation.[59] Some secrecy provisions also protect information obtained in the exercise of entry and search powers,[60] or given in evidence before a private hearing.[61]

    3.43 Other secrecy provisions are framed to prohibit the disclosure of information that may prejudice an investigation. For example, s 35A of the Ombudsman Act 1976 (Cth) prohibits the Ombudsman from disclosing information with respect to a particular investigation where the disclosure of that information is likely to interfere with the carrying out of any other investigation or the making of a report.
    Other information

    3.44 Specific secrecy provisions protect a variety of other, more particular kinds of information relevant to the context and function of particular legislative regimes, including information:

    of a specific type, such as cockpit voice recordings or on‑board recordings[62] or the content or substance of a telegram;[63]
    provided as advice from particular committees and bodies;[64]
    derived from inspecting records;[65]
    comprising communications made during family counselling or dispute resolution;[66] and
    contained in applications, such as patent[67] or mining applications.[68]

    3.45 Two specific kinds of ‘other’ information—defence and security information, and Indigenous cultural information—warrant more detailed explanation.

    3.46 Defence and security information—a small number of specific secrecy provisions aim to prevent the unauthorised disclosure of defence or national security information.[69] Historically, the protection of this kind of information has been a core function of secrecy provisions. In addition to specific secrecy offences, defence and national security information is also protected by s 79 of the Crimes Act (disclosure of official secrets) and s 91.1 of the Criminal Code (Cth) (espionage).

    3.47 Section 79 includes offences for the disclosure of information:

    made or obtained in contravention of pt VII of the Crimes Act (unlawful sounding) or s 91.1 of the Criminal Code (espionage);
    relating to a prohibited place or anything in a prohibited place that the person knows, or ought to know, should not be communicated.[70]

    3.48 The most serious offence created by s 79 is the offence of communicating, retaining or receiving information with the intention of prejudicing the security or defence of the Commonwealth.[71]

    3.49 Section 91.1 of the Criminal Code makes it an offence for a person to communicate information concerning the security or defence of the Commonwealth or another country to a foreign country or organisation with the intention of prejudicing the security or defence of the Commonwealth, or of giving an advantage to another country’s security or defence. It is also an offence to make, obtain or copy such information with the intention of delivering it to a foreign country or organisation in order to prejudice the security or defence of the Commonwealth[72] or give an advantage to another country’s security or defence.[73]

    3.50 In some secrecy provisions, a designated person determines the threshold question of whether information will prejudice the security or defence of Australia. For example, s 108 of the Designs Act 2003 (Cth) provides that the Registrar of Designs may prohibit or restrict the publication of information about the subject matter of a design application if it appears to be ‘necessary or expedient to do so in the interests of the defence of the Commonwealth’.[74]

    3.51 Indigenous sacred or sensitive information—some secrecy provisions prohibit the disclosure of information that is considered sacred or otherwise significant by Indigenous peoples. For example, s 193S(3)(b) of the Aboriginal and Torres Strait Islander Act 2005 (Cth) prohibits the disclosure by a designated person[75] of any information that he or she is aware is considered sacred or significant by a particular group of Aboriginal persons or Torres Strait Islanders, where its disclosure would be inconsistent with the views or sensitivities of the members of the group. Similarly, s 41 of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) provides that the Institute must not disclose information if the disclosure would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders.[76]
    Whose conduct is regulated?

    3.52 The ALRC’s mapping exercise shows that a range of different individuals and entities may be subject to secrecy provisions, including:

    Commonwealth employees;
    organisations or individuals providing services for or on behalf of the Commonwealth;
    Commonwealth agencies;
    other specific categories of organisation or individual; and/or
    any person.

    Commonwealth employees

    3.53 Approximately one third of Commonwealth secrecy provisions apply to Commonwealth employees. In some cases, the provisions apply to all Commonwealth employees,[77] or all employees of the APS.[78]

    3.54 Regulation 2.1 of the Public Service Regulations sets out the general duty of an APS employee not to disclose official information where it is reasonably foreseeable that the disclosure could prejudice the effective working of government. An APS employee is defined in s 7 of the Public Service Act to mean a person engaged by an agency head or by the Public Service Commissioner as the result of an administrative rearrangement. An agency is defined to mean a department, an executive agency established by the Governor-General, or a statutory agency.[79]

    3.55 Section 70 of the Crimes Act regulates conduct by ‘Commonwealth officers’. The definition of the term ‘Commonwealth officer’ in s 70 is discussed in further detail below and in Chapter 6.

    3.56 Other secrecy provisions regulate officers in specific Commonwealth agencies, such as employees of Australia Post[80] or the staff of the Australian Human Rights Commission.[81] A small number of secrecy provisions apply to specific agency heads or officers—for example, the Commonwealth Ombudsman.[82]
    Service providers to the Commonwealth

    3.57 Some secrecy provisions expressly refer to a wider range of individuals than Commonwealth employees. This reflects changes to the structure of government and government service provision, and the view that information should be protected at every point in the ‘distribution chain’, including where that information is handled outside the public sector.[83]

    3.58 Around 10% of secrecy provisions expressly regulate consultants[84] and others who provide goods or services for or on behalf of the Australian Government.[85] In addition, service providers are often required by agencies to comply with confidentiality undertakings as part of service provision arrangements.[86]
    Commonwealth agencies

    3.59 About 10% of secrecy provisions apply to specific agencies or statutory corporations, as distinct from individuals.[87] The majority of provisions that apply to agencies are not criminal in nature, but are a component of a broader information-handling regime. For example:

    Research Involving Human Embryos Act 2002 (Cth) s 29(4) requires the Licensing Committee to make certain information publicly available in a database; however, the database must not include ‘confidential commercial information’.
    Trade Practices Act 1974 (Cth) s 89(3) requires the Australian Competition and Consumer Commission (ACCC) to keep a register of applications for authorisations in respect of restrictive trade practices. Section 89(5A) requires that, where requested, the ACCC must keep certain information confidential, including information relating to ‘secret formulas or processes’ and the cost of manufacturing, producing or marketing goods and services.
    Veterans’ Entitlements Act 1986 (Cth) s 118ZF(7) provides that after determining a claim for a seniors health card, the Repatriation Commission must give the claimant a copy of its determination, except to the extent that the information is of a ‘confidential nature’ or might, if communicated, ‘be prejudicial to the claimant’s physical or mental health or well-being’.

    3.60 Agencies are also subject to a range of other information-handling obligations, including under the Privacy Act and Archives Act 1983 (Cth). These provisions are discussed further in Chapter 16.
    Other organisations and individuals

    3.61 Other secrecy provisions regulate a wide range of specific organisations and individuals, such as:

    state, territory or local government employees;[88]
    organisations and individuals who engage in federally funded or regulated areas of the private sector—for example, aged care providers;[89] and
    individuals assisting in government inquiries or studies.[90]

    Any person

    3.62 Around 30% of Commonwealth secrecy provisions are stated to apply to the handling of information by ‘any person’. In the areas of criminal law enforcement and health and welfare, secrecy provisions that regulate the conduct of any person make up a high proportion (slightly less than half) of all secrecy provisions.

    3.63 Secrecy provisions may be framed to regulate the conduct of any person where legislation provides a discretion to provide protected information to a potentially broad range of people. For example, s 135A(3) of the National Health Act 1953 (Cth) permits the Secretary of the Department of Health and Ageing (DoHA) to disclose information to any person if the Minister certifies that disclosure to that person is necessary in the public interest. Section 135A(4) then applies the same secrecy obligations to any person who receives information pursuant to such a disclosure.

    3.64 Secrecy provisions may also regulate the conduct of any person where the provision creates an ancillary offence such as soliciting, obtaining or offering to supply protected information.[91]
    Current and former parties

    3.65 Many secrecy provisions expressly regulate the behaviour of persons who hold, or have previously held positions through which they have access to Commonwealth information.

    3.66 An example of a specific secrecy provision governing both current and former officers is s 191 of the Aboriginal and Torres Strait Islander Act, which expressly applies to a person:

    (a) who is or has been an Indigenous Business Australia Director or acting Indigenous Business Australia Director;

    (b) who is or has been the Indigenous Business Australia General Manager or an acting Indigenous Business Australia General Manager;

    (c) who is or has been employed or engaged under section 175 or 178;

    (d) who is performing, or who has performed, duties on behalf of Indigenous Business Australia pursuant to an arrangement under section 176; or

    (e) whose services are being or have been made available to Indigenous Business Australia pursuant to an arrangement under section 177.

    3.67 The application of s 70 of the Crimes Act, which is expressed to apply to both current and former Commonwealth officers, may extend the application of other statutory secrecy provisions to former officers.
    What conduct is regulated?

    3.68 The vast majority (90%) of secrecy provisions prohibit the disclosure of Commonwealth information. Conduct such as tabling information in parliament, or serving information on other parties, may be regarded as forms of disclosure.

    3.69 Secrecy provisions may also regulate other activities such as making a record (30%), using information (20%) or soliciting information (less than 5%).

    3.70 The ALRC has identified a small number of secrecy provisions that regulate obtaining information. For example, under s 203 of the Social Security (Administration) Act 1999 (Cth), a person commits an offence if he or she intentionally obtains information without authorisation and knew or ought reasonably to have known that the information was protected information.[92] Two secrecy provisions apply to the mere receipt of information.[93]

    3.71 Some secrecy provisions regulate both the initial and subsequent unauthorised handling of Commonwealth information. For example, under s 23E of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth):

    (4) A person commits an offence if:

    (a) information is communicated to the person (the first person) in accordance with [the Act]; and

    (b) the information is communicated by a person (the second person) to whom this section applies; and

    (c) the second person acquired the information because of his or her membership of, or employment by, a Land Council or his or her activities as an authorised person; and

    (d) the information concerns the affairs of a third person; and

    (e) the first person, either directly or indirectly, makes a record of, or divulges or communicates the information to any other person.

    3.72 Other provisions make it an offence for a recipient of certain information then to use or disclose that information for other purposes. For example, under s 86-3 of the Aged Care Act 1997 (Cth), the Secretary of DoHA may disclose protected information in certain circumstances, including where there is a risk to a person’s health and safety. Under s 86-5, it is an offence for a person who receives information by virtue of s 86‑3 to make a record of, disclose or otherwise use the information other than for the purpose for which the information was disclosed.
    Exceptions and defences

    3.73 Most secrecy provisions contain exceptions or defences. An ‘exception’ is a provision that limits the scope of conduct prohibited by a secrecy law, while a ‘defence’ is a provision that excuses conduct that is otherwise prohibited by a secrecy provision. An exception may provide, for example, that a Commonwealth officer does not commit an offence where disclosure of information is made in the course of performing duties under the relevant legislation. Exceptions are more commonly included in Commonwealth secrecy laws than defences. The following discussion summarises exceptions and defences currently contained in secrecy laws.

    3.74 Almost 20% of secrecy provisions do not contain any express exceptions or defences. However, defences may nevertheless be available under provisions of the Criminal Code or at common law. In particular, the Criminal Code sets out general principles of criminal responsibility applicable to offences against the laws of the Commonwealth. The Code provides, for example, that even if an offence provision is stated to be an offence of strict liability, the defence of mistake of fact remains available.[94]
    Disclosure in the course of functions and duties

    3.75 Approximately 35% of secrecy provisions allow information handling in the course or performance of a person’s functions and duties as an employee or officer. Taxation secrecy laws, for example, generally allow information handling in the ‘course of duties of an officer’. Secrecy obligations placed on officers by the Taxation Administration Act 1953 (Cth) do not apply ‘to the extent that the person makes a record of the information, or divulges or communicates the information … in the performance of the person’s duties as an officer’.[95] Similar formulations appear in other areas of Commonwealth legislation.[96]
    Disclosure for the purposes of a particular law

    3.76 Many secrecy provisions incorporate exceptions that allow the disclosure of information as required by a particular law. Secrecy provisions also commonly provide that information may be disclosed ‘for the purposes of this Act’.[97] Some secrecy provisions also permit disclosure for the purposes of other legislation[98] or intergovernmental arrangements.[99]
    Disclosure authorised by specified persons

    3.77 Approximately 15% of secrecy provisions permit the disclosure of information at the discretion of specified office-holders or other persons. For example, the Superannuation Industry (Supervision) Act 1993 (Cth) provides that it is not an offence to disclose information where disclosure is ‘approved by the Commissioner of Taxation by instrument in writing’.[100]

    3.78 Other secrecy provisions permit a specified person to authorise the handling of information—generally the head of an agency or the responsible minister—provided that other criteria are met. For example:

    · the Customs Administration Act 1985 (Cth) provides an exception to secrecy provisions where the disclosure of information is authorised by the Chief Executive Officer of Customs and the information will be used by another Australian Government agency for the purposes of that agency’s functions;[101]

    · the Health Insurance Act 1973 (Cth) provides an exception to secrecy provisions where the Minister certifies, by instrument in writing, that it is necessary in the public interest that information be disclosed;[102] and

    · the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) provides an exception to secrecy provisions where access to information is for the purposes of investigating a breach of a law of the Commonwealth and is authorised by the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre.[103]

    Disclosure to specified persons or entities

    3.79 Approximately 30% of secrecy provisions provide exceptions where disclosure is made to specified persons or entities. Often, the purpose of such exceptions is to authorise information sharing among Australian Government agencies. For example:

    · the Australian Prudential Regulation Authority Act 1998 (Cth) (APRA Act) permits the disclosure of information to the Australian Statistician, the Reserve Bank of Australia, auditors and actuaries;[104]

    · the Industry Research and Development Act 1986 (Cth) permits the disclosure of information to the Minister, ministerial staff, the Secretary of the Department or a designated officer of the Department;[105] and

    · the Gene Technology Act 2000 (Cth) permits the disclosure of information to ‘the Commonwealth or a Commonwealth authority’, a state agency, or the Gene Technology Technical Advisory Committee.[106]

    3.80 In some instances, secrecy provisions permit disclosure in circumstances, or to persons or entities, as prescribed by regulation.[107]
    Disclosure for the purposes of legal proceedings

    3.81 Approximately 15% of secrecy provisions provide exceptions to expressly permit the disclosure of information for the purposes of court or tribunal proceedings.[108]

    3.82 Some secrecy provisions provide that certain persons are not required to disclose information in court or tribunal processes, other than for the purposes of the Act under which the information was obtained.[109] As noted in Chapter 1, the extent to which Commonwealth officers can be compelled to provide information in the course of investigations or in legal proceedings is not a focus of this Inquiry.
    Disclosure for the purposes of law enforcement

    3.83 Approximately 15% of secrecy provisions include exceptions to allow the handling of information for various law enforcement and investigatory purposes. While provisions of this kind often refer to the investigation of criminal offences,[110] some exceptions to secrecy provisions extend to broader law enforcement and administration of justice concerns. For example:

    · the Crimes Act allows forensic DNA information to be disclosed for the purposes of a coronial inquest or inquiry, or an investigation by the Privacy Commissioner or Commonwealth Ombudsman;[111]

    · the Child Support (Assessment) Act 1989 (Cth) allows the communication of information about missing and deceased persons where necessary to assist a court, coronial inquiry, Royal Commission, or department or authority of the Commonwealth, a state or a territory;[112] and

    · the Australian Federal Police Act 1979 (Cth) allows the Police Commissioner to approve the disclosure of information that relates to the National Witness Protection Program if he or she is of the opinion that it is ‘in the interests of the due administration of justice to do so’.[113]

    Disclosure with consent

    3.84 Approximately 20% of secrecy provisions provide exceptions that permit the disclosure of information where the person or entity to whom the information relates has consented to the disclosure.[114] In addition, the Privacy Act contains exceptions to allow the use or disclosure of personal information with the person’s consent.[115]
    Disclosure of de-identified information

    3.85 Less than 5% of secrecy provisions provide exceptions permitting the disclosure of information if it does not identify the person or entity that is the subject of the information.[116] For example:

    · the APRA Act provides that it is not an offence if information is disclosed ‘in the form of a summary or collection of information that is prepared so that information relating to any particular person cannot be found out from it’;[117] and

    · the Epidemiological Studies (Confidentiality) Act 1981 (Cth) provides that the Act does not prohibit the publication of certain information from prescribed studies ‘but such conclusions, statistics or particulars shall not be published in a manner that enables the identification of an individual person’.[118]

    Disclosure to avert threats to life or health

    3.86 Some secrecy provisions contain exceptions permitting the disclosure of information in order to avert threats to a person’s life or health, for example:

    · the Customs Administration Act 1985 (Cth) allows the disclosure of information necessary to ‘avert or reduce’ a ‘serious and imminent threat to the health or life of a person’;[119]

    · the Inspector-General of Intelligence and Security Act 1986 (Cth) allows the disclosure of information ‘necessary for the purpose of preserving the well‑being or safety of another person’;[120]and

    · the Child Support (Assessment) Act allows the disclosure of information to prevent or lessen a ‘credible threat to the life, health or welfare of a person’.[121]

    Disclosure in the public interest

    3.87 A small number of secrecy provisions allow the disclosure of Commonwealth information in the public or national interest.

    3.88 For example, the Food Standards Australia New Zealand Act 1991 (Cth) allows the disclosure of certain information if the Minister certifies, by instrument, that it is necessary ‘in the public interest’.[122] Similar provisions are found in other legislation.[123]

    3.89 In addition, the Australian Security Intelligence Organisation Act 1979 (Cth) allows the disclosure of information where the information concerns matters outside Australia and the Director‑General ‘is satisfied that the national interest requires the communication’.[124]

    [1] Commonwealth v Fairfax (1980) 147 CLR 39, 50, citing Swinfen Eady LJ in Lord Ashburton v Pope (1913) 2 Ch 469, 475.

    [2] See, eg, Commonwealth v Fairfax (1980) 147 CLR 39, 50–51 in which Mason J concluded that the information had probably been leaked by a public servant in breach of his or her duty and contrary to the security classifications marked on some of the documents.

    [3] See, eg, Victoria v Nine Network (2007) 19 VR 476.

    [4] Commonwealth v Fairfax (1980) 147 CLR 39, 51.

    [5] Ibid.

    [6] G Munster and J Walsh, Documents on Australian Defence and Foreign Policy 1968–1975 (1980).

    [7] Commonwealth v Fairfax (1980) 147 CLR 39, 52.

    [8] Ibid, 52.

    [9] Ibid, 54. The High Court did, however, grant an injunction to restrain infringement of the Commonwealth’s copyright in documents that it had brought into existence.

    [10] Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, 191.

    [11] Victoria v Nine Network (2007) 19 VR 476, [84].

    [12] Ibid, [122]; [146]; [160].

    [27] Crimes Act 1914 (Cth) s 4G.

    [28] Ibid s 4H.

    [29] Australian Hearing Services Act 1991 (Cth) s 67(1).

    [30] Section 70 is discussed in detail later in this chapter.

    [31] Defence Force Discipline Act 1982 (Cth) s 58(1).

    [32] As this chapter provides an overview of all statutory secrecy provisions, the approximate values expressed here are different from figures noted in later chapters that focus on secrecy offences alone.

    [33] See, eg, Australian Crime Commission Act 2002 (Cth) s 51(2); Auditor-General Act 1997 (Cth) s 36(1); Australian Hearing Services Act 1991 (Cth) s 67(1); Data-matching Program (Assistance and Tax) Act 1990 (Cth) s 15(1); Australian Federal Police Act 1979 (Cth) s 60A(2); Australian Security Intelligence Organisation Act 1979 (Cth) ss 18(2), 81(1).

    [34] Public Service Act 1999 (Cth) s 13(1).

    [35] Ibid s 13(6).

    [36] See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 207(1); Australian Human Rights Commission Act 1986 (Cth) s 49(1); Australian Security Intelligence Organisation Act 1979 (Cth) s 18(2).

    [37] See, eg, Water Act 2007 (Cth) s 215 (in which confidential information is not expressly defined); Offshore Minerals Act 1994 (Cth) s 374 (‘confidential information’ is defined in a separate section, s 27).

    [38] See, eg, Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 604-15, 604-20; Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32; Therapeutic Goods Act 1989 (Cth) s 9C.

    [39] See, eg, Water Act 2007 (Cth); Australian Securities and Investments Commission Act 2001 (Cth) ss 213, 237; Pooled Development Funds Act 1992 (Cth) s 71(5)(a) and (aa); Bankruptcy Regulations 1996 (Cth) regs 8.05O, 8.32.

    [40] See, eg, Industry Research and Development Act 1986 (Cth) s 47(1).

    [41] Acts Interpretation Act 1901 (Cth) s 22.

    [42] See, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 66; Health Insurance Regulations 1975 (Cth) reg 23C(2)(a).

    [43] Acts Interpretation Act 1901 (Cth) s 22.

    [44] See, eg, Higher Education Support Act 2003 (Cth) ss 179-10, 179-35; Product Grants and Benefits Administration Act 2000 (Cth) s 47(2); Aged Care Act 1997 (Cth) s 86-2(1).

    [45] The Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) are discussed in Ch 16.

    [46] See, eg, Superannuation Contributions Tax (Assessment and Collection) Act 1997 (Cth) s 32(1), (2); Superannuation Guarantee (Administration) Act 1992 (Cth) s 45(1), (2).

    [47] See, eg, Australian Institute of Health and Welfare Act 1987 (Cth) s 29(1).

    [48] See, eg, Higher Education Funding Act 1988 (Cth) s 78(2); Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23E(2); Racial Discrimination Act 1975 (Cth) s 27F(1); Health Insurance Act 1973 (Cth) s 130(1).

    [49] Witness Protection Act 1994 (Cth) s 22.

    [50] Australian Security Intelligence Organisation Act 1979 (Cth) s 92.

    [51] Crimes Act 1914 (Cth) s 15XS.

    [52] See, eg, Agricultural and Veterinary Chemicals Code Act 1994 (Cth) s 162; Food Standards Australia New Zealand Act 1991 (Cth) s 114(1).

    [53] Wheat Export Marketing Act 2008 (Cth) s 73. See also Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 22A (disclosure may cause substantial damage to a person’s commercial or other interests); Pooled Development Funds Act 1992 (Cth) s 71(5)(b)(i) (disclosure may reasonably be expected to affect a person adversely in respect of the lawful business, commercial or financial affairs of the person); Trade Practices Act 1974 (Cth) s 95ZN (disclosure may damage the competitive position of the person).

    [54] Reserve Bank Act 1959 (Cth) s 79A. See also Australian Prudential Regulation Authority Act 1998 (Cth) s 56.

    [55] See, eg, Australian Crime Commission Act 2002 (Cth) s 29B (1), (3).

    [56] See, eg, Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS; Telecommunications (Interception and Access) Act 1979 (Cth) ss 63, 133.

    [57] See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 92; Australian Crime Commission Act 2002 (Cth) s 29B(1); Proceeds of Crime Act 2002 (Cth) ss 210, 217, 223; Mutual Assistance in Criminal Matters Act 1987 (Cth) s 43C; Crimes Act 1914 (Cth) s 3ZQT.

    [58] See, eg, Australian Security Intelligence Organisation Act 1979 (Cth) s 34ZS; Criminal Code (Cth) s 105.41.

    [59] Transport Safety Investigation Act 2003 (Cth) ss 3, 60. See also, Inspector of Transport Security Act 2006 (Cth) s 49; Space Activities Act 1998 (Cth) s 96; Civil Aviation Act 1988 (Cth) s 32AP.

    [60] See, eg, National Environment Protection Measures (Implementation) Act 1998 (Cth) s 36.

    [61] See, eg, Productivity Commission Act 1998 (Cth) s 53.

    [62] Civil Aviation Act 1988 (Cth) s 32AP; Inspector of Transport Security Act 2006 (Cth) s 63; Transport Safety Investigation Act 2003 (Cth) s 53.

    [63] Postal and Telecommunications Commissions (Transitional Provisions) Act 1975 (Cth) s 37.

    [64] See, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 189B, 251(3), 324R, 341R.

    [65] See, eg, Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 183-1; Copyright Act 1968 (Cth) s 203E(10).

    [66] See, eg, Family Law Act 1975 (Cth) ss 10D, 10H.

    [67] Patents Act 1990 (Cth) s 173.

    [68] Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) sch 5 cl 4.

    [69] See, eg, Defence Force Discipline Act 1982 (Cth) s 58(1); Defence Act 1903 (Cth) s 73A.

    [70] ‘Prohibited place’ is defined in Crimes Act 1914 (Cth) s 80 and includes defence property and installations.

    [71] Ibid s 79(2).

    [72] Criminal Code (Cth) s 91.1(3).

    [73] Ibid s 91.1(4).

    [74] See also Auditor-General Act 1997 (Cth) s 37; Patents Act 1990 (Cth) s 173; Privacy Act 1988 (Cth) s 70; Australian Human Rights Commission Act 1986 (Cth) s 24.

    [75] As defined in s 193S(1) of that Act.

    [76] See also Aboriginal and Torres Strait Islander Act 2005 (Cth) s 193S(3)(d).

    [77] See, eg, Income Tax Assessment Act 1936 (Cth) s 16.

    [78] Public Service Regulations 1999 (Cth) reg 2.1.

    [79] Public Service Act 1999 (Cth) s 7.

    [80] Australian Postal Corporation Act 1989 (Cth) ss 90H, 90LB apply to ‘employees of Australia Post’ by virtue of s 90G.

    [81] Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth) s 127; Sex Discrimination Act 1984 (Cth) s 112; Racial Discrimination Act 1975 (Cth) s 27F.

    [82] Ombudsman Act 1976 (Cth) s 35C.

    [83] Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), [7.11.2].

    [84] See, eg, Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32(1).

    [85] See, eg, Customs Administration Act 1985 (Cth) s 16.

    [86] Confidentiality clauses are included in contracts with service providers as a matter of course: Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), 53.

    [87] See, eg, Australian Securities and Investments Commission Act 2001 (Cth) s 127(1) which applies to the Australian Securities and Investments Commission; and Trade Practices Act 1974 (Cth) s 95ZP which applies to the Australian Competition and Consumer Commission.

    [88] See, eg, Australian Hearing Services Act 1991 (Cth) s 67(8); Taxation Administration Act 1953 (Cth) s 13J.

    [89] See, eg, Aged Care Act 1997 (Cth) s 62-1.

    [90] See, eg, Inspector of Transport Security Act 2006 (Cth) s 35(7); Epidemiological Studies (Confidentiality) Act 1981 (Cth) s 4.

    [91] See, eg, Social Security (Administration) Act 1999 (Cth) s 203; Health Insurance Act 1973 (Cth) ss 130(14), 130(21); Child Care Act 1972 (Cth) ss 12K, 12Q.

    [92] See also A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) s 163; Student Assistance Act 1973 (Cth) s 352; Child Care Act 1972 (Cth) s 12K; Defence Act 1903 (Cth) s 73A(2).

    [93] Crimes Act 1914 (Cth) s 79(5), (6).

    [94] See Criminal Code (Cth) ss 6.1, 9.2.

    [95] Taxation Administration Act 1953 (Cth) s 3C(2A).

    [96] See, eg, Disability Services Act 1986 (Cth) s 28(2A); Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23E(2); Racial Discrimination Act 1975 (Cth) s 27F(3A).

    [97] See eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65(4); Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) s 14(3A); Taxation Administration Act 1953 (Cth) s 3C(2A).

    [98] See, eg, Australian Human Rights Commission Act 1986 (Cth) s 49(3); Reserve Bank Act 1959 (Cth) s 79A(2).

    [99] See, eg, Disability Discrimination Act 1992 (Cth) s 127(3).

    [100] Superannuation Industry (Supervision) Act 1993 (Cth) s 252C(5)(b).

    [101] Customs Administration Act 1985 (Cth) s 16(3).

    [102] Health Insurance Act 1973 (Cth) s 130(3).

    [103] Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 129(1).

    [104] Australian Prudential Regulation Authority Act 1998 (Cth) s 56(5A), (5B), (6A).

    [105] Industry Research and Development Act 1986 (Cth) s 47(2).

    [106] Gene Technology Act 2000 (Cth) s 187(1)(d).

    [107] See, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65(4); Medical Indemnity Act 2002 (Cth) s 77(4).

    [108] See, eg, Surveillance Devices Act 2004 (Cth) s 45(5); Pooled Development Funds Act 1992 (Cth) s 71(2); Fringe Benefits Tax Assessment Act 1986 (Cth) s 5(5).

    [109] See, eg, Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32(2); Child Support (Assessment) Act 1989 (Cth) s 150(5); Australian Security Intelligence Organisation Act 1979 (Cth) s 81(2).

    [110] See, eg, Surveillance Devices Act 2004 (Cth) s 45(5); Australian Security Intelligence Organisation Act 1979 (Cth) s 18(3)(a).

    [111] Crimes Act 1914 (Cth) s 23YO(2).

    [112] Child Support (Assessment) Act 1989 (Cth) s 150(4D)–(4F).

    [113] Australian Federal Police Act 1979 (Cth) s 60A(2B).

    [114] See, eg, Gene Technology Act 2000 (Cth) s 187(1)(f); Reserve Bank Act 1959 (Cth) s 79A(3); National Health Act 1953 (Cth) s 135A(8).

    [115] Privacy Act 1988 (Cth) s 14, IPPs 10, 11.

    [116] The privacy implications of the use of de-identified information is discussed in Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC 108 (2008), [6.64]–[6.87].

    [117] Australian Prudential Regulation Authority Act 1998 (Cth) s 56(7).

    [118] Epidemiological Studies (Confidentiality) Act 1981 (Cth) s 11.

    [119] Customs Administration Act 1985 (Cth) s 16(3F).

    [120] Inspector-General of Intelligence and Security Act 1986 (Cth) s 34(1A).

    [121] Child Support (Assessment) Act 1989 (Cth) s 150(3)(e).

    [122] Food Standards Australia New Zealand Act 1991 (Cth) s 114(4).

    [123] See, eg, Medical Indemnity Act 2002 (Cth) s 77(3); Health Insurance Act 1973 (Cth) s 130(3); National Health Act 1953 (Cth) s 135A(3).

    [124] Australian Security Intelligence Organisation Act 1979 (Cth) s 18(3)(b).
    ‹ Duties of confidentiality and loyalty and fidelity
    General criminal offences ›
    Secrecy Laws and Open Government in Australia (ALRC Report 112)
    Table of Contents:

    Executive Summary
    List of Recommendations
    1. Introduction to the Inquiry
    2. Secrecy in the Context of Open Government
    3. Overview of Current Secrecy Laws
    Introduction
    Duties of confidentiality and loyalty and fidelity
    Specific statutory secrecy provisions
    General criminal offences
    4. Framework for Reform
    5. General Secrecy Offence: Harm to Public Interests
    6. General Secrecy Offence: Elements
    7. General Secrecy Offence: Exceptions and Penalties
    8. The Role of Specific Secrecy Offences
    9. Specific Secrecy Offences: Elements
    10. Authorised Disclosure Provisions
    11. Specific Secrecy Offences: Review and Guidance
    12. Administrative Obligations in the Australian Public Service
    13. Regulating Beyond the Australian Public Service
    14. Frameworks for Effective Information Handling
    15. A Culture of Effective Information Handling
    16. Interactions with Other Laws

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    3 weeks ago
  • Charles Ponzi created a new topic ' Lawyer X Scandal Mokbel' in the forum.
    Informer 3838: A web of deceit

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    In 2009, four Victoria Police officers would find themselves guarding their most valuable intelligence asset as she hid in the Hard Rock Hotel in Bali’s Kuta beach.

    That year the lawyer-turned-informer, code-named 3838, had been receiving a stream of anonymous text messages and phone calls promising reprisals if she didn’t “stop telling lies” and “stop talking”.

    Police wanted to protect the lawyer until she could appear as a key witness in the most significant police corruption case in the state’s history, the execution murders of another police informer, Terence Hodson, and his wife Christine.
    Executed: Terence Hodson and his wife, Christine.

    Executed: Terence Hodson and his wife, Christine.

    But some of the events on that sojourn fractured her confidence in police, a relationship that had already become strained when she was convinced to testify against the prime suspect, former drug squad detective Paul Dale.
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    One of the officers treated the protection duty like an end-of-season football trip, getting so drunk that she had to help him back to his hotel. Another was a fish out of water on his first overseas jaunt, his discomfort aggravated by a paranoia about germs.
    Kuta Beach in Bali, where police officers took Informer 3838.

    Kuta Beach in Bali, where police officers took Informer 3838.Credit:Alamy

    Meanwhile, back in Melbourne’s underworld, the case itself was being undermined.

    Gangland killer Carl Williams was the star witness, but the lawyer was the police’s ace up the sleeve. Her involvement was to be kept under wraps for as long as possible.

    A detective later told the court that three people in Barwon Prison maximum security already knew the lawyer was a witness in the upcoming committal hearing.

    “It’s fanciful to think the word hasn’t spread,” another lawyer said at the time.

    Then, in the wake of a breakdown in her relationship with police and their attempts to protect her identity, Informer 3838 did an extraordinary handbrake turn and sued them for failing in their duty to keep her safe.

    In her decade-long career as a barrister, Informer 3838 had represented a who’s who of Melbourne’s underworld. She had become a trusted adviser to drug traffickers, murderers and mafia figures.
    Former drug squad detective Paul Dale at Melbourne Magistrates Court in 2010 for proceedings over the murder of police informer Terence Hodson.

    Former drug squad detective Paul Dale at Melbourne Magistrates Court in 2010 for proceedings over the murder of police informer Terence Hodson.Credit:Craig Abraham

    When she reluctantly agreed to become a witness against Dale for the Hodson murders, both police and the lawyer believed the criminal fraternity would not care that she was co-operating to punish an allegedly bent cop.

    It was a fundamental miscalculation, one of a series that would unravel the arrangement.

    The scandal has taken almost a decade to play out, but it unfolded largely in secret, shrouded in suppression orders.

    For years, the bitter legal battle about her involvement had been concealed behind a series of cryptic initials: “AB, CD and EF”. So sensitive was the dispute, so intricate the web of suppression orders over the case, almost nothing beyond those letters could be reported.

    On Monday morning, the Supreme Court unwound almost all of that. In an email to Victoria’s journalists the bulk of the publication bans were lifted.

    It brought into the light hundreds of pages of secret court decisions about whether or not criminals could be told that their convictions may have been compromised. They were released along with a seething High Court judgement about the conduct of both Informer 3838 and Victoria Police.

    “[The lawyer’s] actions in purporting to act as counsel for the convicted persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court.

    “Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [the lawyer] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer.”

    It left Victorian Premier Daniel Andrews no choice but to call a royal commission into the police’s handling of their dynamite informer and the cases the lawyer had contaminated by turning double agent.
    Blood in the streets

    This tale of deception all began with the gangland war.

    In the early 2000s, the bodies were piling up in the battle to control Melbourne’s lucrative drug trade. There was a murder a month. Alphonse “The Black Prince” Gangitano had been killed; Carl Williams murdered Mark Moran; and Victor Peirce was gunned down in his car in Port Melbourne.
    Underworld killer Carl Williams.

    Underworld killer Carl Williams.

    But it was the execution of Jason Moran and Pasquale Barbaro in front of five children at an Auskick game in June 2003 that ramped up the pressure on police to stop the bloodshed.

    “It was a desperate and dangerous time,” Chief Commissioner Graham Ashton said this week, seeking to explain why the force had turned to such desperate measures as Informer 3838. When the information pot of gold came, police were willing to bend the law to scoop from it.

    She’s known by a few acronyms now - Witness F, Lawyer X, EF and Informer 3838. She also had a high profile in Melbourne's legal and underworld communities. Charismatic, brash and witty she loved a drink with cops and crims alike.

    “She wanted to be wanted,” one policeman said.

    By one reading, she was also trapped. She knew about crimes that had been committed, or were about to be committed, and said she feared she might be charged as an accessory.

    She remembers walking to court one day hoping a tram would hit her so she wouldn’t have to face the ordeals ahead of her.

    She claims she was stood-over by her most infamous client – drug lord Tony Mokbel – to ensure the guilty plea and silence of one of his underlings, who was arrested for running a pill press.

    The lawyer wanted to be rid of Mokbel, but by then she was in up to her neck.

    “She used to mix too much with the clients and wouldn’t listen, despite my warnings that she wasn’t smart enough, she was in too deep,” one lawyer said.

    “There’s no loyalty ... they will slice you up as soon as it suits them.”
    In deep

    Just how the lawyer became a police supergrass is so knotted in disputed accounts and misinformation that even Supreme Court judge Timothy Ginnane would find it impossible to untangle.

    What is known is around mid-2003 contact was established between a detective and the barrister that led to what she claims was the single biggest police breakthrough in the escalating gangland war.

    She says she was pivotal in turning a key player into an informer.

    “His actions,” she wrote of the criminal, “created a precedent for others to follow and was the crack in the dam wall of silence that lead (sic) to a flood. He laid the foundation for the prosecution of numerous murderers.”

    With her access, the lawyer quickly became Victoria Police's most valuable informer. The volume and quality of her information meant that in September 2005 she became a registered informant.

    Embracing her role, Informer 3838 even began telling on her clients. In one case, she represented a client the same day she contributed to his arrest by tipping off police about his drug lab.

    She also began fostering introductions between her clients and undercover police operatives, becoming an “agent provocateur”, as her behaviour has been described in a former client's pending appeal against a conviction.

    But there were still ground rules.

    Informer 3838’s co-operation had always been conditional on an agreement that she would never be publicly exposed, never called to testify.

    That changed when the police’s desperation to solve one of the state’s most infamous murders hit its peak.
    Murder, mayhem and corruption

    Terence Hodson and his wife Christine were executed in their Kew home in May 2004 after a leaked police file revealed that Terence, a veteran criminal, had become an informer.

    Police quickly zeroed-in on a suspect – drug squad detective Paul Dale – and an alleged motive – silencing Hodson before he could testify about Dale’s alleged involvement in the burglary of a drug house. That case had collapsed after the Hodsons’ murder.

    But proof was hard to find. It took three years for the first major breakthrough: notorious drug trafficker Carl Williams – who was already serving 21 years in jail when he was sentenced to at least another 35 for the murders of Mark Mallia, Jason Moran and Lewis Moran – began co-operating with police.
    Carl Williams sits behind bullet-proof glass at Melbourne Magistrates Court in 2007.

    Carl Williams sits behind bullet-proof glass at Melbourne Magistrates Court in 2007.Credit:Jason South

    The theory was Williams had acted as broker between Dale and the hitman, Rodney Collins.

    From April 2007, Williams provided a series of statements detailing the plot. They were rich with colourful details about a clandestine meeting with Dale in a swimming pool, where they could not be overheard.

    Yet Dale remained free because Williams was a “tainted witness” – several Supreme Court judges would later note – with a documented history of providing “inconsistent” and “highly unreliable” information.

    Enter Informant 3838, who investigators believed was uniquely positioned to get much-needed corroboration.
    Paul Dale

    Paul Dale

    In 2004, before the Hodson murders, Informant 3838 had acted as a go-between for Williams and Dale, passing on messages and giving Dale burner phones. Dale later testified that they'd also had a sexual relationship, which she denies.

    Ultimately she would wear a wire to a meeting with Dale in a South Yarra cafe to discuss the taskforce Petra investigation.

    On the covert recording, Dale told the lawyer that Williams’ statement to police was “very accurate”, containing information only the two of them could know.

    In February 2009, almost five years after the double murder, Dale was arrested and charged.

    In preparation for the prosecution, police deregistered the lawyer as Informer 3838 and began referring to her as “Witness F”. The intention was to keep secret her lengthy history as an informer.

    But as a witness her identity could not be kept secret for ever.

    “How could anyone trust her after that?” an underworld source says. “Everyone knew she had been wired. Everyone thought she was wired.”

    Even a prosecutor in the committal hearing predicted the outcome.

    “The criminal underworld may well look at her and say, ‘Hang on, I’ve dealt with her, my mate has dealt with her – what’s she going to say about us when push comes to shove?” the prosecutor said.

    By then, police were moving her from hotel to hotel – the Park Hyatt, The Langham, The Westin – there were clandestine meetings in empty floors of high-rises and police were paying for everything from flights to fuel to phone bills.

    They wanted her alive for Dale’s trial. Afterwards they planned to give her and her family new identities and relocate them overseas.

    Then, on April 19, 2010, Carl Williams was beaten to death in prison with the metal stem of bicycle seat wielded by Matthew Johnson, head of anti-informer gang Prisoners of War.
    Prison CCTV footage released after Matthew Johnson's court case shows the convicted killer (left) sneaking up behind Carl Williams (seated) with the stem of an exercise bike before launching his deadly attack.

    Prison CCTV footage released after Matthew Johnson's court case shows the convicted killer (left) sneaking up behind Carl Williams (seated) with the stem of an exercise bike before launching his deadly attack.

    The charges against Dale were dropped. But whispers continued to spread that the criminal lawyer was a “dog”.
    Blowing the lid

    Informer 3838 says her information was integral to the arrest and prosecution of at least 386 criminals. Among them were members of the Calabrian mafia-linked syndicate arrested over the world’s largest ecstasy bust in 2008.

    Her involvement had been sanctioned by the highest levels of law enforcement in Victoria, including then deputy police commissioner Simon Overland.

    Yet the profound conflict of interest at the heart of her co-operation – a barrister who betrayed her own clients – was a ticking time-bomb.

    In 2011, Graham Ashton, who knew about 3838 in his role at the Office of Police Integrity, became head of the crime department in Victoria Police. Ashton asked for an internal review and the response was unequivocal: “We have an issue.”

    A formal investigation, known as the Comrie Review, found the lawyer had potentially “disregarded legal professional privilege” and “potentially interfered with the right to a fair trial”. Some convictions of her clients may be “open to claims of being unsafe”.

    For the next two years, the police ran internal probes as potentially tainted trials and appeals continued to run in courts, the Office of Public Prosecutions none the wiser.

    Investigations based on her information also continued.

    Then, in April 2014, the Herald Sun published a story about “Lawyer X”, describing but not naming a prominent barrister who was recruited and registered as an informer.

    An Independent Broad-based Anti-corruption Commission investigation was instigated, then its findings suppressed. It is known that investigator Murray Kellam, QC, found the matter "had the potential to have adversely affected the administration of justice in Victoria", though he stopped short of making any criminal finding.

    His report is said to be the first time the OPP had an inkling that the cases it had been running could result in "unsafe" prosecutions and convictions.
    Friendly fire

    In February 2015, the OPP began its own review. The results prompted then director of public prosecutions John Champion to warn the attorney-general in a confidential report that possible “miscarriages of justice” had occurred.

    He was “firmly of the opinion” that those convicted should be informed.
    Former director of public prosecutions John Champion.

    Former director of public prosecutions John Champion.

    What followed is one of the strangest and most expensive legal battles between two government agencies in Australia’s history.

    Victoria Police launched legal action against the OPP in 2016 to stop them sending letters to former clients of Informer 3838. They argued the information would result in the murder of the lawyer, a fact that should outweigh other considerations.

    A succession of losses followed for Victoria Police. The Supreme Court, the Court of Appeal and finally the High Court rejected their argument. The message was clear: the justice system had been corrupted and accused people's right to due process and independent legal counsel had been compromised.

    Victoria Police had known all this eight years ago.

    A senior government lawyer's opinion from early 2010 was that protecting the identity of a confidential informant was a powerful reason for concealing their identity, but it wasn’t absolute. There would always be the view that nothing trumps the right to a fair trial.

    How Victoria Police could take such a dangerous path – and refuse to change direction when it had the chance – is yet to be answered.

    Was it a few bad apples? Incompetence? A command structure obsessed with scoring a conviction? Good intentions gone awry?

    “There has never been a more significant revelation than what came out of the High Court judgement. It has the potential to uncover misconduct on an incredible scale, travelling from the informer herself all the way to the highest offices of law enforcement,” said Ruth Parker, solicitor for one of the convicted men.

    Beginning early next year, the royal commission will start to unwind this 15-year-long scandal to determine just where it all went wrong, and why.

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    Informer 3838

    Tammy Mills
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    Tammy Mills is a Crime Reporter for The Age.
    Chris Vedelago
    Chris Vedelago

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    Chris Vedelago is an investigations reporter for The Age with a special interest in crime and justice.
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    *Legal Services Commissioner (Vic) v Stirling – Barrister’s practising certificate suspended for 3 years for tax offences stretching over 10 years [C12]
    You are here:

    HomeTax Month - April 2012

    March 1, 2017Tax Month - April 2012By John Morgan

    The Victorian Civil and Administrative Tribunal has handed down a 3-year suspension of a barrister’s practising certificate following a finding that he was guilty of professional misconduct within the meaning of s 4.4.3(1)(b) of the Legal Profession Act2004 (Vic) for engaging in conduct that justified a finding that he was not a fit and proper person to engage in legal practice.

    The barrister was charged with professional misconduct under the Act following:

    his conviction in 2004 for failing to lodge an income tax return for the financial year ended 30 June 2001;
    him becoming an insolvent under administration pursuant to an insolvency agreement under Pt X of the Bankruptcy Act 1966, namely:

    ▪ his failure to disclose on time income he earned in professional practice as a barrister for the financial years 1 July 1996 to 30 June 2004;

    ▪ his failure to make provision for and to pay on time income tax on income he earned in professional practice as a barrister for the financial years 1 July 1996 to 30 June 2005;

    ▪ his failure to make provision for and to pay provisional tax in respect of financial years 1 July 1998 to 30 June 2000; and

    ▪ his failure to disclose, to make provision for and to pay GST on payments he received from 1 July 2000 to 30 June 2005 in professional practice as a barrister;

    his failure to lodge BASs on time for the quarters 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007.

    The Tribunal concluded that “a reprimand and substantial suspension of the Respondent’s practising certificate” was warranted, together with an additional condition, as recommended, attaching to his practising certificate ie that, while he continues to hold a practising certificate, the barrister is to inform the Commissioner of Taxation in writing of any failure after 28 March 2012 to comply with his taxation obligations within 7 days of any such failure. The Tribunal set the period of suspension at 3 years.

    (Legal Services Commissioner v Stirling (Legal Practice) [2012] VCAT 347, Victorian Civil and Administrative Tribunal, Vice President Judge Jenkins, Members Mr P Shattock and Ms H Campbell, 28 March 2012.)

    [LTN 75, 20/4]
    [2012] VCAT 347 Scope Note – Matthew James Stirling

    Plea of guilty to charges of professional misconduct; and unsatisfactory professional conduct, Failure to lodge returns for income tax (for 8 years), BAS (for 5 years) or pay tax (for 9 years); No extenuating circumstances; Lavish lifestyle; Returns filed following action by DCT; Practitioner entered into two Personal Insolvency Agreements; prolonged failure to cooperate with investigation of LSC; election not to give evidence, continuing failure to file returns and pay current tax liability on time; some delay; substantial repayment of original tax debt; Good character references; Practitioner reprimanded; Practising certificate suspended for 3 years.

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    4 weeks ago
  • Charles Ponzi created a new topic ' Roger Stone and Steve Bannon Wikileaks Russians' in the forum.
    politics
    Bannon Is the High-Ranking Campaign Official in the Roger Stone Indictment, Source Says
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    26 January 2019, 01:15 GMT+11
    Steve Bannon speaks during a campaign rally in Fairhope, Alabama on Dec. 5, 2017. Photographer: Nicole Craine/Bloomberg
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    Former White House aide Steve Bannon is the “high-ranking campaign official” referenced in the discussion of October emails in the 24-page indictment released Friday by Special Counsel Robert Mueller, according to a person familiar with the matter.

    The indictment of Roger Stone, a longtime Republican strategist and sometime confidant of President Donald Trump, refers to hacked emails related to Hillary Clinton’s campaign released by an organization matching the description of WikiLeaks.

    Bannon was Trump’s campaign manager and served as White House chief strategist in during first seven months of the Trump administration.

    “The specific charges that have been brought against Mr. Stone have nothing to do with the president,” White House Press Secretary Sarah Sanders told reporters Friday.

    Stone was arrested in Florida earlier in the day.
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    Special Counsel Robert Mueller’s arrest of Roger Stone could carry serious implications for President Donald Trump with the prosecutor describing how his campaign pursued information about hacked emails concerning his opponent.

    The seven-count indictment lays out a series of contacts between Stone and senior campaign officials deep into 2016 concerning the release of hacked information about Hillary Clinton’s campaign by WikiLeaks, a group linked to the Russian government. In particular, it alleges that a senior campaign aide initiated those contacts.

    Roger Stone
    Photographer: Al Drago/Bloomberg

    After WikiLeaks released stolen Democratic National Committee emails on July 22, 2016, “a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1,” the indictment said. The description of “Organization 1” in the indictment matches WikiLeaks.

    Mueller’s indictment also describes how a “high-ranking Trump campaign official” was in touch with Stone in October 2016 ahead of the release of additional damaging information about Clinton’s campaign by WikiLeaks. An associate of that official texted Stone after the release to say, “Well done.” The high-ranking official was Stephen Bannon, who later served as Trump’s top strategist, according to a person familiar with the matter.

    Stone insisted that he’s innocent.

    “I will plead not guilty to these charges,” Stone said outside the federal courthouse in Fort Lauderdale, Florida. “I will defeat them in court. I believe this is a politically motivated investigation.”

    The president has tried in recent months to downplay his connections to Stone, who had a brief role as a top adviser in Trump’s presidential campaign until August 2015 but has been a Trump supporter and adviser for decades.

    “I will not testify against the president because I would have to bear false witness against him,” Stone added.
    Trump’s Tweet

    “Greatest Witch Hunt in the History of our Country!” Trump tweeted Friday in his first comment on Stone’s arrest. “NO COLLUSION! Border Coyotes, Drug Dealers and Human Traffickers are treated better.”

    White House Press Secretary Sarah Sanders told reporters that Stone’s alleged crimes have “nothing to do with the president.”

    But House Intelligence Chairman Adam Schiff, a California Democrat, said in a statement that his committee “will be eager to learn just who directed a senior campaign official to contact Stone about additional damaging information held by Wikileaks” just “days before Donald Trump called on Russia to ‘find the 30,000 emails that are missing’ from Hillary Clinton’s email server.”

    In 2017, Trump’s son, Donald Trump Jr., told the Senate Judiciary Committee that he didn’t recall having a conversation with Stone “basically past the first week or two of our campaign,” and that “I didn’t really deal with Roger too much.”

    Asked who in the campaign did, Trump Jr. replied, “I don’t know if anyone did.” He added, "I don’t know that he had an actual role in our campaign.”

    Trump lawyer Rudy Giuliani has said that Trump did have a few phone calls with Stone during the campaign based on the phone records he reviewed. Trump’s former campaign chairman Paul Manafort has also said he kept in communication with Stone during the campaign.

    Read more: The ins and outs of Trump-Russia probe

    Stone was arrested by FBI agents Friday on charges of lying to Congress, obstructing a probe and witness tampering.

    The 66-year-old Republican operative began working with Trump in 1980s. Along the way, he helped Trump explore earlier presidential bids, starting with the 1988 race. When Trump considered running ahead of the 2012 and 2016 elections, Stone was one of the first consultants he turned to.

    In December, Trump tweeted about Stone saying publicly he wasn’t planning to provide damaging information about the president: “‘I will never testify against Trump.’ This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about ‘President Trump.’ Nice to know that some people still have ‘guts!’”
    Manafort Ties

    Stone also has long-time ties to Manafort, who has already been convicted on multiple charges in Mueller’s investigation. They had been partners in a Republican lobbying firm formed in 1980, which came to include Lee Atwater as a senior partner of its political-functioning arm.

    Stone told Bloomberg News in December that he has “not been to the White House since Reagan was president.” However, it was his time inside the Trump campaign that Mueller and congressional investigators have focused on.

    Stone’s role as someone catching the interest of Russia probe investigators stems specifically from his publishing of cryptic tweets, including one Aug. 21, 2016 that it would soon be Hillary Clinton campaign manager John Podesta’s "time in the barrel.”

    Then, on Oct. 7, 2016, WikiLeaks began publishing thousands of emails stolen from Podesta’s email account. That fed questions about his Trump campaign contacts with WikiLeaks during the campaign and into possible coordination in disseminating the emails, which U.S. intelligence officials say were stolen by Russia.

    Stone has claimed to both the Senate Intelligence Committee and the House Intelligence Committee he had no direct contact with WikiLeaks, but only via an intermediary, which he later identified as a radio host, Randy Credico. He has also denied knowledge of or involvement in any Russian collusion, or other inappropriate act.

    Read more: Godfather II Scene Plays Cameo Role in Stone Indictment

    But early this month, Stone acknowledged to Bloomberg that the focus on him was intensifying, as Mueller and his team obtained his congressional testimony. “Clearly they have no evidence of Russian collusion or WikiLeaks collaboration and are now attempting hairsplitting and to play word games over material which does not in any way rise to the level of perjury, which as you know requires both intent and materiality,” he said.

    Trump had said he fired Stone from his presidential campaign. Stone said he quit, citing Trump clashes with the media, namely then-Fox News’ Megyn Kelly, which he said distracted from the candidate’s message. Stone has remained loyal, however. Just days later, he wrote an op-ed supportive of Trump, arguing Trump alone had the stature, experience and guts to take on the entrenched special interests and save America from further decline.

    Stone’s own notoriety led to a Netflix documentary in 2017 about him, “Get Me Roger Stone.” In it, he proclaims, “My name is Roger Stone, and I’m an agent provocateur.” He added that one of his rules is: “It is better to be infamous than never be famous at all.”

    In fact, Stone’s political consulting work has long been as colorfully self-promoting as it has been combative, often finding him accused of disinformation and dirty tricks, some of which he eagerly does not deny.

    He dropped out of college to volunteer on President Richard Nixon’s re-election campaign, and has always claimed to relish that involvement. An unapologetic admirer of Nixon, he’s made his mark in conservative politics with a reputation as not only a consultant who can play out of bounds, but also a slick self-promoter who craves the spotlight. He serves now even as a men’s fashion consultant for the conservative outlet Daily Caller.

    Over the years, Stone served as a northeast regional political director for Ronald Reagan’s 1980 presidential campaign, and also a political consultant or campaign manager to other Republicans, including Bob Dole, George H. W. Bush, George W. Bush, Jack Kemp, Prescott Bush and the former New Jersey Governor Thomas Kean.

    — With assistance by Chris Strohm

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