- Each search warrant identifies the substance of the offences against s 92.3(1) of the Criminal Code to which it relates in the following terms:
"Between about 1 July 2019 and 25 June 2020, John Shi Sheng ZHANG and others did, contrary to section 92.3(1) of the Criminal Code (Cth), intentionally engage in conduct, namely:
(i) While acting on behalf of Chinese State and Party apparatus engaged, through a private social media chat group and in other fora, with Shaoquett MOSELMANE, an elected Australian official, to advance the interests and policy goals of a foreign principal, being the Government of the People's Republic of China (PRC), in Australia by providing support and encouragement to MOSELMANE for the advocacy of Chinese State interests, and
(ii) In doing so was reckless that the conduct would influence the political process of an Australian State or Commonwealth or influence the exercise in Australia of an Australian democratic or political right or duty, in that the conduct would influence the NSW branch of the Australian Labor Party's policy positions on the PRC and the views of members of the NSW electorate in regard to the PRC; and
(iii) A part of the conduct was covert, in that it involved communications over a private Social Media Chat Group."
- Mr Zhang's argument that each warrant fails to comply with s 3E(5)(a) of theCrimes Act in that it insufficiently identifies the substance of the offences against s 92.3(1) is confined to an argument that each warrant is "unclear" as to the identity of the foreign principal. The argument is untenable. Each warrant in terms identifies the foreign principal as the Government of the PRC, which is a "foreign government principal" within the definition in s 90.3(a).
- Notwithstanding his initial choice to challenge the validity of the whole of s 92.3(1) of the Criminal Code, Mr Zhang developed his argument that each warrant failed to authorise search and seizure of "evidential material" as defined in s 3C(1) of the Crimes Act in relation to offences against s 92.3(1) on an acceptance that the various sub-paragraphs of s 92.3(1)(b), (c) and (d) would be capable of severance under s 15A of the Acts Interpretation Act 1901(Cth) in the event of invalidity. Focusing on the substance of the offences against s 92.3(1) identified in the warrants, his challenge was refined in the course of oral argument to a challenge to s 92.3(1)(a) ("the person engages in conduct") read with the first part of s 92.3(1)(b)(i) ("the conduct is engaged in on behalf of ... a foreign principal"), s 92.3(1)(c)(i) and (ii) ("the person is reckless as to whether the conduct will ... influence a political or governmental process of the Commonwealth or a State or Territory ... or ... influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty") and the first part of s 92.3(1)(d)(i) ("any part of the conduct ... is covert"). That permutation of s 92.3(1), he argued, infringes the implied freedom of political communication.
- Mr Zhang's argument that the permutation of s 92.3(1) infringes the implied freedom of political communication was ultimately explained in the course of its oral presentation to depend on a wide reading of the word "covert" in s 92.3(1)(d)(i): equating "covert" with "private" or "not overt". What became apparent was that he did not contend that on all available constructions of the word would the permutation offend the implied freedom of political communication. That is to say, he did not assert that the word could not be read down in accordance with the principle of construction referred to inResidual Assco Group Ltd v Spalvinsto ensure validity if the wide reading for which he contended did lead to invalidity.
11th Circuit En Banc Holds that a Juror's Listening to God Does Not Alone Warranted Removal of the Juror
I previously blogged on the 11th Circuit’s panel opinion United States v. Brown, 947 F.3d 655 (11th Cir.), vacated, reh’g en banc granted, 976 F.3d 1233 (11th Cir. 2020), here. See Eleventh Circuit Affirms Conviction of Another Congressman (Federal Tax Crimes Blog 1/14/20; 1/16/20), here. In relevant part, in the case with some tax counts, the panel opinion upheld the trial judge’s removal of a juror after the jury started deliberations because the juror expressed that
"A Higher Being told me Corrine Brown was Not Guilty on all charges". He later went on to say he "trusted the Holy Ghost".
Court Authorizes Service of John Do Summons to Payward Ventures d/b/a Kraken, a Cryptocurrencies Service Provider
DOJ Tax has issued this press release: Court Authorizes Service of John Doe Summons Seeking Identities of U.S. Taxpayers Who Have Used Cryptocurrency (5/5/21), here. The key parts of the press release are:
A federal court in the Northern District of California entered an order today authorizing the IRS to serve a John Doe summons on Payward Ventures Inc., and Subsidiaries d/b/a Kraken (Kraken) seeking information about U.S. taxpayers who conducted at least the equivalent of $20,000 in transactions in cryptocurrency during the years 2016 to 2020. The IRS is seeking the records of Americans who engaged in business with or through Kraken, a digital currency exchanger headquartered in San Francisco, California.
Man hangs on for dear life as high winds shatter glass bridge 300 feet in the air The Hill. I’ve always hated these things, because to me they symbolize and normalize precarity as thrilling yet safe (so it’s no coincidence they’ve emerged now in “moderately prosperous” China as a domestic tourist thrill).
There it is, your “safety net.”