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The Full Bench Edition Two 2018 Power to the People Editors Tom Brennan, Publications Director Liam Fairgrieve Matt Robson Quyen Nguyen David Guo Tamim Rahimi Aryan Golanjan Designers Nick Leong Issy Quigley Theadora Kable © 2018 UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers. Disclaimer All expressions of opinion published in The Full Bench are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. With special thanks to Katya Shliapnikoff, President of the UTS LSS, and Margaret Cai, Vice President (Education), for their help throughout the publications process. Print Portal, Factory | Unit 4, 102-112 Edinburgh Rd, Marrickville, NSW 2204. www.printportal.com.au The Full Bench (TFB) is published in Sydney annually by the UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CB05A.01.08, UTS Haymarket Campus Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

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Acknowledgment of People and Country The Full Bench and UTS acknowledge the Gadigal and Guring-gai people of the Eora Nation upon whose ancestral lands our university now stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places. Images and Illustrations Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

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Issue 02

Thomas Brennan

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Editorial

Liam Fairgrieve Matt Robson Quyen Nguyen David Guo Tamim Rahimi Aryan Golanjan

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Editor’s Introductions

Katya Shliapnikoff Margaret Cai

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President’s and Vice President’s Welcome

MEDIA AND TECHNOLOGY POWER Jazz Osvald

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Stable Governance Through Stablecoins

Sheenae Le Cornu

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The Growing Risk of Scam Contracts in the Gig Economy

April Reid

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The Network Dilemma

Liam Fairgrieve

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Media Mergers

Matthew Keevers

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Notifiable Data Breaches Australia’s New Privacy Law Scheme

POLITICAL AND LEGAL POWER

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Raising the Stakes Australia’s Class Actions Regime

Michael Tangonan

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Whistleblowers, Espionage, and Timor-Leste Exterminating a Bug and how to Brush it under the Rug

Margaret Cai

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The Lion, the Witches, and the Commission

Kimberley Ching

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A Redistribution of Power The Introduction of Modern Slavery Legislation in Australia

James Downie

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Law, Power, and People’s Right to Protest

Basil Naimet

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AHRC Interview

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TOM BRENNAN Publications Director On behalf of the UTS Law Students’ Society (LSS) and the Publications (Education) Portfolio, we’d like to wish you a warm welcome to the second edition 2018 edition of The Full Bench! From reaching the halfway point of a tumultuous Trump Presidency in America to the Hollywood #metoo movement and the Uluru ‘Statement from the Heart’ pledge of Indigenous Elders last year, it’s been a hectic couple of years for people across the planet. When times of chaos arise, it usually falls on global movements which seek to challenge and upend systems which perpetuate injustice to ensure that a fair and just society is maintained or created. One of the conduits through which these movements achieve creating a fairer society is by identifying the powerful individuals or bodies who perpetuate injustice and, in turn, devising new systems and checks to keep these entities accountable. It is the hope of this Edition that we pique your interest in movements, individuals, or events that provide ‘Power to the People’. For law students, such considerations are especially valuable in order to appreciate the valuable role of (or, in some cases, need of) law in protecting the most vulnerable and providing them with a voice. In our first section, ‘Media and Technology Power’, we take a look at the opportunities for law to hold the powerful to account in the field of media and emerging technologies. Next, in our second section, ‘Political and Legal Power’, we examine how courts and

legislators have either failed or succeeded in providing a voice for the vulnerable in the judicial and legal worlds respectively. A big ‘thank you’ to our contributors for your time and patience in helping contribute your fantastic writing skills to this publication! We hope that this opportunity has allowed you, and those of you reading this publication, to learn more the dynamics of power in law not only in Australia, but across the world. Moreover, we hope that you come away from this issue with a heightened understanding of how these structures can be changed to help the disadvantaged. We would also like to thank our designers, Nick Leong and Issy Quigley, for their amazing designs and peerless co-operation with our team! It would be hard to conceive of ‘Fear Itself’ being as special as it is without them. Lastly, if you’re interested in contributing to The Full Bench but missed out; never fear! Our new website will be accepting rolling submissions throughout the year. If you’re interested, send an email to the address provided below: publications@utslss.com Otherwise, remember to catch up with us on facebook and our website using the following links respectively: https://www.facebook.com/UtsTheFullBench2017/ https://medium.com/thefullbench

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LIAM FAIRGRIEVE I was contemplating what to write for my editorial in this semester’s edition on The Full Bench about law and power when a power struggle within the very place where our nation’s laws are made erupted from nowhere. What followed over the next four days was the most chaotic leadership change in the post-Howard era (and it’s a competitive field). The leader of this charge was Home Affairs Minister Peter Dutton. The first thing to note here is that this spill brewed around a familiar thorn in Malcolm Turnbull’s side: energy policy. Peter Dutton comes from a Liberal faction which views a shift towards renewables with suspicion, a policy which would turn the party to electoral poison the minute that there was even a hint of increased power prices. This is understandable, with power policy playing a pivotal role in this year’s South Australian state election. But did it justify the fourth party-room ousting of a sitting Prime Minister since 2010? The only plausible alternative government, the ALP, is campaigning on higher renewables targets than the Coalition has ever had; this could have allowed the Coalition some scope to pursue renewables policy while still maintaining the lower power prices high ground. On top of that, Malcolm Turnbull consistently polled as not only the preferred Liberal leader, but as the country’s preferred Prime Minister. The people who the Coalition need to win to be returned to power next year clearly lie towards the centre of the political spectrum, while the votes which Mr Dutton was targeting overwhelmingly flow back to the Coalition via the preference system.

Yet 34 Liberals backed Mr Dutton in his quest for the Prime Ministership when Mr Turnbull called a snap spill. The result was catastrophic for Malcolm Turnbull, effectively guaranteeing a second spill by the end of the week. The balance of power within Australia’s governing party seemed to be drifting inexorably towards Mr Dutton and his supporters. As we now know, Mr Dutton’s numbers men got their sums wrong. By the Thursday of that wild week, most Liberals recognised the untenability of Mr Turnbull’s leadership, but too many saw the hard-right Mr Dutton as an unelectable alternative. Scott Morrison, loyal to Malcolm Turnbull until the Thursday, was able to head off Mr Dutton in the eventual spill by 45 votes to 40. The other thing to note here is that Peter Dutton holds his Queensland seat of Dickson on a 1.6% margin. With activist groups like GetUp! pouring resources into campaigning against Mr Dutton, and opinion polls consistently forecasting nationwide swings against the Coalition of upwards of 3%, Mr Dutton’s return at next year’s federal election is far from a certainty. Frankly, I think that it is reasonable to suggest that Mr Dutton was motivated by little more than a desire to be recorded in history as a Prime Minister of Australia, mindful that next year could bring a premature truncation to his political career. The explosive events in Canberra in lateAugust were a brazen power grab from a man who had just a bit less of it than he’d thought. Enjoy reading this semester’s edition of The Full Bench.

QUYEN NGUYEN Power. The first thing that comes to mind is Foucault. That strange panopticon diagram to explain power relations. That true power was about practicing self-policing, than the police policing you. You remember it, but don’t really remember it as a Communication student. Or maybe that book titled 48 Laws of Power by Robert Greene that’s still collecting dust on my shelf. Luckily for you, we’re talking about a very specific power in our final edition of The Full Bench. We’re talking about collective power to effect change. Much like my favourite heroes in X-Men I strongly believe in that cheesy cliche, ‘divided we fall, united we stand’. While you may be quick to brush off the

impact of collective bargaining power, our authors have have the dug the dirt to keep our hands clean. Ranging from legislative changes to espionage, we hope this read sheds some light on your own blind spots. As aspiring lawyers, we should always keep on our toes with any changes in the legal landscape. So don’t forget your tea or coffee as you digest our final read.

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MATT ROBSON ‘Say you want a revolution, we better get on right away.’ A future with no consideration given to the environment, shameful levels of income inequality and the emergence of ‘conventional’ racism, sexism and homophobia has become the Australian reality. There is widespread sentiment that these cracks in our society must be addressed – soon. Recently, meaningful policy solutions to improve aspects of our society have given way to dividing and pernicious announcements, intended to distract the people. We are clearly angry. Yet we only seem to vent our anger to our close friends and family, rather than demand that those with power be held accountable for their actions. Political apathy is dangerous in the current state of the world. Despite Australia’s track record of intervention and bipartisan support for Asian engagement, the country remains unable to lend support to the Rohingyas suffering from ‘ethnic cleansing’ in Myanmar. People seeking asylum, who are left unprotected in our offshore detention centres, are driven to the brink of committing suicide – yet no one wants to do anything about it. The Coalition’s former tax policy incorporated tax breaks for the banking industry, and despite recent Royal Commission findings having revealed the widespread unconscionable

and unprincipled behaviours of the industry, many Australians remain unmoved by the policy. If politics was truly intended to be a sublime contest for values, our parliamentary candidates should have been impelled to take a stand on each of these issues by a discontented and indignant public. They weren’t. Rather, frustrated voters will voice their protest at the ballot box. Many fall into the trap of the heinous racism exhibited by One Nation. At the upcoming election, many will also support the ‘larrikin,’ ‘Tim Tam slamming’ Clive Palmer, ignoring the reality that he is currently facing criminal charges in the Queensland Supreme Court. Other Australians who have lost faith in our democracy will consider voting a waste of time and instead draw certain symbols on the ballot paper. Rather than take part in a ‘dissolving democracy,’ they embrace political apathy. This edition of The Full Bench, ‘Power to the People,’ intends to not only challenge the relationship of power and the law, but to demonstrate the abrading effects of political apathy on our society. We hope you enjoy reading this edition and gain new insights into the proximate relationship of the law and power. But instead of just saying we want a revolution, it would be best to get on with it right away.

DAVID GUO What a week that was. A week where we started with Prime Minister Turnbull and ended with Prime Minister Scott Morrison who was our 6th Prime Minister in 8 years. Yikes. It was truly a week to remember as a highly controversial figure in the form of Home Affairs Minister Peter Dutton was only a few votes away from being Prime Minister whilst also being almost ineligible to be a Member of Parliament due to falling afoul of S44 (V) of the Constitution due to his very fancy family trust. It was a week where our government sort of collapsed as ministers had more important backstabbing to get done. As we go through Prime Ministers faster than iPhones, it may seem like the voice of the people to hold the powerful accountable is rapidly being

drowned out by a cacophony of other voices. But that is something that this latest issue makes clear is absolutely not the case. This issue of the Full Bench is entitled ‘Power to People’ as we go through a wide range of issues from social media abuse to privacy rights and discuss new legislative responses at Commonwealth and State level which work to hold government departments as well as companies accountable in an ever-changing world. I hope you enjoy this issue and the hard work put in by our wonderful student contributors. Now, if you would excuse me, I have just become the 31st Prime Minister of Australia.

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TAMIM RAHIMI We are living in a time where our trust of people in power is at an all-time low. To be frank, there is no shortage of reasons for why this is the case. The evidence is, indeed, damning. From Royal Commissions, to leadership spills, to ‘fire and fury’, our institutions and elected representatives continue to push against the legal and constitutional boundaries. If I could highlight a key message of this edition, it is the concept of critique. In an increasingly polarising political landscape, the ability to critique, with developed insight and reasoned argument is a scarcity. However, it is reasoned thoughts and arguments that is exactly the best way to combat these issues. We should be grateful then, that the court of public opinion is a forum where all are able to

contribute, rather than a particular political or social class. A court, I dare say, more powerful than the ones our judges operate out of. As history has continued to teach us, it is the individuals brave enough to critique that spark conversations. It is conversations that lead to changes of perspectives in others. If enough perspectives are changed, then power balances can be shifted. I therefore, congratulate our contributors for their critiques – and encourage you to follow in their stead. Take part in important conversations, take an interest in the issues that affect you and be part of the process that shifts grave imbalances of power. But before you do, enjoy this edition of the Full Bench: Power to the People.

ARYAN GOLANJAN In the months in the lead up to the publication of this edition of The Full Bench, our nation’s leadership has been in turmoil. The high levels of political distrust and a barely-concealed anger towards our political and economic elite is no surprise considering the increasing prevalence of issues of inequality, sexism, racism, and homophobia. It is little wonder that in an attempt to hold power to account, dissatisfied constituents vote for candidates on the fringes of society, deifying eccentric (and sometimes dangerous) individuals who ‘speak their mind’. Yet these candidates are unlikely to challenge our political power-players, instead neatly slotting into the Canberra circuit. I am angry too. Children languish in offshore detention centres, suffering from severe and rare trauma-related mental health issues. Those suffering mental health issues in Australia fare only slightly better, with access to mental healthcare restricted to 10 Medicare subsidised sessions per year, and bulk-billing mental health professionals few and far between. The material conditions

that contribute to such issues aren’t getting any better, either. The most recent Royal Commission revealed the banking elite’s exploitation of regular, low-income, and vulnerable individuals, and it is likely the upcoming Royal Commission into aged care will make similar shock headlines. Jobseekers are forced to live on as little as $40 a day after housing costs yet are denigrated as ‘dole bludgers’. Our Prime Minister believes that the religious schools he sends his children to should be able to ‘hire and fire’ people at will, with the obvious implication being his belief in legalised discrimination. I am angry too. It is for precisely these reasons that we must hold power to account. This edition of The Full Bench aims to do precisely that, exploring everything from the gig economy to the right to protest. The contributions made by our writers are insightful critiques of the centralisation of power within our legal and political system. If only mainstream media would follow our lead.

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KATYA SHLIAPNIKOFF President

MARGARET CAI Vice President (Education)

Welcome to the second edition of The Full Bench for 2018, the academic journal proudly brought to you by the University of Technology Sydney Law Students’ Society (UTS LSS). We live in a dynamic society that is constantly faced with disruption and change. Our political and legal climate is continuously responding to new issues that arise and adapting to changes in society’s morals and values. As new social issues arise, legislation and policy is developed that further influences the way that society is governed. As these frameworks are continually developed by governments, it brings into question whether we as the people still have control and power over the way we make decisions and the ways we are governed. Our second edition The Full Bench ‘Power to the People’ is filled with pages of writing by the law students of UTS regarding a wide range of issues about this topic. Jazz Osvald delves into the crypto world and the newly developed stablecoins in his article “Stable Governance Through Stablecoins” whilst Kimberly Ching delves into the impact of the introduction of the new modern slavery legislation in Australia. The journal also includes an insightful piece by Sarah Avery regarding class actions, a piece by Michael Tangonan discussing whistleblowers in Timor-Leste and many more. I want to congratulate Tom Brennan on another wonderful edition of The Full Bench. It is his organisation and hard work as our Publications Director that brings this wonderful journal to life. I also want to make mention of Margaret Cai as our Vice President (Education) and thank her for her efforts in overseeing this wonderful edition. A big thank you also goes out to the Publications Committee and the lovely designers for their hard work in pulling this together. I hope you all enjoy perusing through the following pages of The Full Bench!

Welcome to our second edition of The Full Bench. Continuing from the ideas of security and liberty explored in our first edition, ‘Fear Itself’, this issue helps us consider the tangible implications of decisions made in the context of our political and legal climate. This issue is titled ‘Power to the People’ to both foreground the effect of new policy, legislation and disruptions, and to analyse our response as a society to these changes. The articles in this issue seem to be guided by one overarching question – who has power in the eyes of the law? It’s a question underpinned by ideas of empowerment and morality as well as an exercise in interpretation of history and precedent. Because of this, we are more concerned with the ‘grey areas’ of the legal landscape – the way we negotiate and justify our decisions and actions - than the law as black and white. This edition intends to challenge you. Some articles are high-level examinations of contemporary affairs, while others offer an insight into intricate areas most of us may overlook in our day-to-day lives. At the end of it, you may agree or disagree with them, or perhaps even conclude that the title ‘Power to the People’ is nothing more than irony. I therefore encourage you to take a moment and read the articles carefully. They are ultimately as current as they are thought-provoking. Many thanks to Tom Brennan, the UTS LSS Publications Director, and the Publications Subcommittee he leads with conviction. They have continued to do a wonderful job to showcase the diverse and critical thinking present in our Law School. On behalf of the UTS Law Students’ Society, I would like to extend thanks and best regards to all the contributors and sponsors who have invested in this final product. I hope you enjoy this edition of The Full Bench.

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Stable Governance Through Stablecoins Jazz Osvald

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ver the past 12 months, the terms ‘crypto-currency’ and ‘blockchain’ have become omnipresent. There is immense interest in the power of distributed ledger systems not only as a means to disrupt centralised financial institutions, but also as a means to revolutionise government processes. One such area with immense potential for reform is how political donations are managed. This article examines the potential impact of blockchain on how political donations are declared and suggests a way to streamline and improve the transparency of the political donation process, thereby keeping those in power in check. Australian politicians heavily rely on contributions.1 These contributions can potentially influence the decisions of politicians and have the potential to come dangerously close crossing the line of bare bribery. As it currently stands, NSW political donations must be declared by both those who make donations, and those who receive them,2 and there are various complex donation rules thresholds that must be complied with. 3 The rules that apply to Federal elections are similarly as complicated.4 The complexity of these rules, along with the sheer amount of donations that a politician may get can multiply the risk of human error significantly, causing an individual to declare a donation late, or not at all. The latter was certainly the case for former New South Wales Premier, Barry O’Farrell, who was brought before the Independent Commission Against Corruption (ICAC)

in 2014 for failing to declare a donation in the form of a forgotten $3000 bottle of wine. 5 This failure to disclose shows that there are deep-seated problems with the transparency, reliability and accountability with donation declaration. The adoption of blockchain to accurately track donations is one solution that could streamline the donation declaration process and improve its reliability and transparency. Creating a dedicated blockchain to track donations would ensure that they would be declared on a public ledger as soon as they were made, eliminating human error. To make the value of blockchain’s distributed ledger technology clear in this context, I will briefly explain what the term blockchain means, and how adoption of a distributed ledger system may solve the problem of misrepresentation of political donations. What is blockchain? To put it simply, a blockchain is a way to record transactions safely, quickly and securely. Transactions are stored in blocks which are all linked together; hence ‘blockchain’. These transactions are written to a series of distributed ledgers using the consensus of the network’s users. Consensus simply means that the majority of users must agree that a transaction is valid. Since users contribute to verifying transactions, a central authority like a bank is not needed. There are two main methods for achieving consensus, Proof-of-Work and Proof-of-Stake.6

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Proof of Work Imagine that you have a large pot, and 10 individProof of Work (POW) is a method employed by uals (who are called ‘forgers’, instead of ‘miners’) blockchains like Bitcoin to create blocks.7 each put 100 coins into the pot. The system would It works like this: reach into the pot and randomly select a coin, whoever owned this coin would be selected to process the next block. This forger would then be 1.Transactions made on the network are rewarded by receiving a transaction fee. The largsent its ‘miners’ where they compete to create er a forger’s stake, the more likely it is that they the next block;8 will be selected. 2. In doing so, miners dedicate their comThe benefit of this system is that it is far less puting power to solve complex cryptographic energy intensive, and it is arguably harder to equations to find a ‘hash’; this is what is known perform a 51% attack. For example, in a POW as a proof-of-work puzzle, or a hash puzzle;9 system, an individual may be able to gain 51% of the 3.The first to solve the equation ‘mines’ the hashing power by purchasing computing power for next block, and is entitled to generate and $10 million. However, in order to gain 51% of the transfer an amount of the cryptocurrency to staking power in a POS system, they would need itself as a reward;10 to purchase 51% of the coins through the market, 4.The block then ’points’ to the previous which may cause price inflation. An attack against block, linking them together in a ‘chain’.11 the system then renders the attacker’s own holdings less valuable. Additionally, POS requires This method of block creation means if an attacker the forger to have a stake of the coin they are were to attempt to change an earlier transaction forging; POW does not. This incentivises forgers to in a previous block it would be easily detected by remain honest, as they may lose their stake if they the users and rejected unless the attacker gained act nefariously. An obvious downside to this model 51% of the network’s computing power and man- is that the wealthiest participants are given a clear aged to recalculate each subsequent block.12 These advantage; however, this is not relevant if applied attacks, known as 51% attacks, are difficult to un- to the system that is proposed below. dertake due to the amount of sheer power needed to recalculate blocks and the prohibitively high How can Blockchain streamline political cost of sophisticated mining computers.13 donations? When applying this technology to political Proof of Stake donations, it is clear that blockchain’s ability to Proof of Stake (POS) is another method that is securely track transactions in an immutable manused by blockchains to create blocks, but a key ner is valuable. Several factors have to be considdifference is that instead of solving equations, us- ered when utilising a blockchain for governmental ers are selected at random depending on their use. Namely, security of the data must be ensured, holdings within the system. as well as transparency. One major flaw with

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largely decentralised and public networks is that a government body would have difficult controlling it; and individuals seeking to remedy incorrect personal information (as is their right under the Privacy Act), would be unable to change previous records. This is a problem that has been addressed by private and permissioned blockchains such as IBM’s Hyperledger Fabric,14 or R3’s Corda.15 Bitcoin is a public and ‘permissionless’ blockchain, meaning that anyone is allowed to transmit to the network. While this allows for greater decentralization and transparency, the permissionless environment poses an issue with privacy and confidentiality, as well as a lack of control by users. Additionally, permissionless blockchains typically have pseudonymous or anonymous users, which may be difficult to identify. Conversely, in a permissioned blockchain, the participants that reach consensus and verify transactions are carefully selected and transacting parties’ identities are generally easily attainable; this would be vital in a system that seeks to track political donations. So how does it work? In addition to maintaining the blockchain, the network’s validators would also be responsible for the associated bank accounts. When a donation is made to a politician or party, the donation must be paid through this bank account. The transaction is then recorded to a permissioned blockchain, which allows for each donation to be tracked and published as soon as it is made.

A permissioned blockchain could be more conducive to government use as it would allow for an adequate level of control to allow for things such as transaction reversal. It would also allow for only trusted parties to act as nodes to reach consensus and make identifying transacting parties easier. It may seem counter-productive to suggest that a blockchain be used to solve this problem while insisting on a more centralised model. However, it must be noted that in order for adoption to occur a sensible approach must be taken which satisfies any concerns that government bodies may have. In order to maintain public confidence in the security and transparency of the data, the trusted parties that would be verifying the chain and reaching consensus could be independent bodies, such as the Australian Electoral Commission. Making the ledger publicly available as to allow for public vetting of donations would also be highly beneficial as it would ensure that if for any reason, the trusted parties chose to form a cartel and change blocks within the blockchain, it would be easily identifiable by the public. To further increase public confidence in the system, a voting system could be introduced that would allow the public to vote for which bodies they would like to oversee the blockchain.16 The blockchain would likely benefit from using a POS model, rather than POW. While POW works well in a decentralised environment, in a centralised environment it would be easier for one of the nodes to gain 51% of the hashing power. Providing nodes with a predetermined stake of coins would mean that it would be more difficult for nodes to attack the network.

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Conclusion Dodgy political donations will always be a concern in the political sphere, and the introduction of a system such as the one proposed could do nothing to prevent under the table bribes. However, blockchain could prove to be invaluable in streamlining the current political donation system and providing an unprecedented level of transparency to government cashflow, keeping those in power in check. While mainstream implementation of blockchain is far from here, it certainly is exciting to think about all the changes that it can bring.

[1] https://theconversation.com/no-bribes-please-were-corrupt-australians-59657 [2] https://www.elections.nsw.gov.au/__data/assets/pdf_ file/0009/129735/FD_00-1832_Fact_Sheet_Political_Donations_V1F-AC.pdf [3] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/ Quick_Guides/ElectionFundingStates [4] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/ Quick_Guides/ElectionFundingStates [5] http://www.abc.net.au/news/2014-04-16/nsw-premier-barry-ofarrell-to-resign-over-icac-grange-wine/5393478 [6] There are other methods, but these two are the most common. [7] Arvind Narayanan et al, Bitcoin and Cryptocurrency Technologies: A Comprehensive Introduction (Princeton University Press, 2016) 104-110. [8] Ibid. [9] Ibid. [10] Ibid; Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, https://bitcoin.org/bitcoin.pdf page 3, 4. [11] Arvind Narayanan, above n 10. [12] https://bitcoin.org/bitcoin.pdf page 3 [13] https://bitcoin.org/bitcoin.pdf pages 6-7 [14] https://www.ibm.com/blockchain/hyperledger [15] https://www.r3.com/corda-platform/ [16] This is similar to the model used by cryptocurrency, EOS, called Distributed Proof of Stake.

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Sheenae Le Cornu

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he Fair Work Ombudsman’s (‘FWO’) legal proceedings against food delivery company Foodora in the Federal Court of Victoria once again raises concerns over the inadequacies of both statutory and common law in protecting ‘independent contractors’. Despite the findings and recommendations of the Senate inquiry into corporate avoidance of the Fair Work Act 2009 (Cth) (‘the Act’) by the Education and Employment References Committee (‘EERC’) in 2017, and the Productivity Commission’s (‘PC’) inquiry into Australia’s workplace relations framework in 2015, the definition of ‘employee’ has not been broadened to encompass independent contractors. Under current legislation, there is a real risk that sham contracts are leaving independent contractors undercompensated in respect of remuneration, superannuation and leave entitlements, and not appropriately protecting them against the possibility of unfair dismissal and workplace accidents. Problematically, sham contracts disproportionately affect vulnerable workers who have limited bargaining power, such as international students.1 These independent contractors may have a lack of knowledge surrounding the law and insurance policies, and limited financial resources to undertake any legal action to protect their working rights.

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The Gig Economy Technological advancements such as the Internet and smartphones have led to the emergence of start-ups and digital platforms such as Uber, Deliveroo, Foodora, and Airtasker. This in turn has created a new industry, generating new employment opportunities on contract, temporary, and freelance bases. This has given rise to the ‘gig economy’. 2 Undoubtedly, the success of these startups and digital platforms can be attributed to low establishment costs, few barriers of entry, and a contractor-based model, providing greater flexibility in managing operating costs and an ability to offer more competitive service offerings. Employee vs Independent Contractor For any business, the distinction between an employee and an independent contractor remains critical in determining the business’s cost base and risk, as well as worker’s remuneration and protection. Independent contractors may receive higher income and taxation advantages. However, they are not entitled to receive statutory benefits of an employee, including paid leave, superannuation, workers’ compensation, and unfair termination protections. Employers are vicariously liable for the actions of their employees, but not for those of their independent contractors. The differential treatment of these two categories has arguably led to the misclassification of employees as independent contractors via coercion or misrepresentation.3 Under Common Law An employee and an independent contractor are not defined in the Act, but are instead determined by the common law’s multi-factor test, in which no single element is decisive.4 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation held that the assessment of whether a worker was an employee or contractor requires the assessment of the “real substance” of the relationship beyond the mere contractual description of the relationship.5 The focus is upon the totality of the relationship, including the roles, functions, and work practices, as well as goodwill and the nature of business activities.6 Bromberg J established the following two-limbed test which, if satisfied, would likely indicate that the worker was an independent contractor:

In Hollis v Vabu, the bicycle couriers had to wear the company’s uniform and observe strict hours of work with no capacity to refuse work allocated to them.8 It was evident that the bicycle couriers were not running their own enterprise; the couriers had no freedom to conduct their own operations. The High Court held that “it was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time…to its customers, they were Vabu and effectively performed all of Vabu’s operations in the outside world. It would be unrealistic to describe the couriers other than as employees.”9 Under Statute In September 2004, the Coalition Government launched a new policy which promoted independent contracting as the spirit of entrepreneurship in Australia.10 In doing so, the Coalition Government raised concerns over the Court’s disregard of the principle of freedom of contract in Hollis v Vabu, given that the parties had agreed that the worker was to be hired as a contractor.11 The Independent Contractors Act 2006 (Cth) clarified that independent contractors are not deemed to be employees with the respective rights, entitlements, obligations, and liabilities of employees under State and Territory industrial laws.12 Independent contractors were granted the right to have ‘unfair’ service contracts reviewed by either the Federal Court or the Federal Magistrates Court, but not under State or Territory industrial tribunals.13

Sham Contracts The EEC, the PC, and the Australian Council of Trade Unions (‘ACTU’) have all raised concerns about the rise in sham contracts.14 It is estimated that 25% to 40% of contractor relationships should properly be characterised as employment relationships.15 A sham contract occurs where an 1. Is the person performing the work an entrepreneur that employer attempts to disguise an emowns and operates a business? ployment relationship as an independent 2. In the person performing the work as a representative contracting arrangement in order to avoid of their business, not the business receiving work?7 responsibility for statutory employee en-

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titlements. Sham contracts are prohibited under the following statutory provisions of the Act: • s 357: An employer cannot misrepresent an employment relationship or proposed employment arrangement as an independent contracting arrangement.16 • s 358: An employer cannot dismiss or threaten to dismiss an employee for the purpose of engaging them as an independent contractor to perform the same or similar services.17 • s 359 An employer cannot make a knowingly false statement to persuade or influence an employee to become an independent contractor.18 The Federal Court has the power to impose a maximum penalty of $54,000 per contravention.19 The investigation of suspected sham contracting arrangements is conducted by the FWO. During 201415, the FWO investigated 301 complaints relating to sham contracts and misclassification, but only 29% of those claims were sustained. Among those, 23 letters of caution were issued, and six matters taken to court. 20

changes in the labour market, and encompassing different characteristics of independent contracting relationships. 24 The PC concluded that the common law approach was best placed to assess the true nature of the relationship on a case-by-case basis.25 Conversely, the EERC advocated that all workers have access to the protections, labour standards, minimum wages, and conditions of the Act. 26 The EERC argued that the penalties for engaging in sham contracting need to outweigh the potential financial gains.27 Suggestions raised include reviewing payroll taxes and increasing penalties for misrepresentation. 28 In Sweeney v Boylan Nominees, Kirby J (in dissent) was prepared to extend the scope of an employer’s vicarious liability to a principal’s ‘representative agent’. 29Arguably, employers should not be able to avoid liability for the negligent acts performed by those who they engage to perform work. Kirby J raised the following important policy considerations which remain relevant to independent contractors and the gig economy: • The need for vicarious liability to respond to changing social conditions in which independent contractors are more prevalent, so that those responsible for causing injury are held liable.30 • The likelihood that the proliferation of independent contractors in the workplace will lead to Possible Reform increasing situations in which the contractor is Undoubtedly, the gig economy calls for either uninsured or unidentifiable.31 the re-consideration of the classifications of employees and contractors to The Foodora Cases reflect the current labour market, as well Despite Foodora’s requirements for its delivas a re-assessment of the evidentiary ery drivers to have an ABN number and to sign a burden for prosecuting sham contracts. contract entitled ‘Independent Contractors The PC recommended an amendment to Agreement’ before engagement, the FWO alleges s 357 of the Act, such that an employer that the drivers were not genuinely independent who had misrepresented an employment contractors.32 This was attributed to factors such relationship as an independent contracting as Foodora’s level of control and supervision over arrangement could only avoid liability the hours, location, and manner of work.33 Drivers are where the employer could not reason- required to wear a Foodora t-shirt and use Foodora ably have been expected to know of the storage boxes.34 The drivers are paid fixed hourly falsity of the representation.21 This proposal rates and amounts for each delivery, with no right lowers the evidentiary burden from a to negotiate remuneration.35 Similar to Hollis v Vabu, recklessness test to a reasonableness the drivers are arguably not conducting their own test.22 The ACTU and Legal Aid NSW raised delivery business, as they do not have their own concerns regarding the complexity of the customer base, business premises, promotionmultifaceted common law test and reit- al material, and website.36 The Transport Workers’ erated the need for a simpler assessment Union has also commenced proceedings against of the true nature of work arrangements.23 Foodora in the Fair Work Commission, relating to the However, the PC highlighted the limitations alleged unfair dismissal of a former delivery rider.37 of a stricter statutory test in mitigating loopInterestingly, Foodora announced on 1 August holes, remaining relevant given ongoing 2018 that it will cease operating in Australia from 20

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August 2018 to pursue other markets.38 It is debatable whether this commercial decision indicates the long-term unsustainability of the gig economy. A tighter regulatory oversight of start-ups and digital platforms would impose higher labour and compliance costs in running their business. The outcome of the Foodora test cases may lead to the exit of other start-ups and digital platforms due to higher costs of production, as their competitive service offering is dependent upon a low-cost model. From a policy perspective, it remains unclear whether it is in the best interests of society to retain these digital start-ups to create employment opportunities and technological innovation despite poor wages and working conditions for unskilled workers. The imposition of tighter labour laws on start-ups and digital platforms may ultimately risk these businesses moving offshore.

1. Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnson and Shae McCrystal, Creighton & Stewart’s Labour Law (The Federation Press, 6th edition, 2016) 200. 2. Michael Bailey, ‘The gig economy is growing whether you like it or not’, Australian Financial Review (online), 4 June 2018 < https://www.afr.com/brand/boss/gig-economy-explainer-the-phenomenon-rocking-the-way-we-work-20180514h101t9>. 3. Stewart, Forsyth, Irving, Johnson and McCrystal, above n 1 200. 4. Australian Government, Productivity Commission, Workplace Relations Framework, Productivity Commission Inquiry Report Vol 2 No. 76 (2015), 812. 5. On Call Interpreters and Translators Agency Pty Ltd v. Commissioner of Taxation (2011) 279 ALR 341, 246. 6. Ibid 204. 7. Ibid, 208. 8. [2001] HCA 44, 49-50. 9. Ibid 57. 10. Andrew Stewart, ‘WorkChoices and Independent Contractors: The Revolution That Never Happened’ (2008) 18(2) The Economic and Labour Relations Review 53, 57. 11. Ibid. 12. The Independent Contractors Act 2006 (Cth) s 7. 13. Ibid s 12. 14. Australian Government, Productivity Commission, Workplace Relations Framework, Productivity Commission Inquiry Report Vol 2 No. 76 (2015), 798. 15. Stewart, Forsyth, Irving, Johnson and McCrystal, above n 1 201. 16. Fair Work Act 2009 (Cth). 17. Ibid. 18. Ibid. 19. Fair Work Ombudsman, Fair Work Ombudsman commences legal action against Foodora, Media Release (12 June 2018) <https://www.fairwork.gov.au/about-us/news-and-me-

dia-releases/2018-media-releases/june-2018/20180612-foodora-litigation>. 20. Australian Government, Productivity Commission, Workplace Relations Framework, Productivity Commission Inquiry Report Vol 2 No. 76 (2015), 808. 21. Ibid 814. 22. Ibid 815. 23. Ibid 811. 24. Ibid 813. 25. Ibid. 26. The Senate, Education and Employment References Committee, Corporate avoidance of the Fair Work Act 2009 (2017) [7.37]. 27. Ibid [7.36]. 28. Ibid [7.38-7.40]. 29. [2006] HCA 19 [107]. 30. Ibid [102-105] 31. Ibid [106] 32. Fair Work Ombudsman, Fair Work Ombudsman commences legal action against Foodora, Media Release (12 June 2018) <https://www.fairwork.gov.au/about-us/news-and-media-releases/2018-media-releases/june-2018/20180612-foodora-litigation> 33. Ibid. 34. Ibid. 35. Ibid. 36. Ibid; [2001] HCA 44. 37. David Marchese, ‘Foodora rider fights dismissal from food delivery service in Australian first’, ABC News (online), 3 July 2018 <http://www.abc.net.au/news/2018-07-03/foodora-rider-fights-dismissal-from-food-delivery-service/9934138>. 38. David Marin-Guzman, ‘Foodora to close Australian operations on August 20’, Australian Financial Review (online), 2 August 2018 < https://www.afr.com/news/policy/industrial-relations/foodora-to-close-australian-operations-on-august-20-20180802-h13hkv>

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THE NETWORK DILEMMA APRIL REID

S

ocial media-based abuse is an increasingly ubiquitous issue in contemporary society. Currently, over 15 million Australians access Facebook on a regular basis – approximately 60% of the entire population.1 Individuals access social media for a variety of reasons, as technology’s role in everyday life becomes progressively more crucial. While social media can facilitate the creation of convenient communication channels and positive social networks, it can also be used to abuse others, often with devastating consequences. The unique nature of social media presents a plethora of challenges to the legislature when attempting to regulate and respond to platform-based abuse. Prominent concerns include privacy issues, jurisdictional issues, over-regulation issues and curtailment of freedom of speech. Ultimately, attempts to address cyber abuse have been sporadic and incohesive, as law makers are struggling to keep up with the explosion of technological use over the last few decades. Cyber abuse can take many forms. Among the most common is image-based abuse, defamation, impersonation and identity theft, ‘trolling’ or ‘flaming’, intimidation, and threats.2 The ease at which information can be disseminated on platforms means that cyber abuse often has a large number of virtual witnesses. 3

Furthermore, the pseudonymous and disassociated nature of social media means the full impact of cyber abuse on a victim can be obscured.4 This presents challenges to State and Federal Police agencies when attempting to investigate and identify perpetrators of abuse. Under Commonwealth criminal law, it is an offence to use a carriage service to imitate another for the purpose of committing another offence. 5 It is also an offence to use a carriage service to make a threat,6 or menace, harass or cause offence.7 However, the majority of cyber abuse does not meet the threshold of seriousness, despite research indicating otherwise.8 This is compounded by the fact that most cyber bullying cases are not referred to the Police for management.9 These findings suggest that there is difficulty with the full realization of effectiveness for criminal penalties, and a need for reform of existing legal structures surrounding prosecution of cyber abuse. Most social media platforms are multi-jurisdictional, which presents unique issues when regulating and prosecuting instances of online abuse. Recommendations have been made that the Australian government increase its effort in connecting with international governments to develop a network of resourc-

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es in combating risks faced by individuals online.10 Initiating international agreements and programs may alleviate some of the issues associated with cross-jurisdictional cybercrime and content removal. Further to this, cooperation allows consistency on an international level, which may result in more frequent instances of successful prosecution of abusers. The limitations inherent in multi-jurisdictional prosecution of cyber abuse must be addressed in order to minimise the negative effects such abuse has on victims. At a federal level, Australia has a comprehensive, albeit unorganized, framework for the prevention of cyber abuse. The Enhancing Online Safety Act 2015 (Cth) established the Office of the eSafety Commissioner to organise government initiatives and efforts to combat its occurrence.11 The eSatefy Commissioner facilitates a host of approaches aimed at protecting Australians online, including education, web content monitoring, policy development and complaint reporting channels.12 The Commissioner may also issue notices to individuals responsible for abuse, requesting that they cease abusive conduct, and apologise to the victim. The function of the eSafety Commissioner raises concerns about governmental attempts to curtail freedom of speech, as social media platforms are now the primary theatre for social and political discussion for many Australians, creating regulations over arenas traditionally free from government intervention. Although social media companies invest significant resources into providing reporting mechanisms, evidence suggests that complaints are often not adequately addressed13 then a decision is made to not remove offensive content, a victim has no further avenues of review with the social media company.14 The eSafety Commissioner may issue legally binding notices to social media companies for the removal of abusive content, with civil penalties available for failing to comply. This is based on a two-tiered regulation structure; social media companies are encouraged to comply with online safety standards to be granted a ‘tier 1’ status. This is a voluntary scheme, and adoption rates are low. Many have called for increased liability of social media companies for instances of abuse that occur on their platforms, but this is at odds with ideas of personal responsibility and actions of third parties. An analysis of the issues inherent in attempts to regulate cyber abuse poses more questions than it answers. It is evident that there is a clear gap between policy and legislative objectives and actual effectiveness of laws introduced. The Australian government now has the complex task of addressing cyber abuse in a decentralised, global environment whilst allowing individuals the freedom to enjoy the benefits new developments in technology and social media platforms.

“Cyber bullying cases are not referred to the Police for management.”

1. Australian Bureau of Statistics, Household Use of Information Technology Australia (28 March 2018) <http://www.abs. gov.au/ausstats/abs@.nsf/mf/8146.0>. 2. Julian Dooley, Jacek Pyzalski & Donna Cross, ‘Cyberbullying Versus Face-to-Face Bullying: A Theoretical and Conceptual Review (2009) 271 Journal of Psychology 182-188. 3. Tamara Sheppard & Marilyn Campbell, ‘Bystanders today: Face-to-face and online bystander actions in traditional bullying and cyberbullying’ In Cash Kowalski et al, Bullying: A Critical Problem in Education, Work Environments, Society. (Bloomington, 2017) 18-32. 4. Ibid. 5. Criminal Code Act 1995 (Cth) s 372.1A. 6. Ibid s 474.15. 7. Ibid s 474.17. 8. Keeley, M., Katz, I., Bates, S., & Wong, M. (2014). Research on youth exposure to, and management of, cyberbullying incidents in Australia: Part B ‒ Cyberbullying incidents involving Australian minors, the nature of the incidents and how they are currently being dealt with (SPRC Report 10/2014). Sydney: Social Policy Research Centre, UNSW Australia. 9. Katz, I., Keeley, M., Spears, B., Taddeo, C., Swirski, T., & Bates, S (2014). Research on youth exposure to, and management of, cyberbullying incidents in Australia: Synthesis report (SPRC Report 16/2014). Sydney: Social Policy Research Centre, UNSW Australia. 10. Organization for Economic Co-Operation and Development, The Protection of Children Online; Recommendation of the OECD Council: Report on risks faced by children online and policies to protect them (16 February 2012). 11. Office of the eSafety Commissioner, Legislation, <https:// www.esafety.gov.au/about-the-office/legislation>. 12. Ibid. 13. Ibid. 14. Enhancing Online Safety for Children (Regulation Impact Statement).

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Mergers Mergers Mergers Media Mergers Liam Fairgrieve

A history of the Australian mediaâ&#x20AC;&#x2122;s cycle away from duopoly and back againâ&#x20AC;Śand why it matters more the second time around.

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N

ine Entertainment Co’s pending merger with Fairfax Media demonstrates an unprecedented (and, until last year, legally impossible) game-changer in Australian media.1 It also serves as a summary of the shifting power dynamics within the Australian media landscape over the past 60 years. History For the first 30 years of television in Australia, television networks were largely an outlet for two newspaper barons who were simultaneously expanding their print empires. Australia’s first two commercial television networks, ATN-7 and TCN-9, were owned by John Fairfax and Sons (now Fairfax Media) and Frank Packer’s Australian Consolidated Press (ACP) respectively. During that time, Fairfax (from their national headquarters in what is now Building 10 at UTS) and ACP (which quickly bought Melbourne’s GTV-9 to form what is now the Nine Network) both rapidly expanded their portfolios nationwide. A turning point came in 1972, when ACP offloaded The Daily Telegraph to Rupert Murdoch. Eight years earlier, Murdoch’s News Limited had grown its influence exponentially by publishing Australia’s first national newspaper, The Australian. However, it was the acquisition of The Daily Telegraph that would start a period of consolidation which saw Murdoch push past Packer’s ACP to join Fairfax in Australia’s new duopoly. By 1986, Rupert Murdoch owned News Limited (publisher of The Daily Telegraph, The Australian, and owner of the Seven Network stations in Melbourne and Brisbane) and Herald and Weekly Times (the publisher of the two Melbourne mastheads which would shortly form The Herald-Sun), while Fairfax continued to own the Seven Network in Sydney, The Sydney Morning Herald, and Melbourne’s The Age). In early-1987, the two empires even traded with one another, with Fairfax acquiring the Seven Network in Melbourne and Brisbane from Murdoch. The Advent (and Demise) of Regulation Then, in late-1987, something unprecedented happened. The Federal Government stepped in to legislate. New laws greatly limited proprietors in their ability to own multiple media assets within the same geographical area. Additionally, the sum total of a proprietor’s media assets were only permitted to reach 60% of the Australian population.2 Under this new regime, the duopoly began to splinter. Fairfax sold off the Seven Network, which ultimately ended up majority-owned by Perth businessman Kerry Stokes. Murdoch stayed out of free-to-air television, launching subscription service Foxtel outside of the scope of the laws. Meanwhile, the Packer family’s ACP was able to hold on to the Nine Network because they no longer published daily newspapers; only periodical magazines. Over the ensuing 30 years, though, legislators occasionally showed signs of wavering on these laws. Amendments allowed television networks to circumvent reach rules by entering into affiliation arrangements with regional networks (which is why you might see familiar content broadcast under names like “Prime”, “WIN”, “NBN”, and “Southern Cross” when you go to the country). 3 Furthermore, an ultimately unsuccessful proposed amendment in 2002 would have seen restrictions on foreign ownership rules removed and certain cross-media laws relaxed.4

The most substantial relaxation of these laws came in 2006, with proprietors permitted to own licences which operated within the same geographical area in two of the three main media (newspapers, radio, and television). 5 Under that regime, Fairfax Media made a foray into radio, snapping up stakes in both of Sydney’s most influential talkback radio stations, 2GB and 2UE.6 Late last year, the two marquee regulatory provisions fell by the wayside. Citing the need to allow traditional media outlets to structure their businesses more efficiently,7 the Turnbull Government repealed all restrictions on how much of the population any single media proprietor can reach, as well as restrictions on owning licences across the three main media.8 Now, with the new laws paving the way for Fairfax Media and the Nine Network (long since gone from the Packer family) to merge, experts are foreshadowing a similar arrangement between News Corp Australia and the Seven Network in the near future.9 It thus looks likely that broadcast media in Australia will return to something close to a duopoly. The only difference? This time around, the television networks aren’t just subsidiaries of established newspaper giants. The Nine-Fairfax merger will see Nine as the majority stakeholder and the new entity’s namesake.10 All of this raises the question: why should the increasing concentration of media ownership be a concern for us now when it took decades of consolidation for ownership restrictions to be deemed necessary in the first place? After all, tales of Frank Packer’s routine interference with editorial independence became legendary in journalism circles decades ago. I think that our concern should lie twofold. Issue One: The Concentration of Power Worldwide media consolidations mean that the financial stakes are much higher than ever before. ‘Media empires’ no longer comprise a television channel and a morning masthead in each of Australia’s two or three major cities. These are now conglomerates with assets spanning continents and different forms of media, producing new and monetised content 24 hours a day. For example, News Corp Australia’s multinational parent company last year reported total revenue in excess of $2 billion.11 With such strong financial backing, the power of media outlets to influence political discourse has increased substantially. Where newspaper proprietors previously might have swung their paper’s editorial line, we now see figures from Sky News Australia (wholly owned by News Corp Australia) and 2GB (majority-owned by Fairfax Media) directly contacting Liberal Party caucus members to swing their votes in leadership spills.12 The way forward here is logical: as the consolidation of media ownership on a global scale continues, the financial capital of the remaining organisations keeps growing. The other obvious consequence is that fewer diverse perspectives will be heard by the voting public. Combine these two factors, and you can expect that the media figures capable of making themselves heard will regularly have their counsel sought by politicians and other figures of influence. It’s worth noting that the end of 2017 also saw News Corp attempting to stem sizeable losses.13 This brings me to my second concern.

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Issue Two: Tactics As alternative sources of media such as social media sites and blogs disrupt traditional delivery models, I believe that established media outlets are more likely to resort to sensationalist tactics to lure in consumers. In the online sphere, this is likely to see the formulation of stories with ever more “clickbait-y” hooks. At their best, they allow us to post snarky throwaway Facebook comments like: “IS THIS NEWS?” and “WHO CARES?”. At their worst, they create cheap moral panics, capitalising on the most base of human emotions to generate response. For example, the Seven Network came under heavy criticism this year for its reportage on African gang crime in Melbourne, which critics claimed exaggerated the extent of the problem and recklessly contributed to the ostracism of immigrants.14 Of course, “bad” journalism, such as reportage which capitalises on the populace’s fears of new phenomena or vulnerable communities, has always been around. The issue is that, with more consolidated mainstream media ownership, there are fewer mechanisms by which these narratives can be effectively rebutted. Established media outlets may be resorting to these tactics to “one-up” alternative sources of news collectively, but no single alternative news source has the resources or the market reach to successfully counteract narratives perpetuated by consolidated media organisations with less competition within their own sphere. Given that they are competition with each other, and often cater to increasingly polarised political niches, this author is pessimistic as to the chances of these alternative sources having any sort of unified (or unifying) impact on the prevailing narratives within socio-political discourse. Solutions? To me, the solution might not be as simple as re-erecting the safeguards dismantled last year. There is a compelling argument that, with the rather arbitrary “silo” structure of Australian media ownership dismantled, the mainstream media’s dwindling pool of resources can now be more efficiently allocated.15 The theory, one fundamentally underpinned by the tenets of free-market economics, is that the concentration of media resources will eliminate inefficiencies, paving the way for more focused and more public-responsive content. Under this theory, journalists will be able to work across different multimedia platforms, making for better-quality stories and facilitating more diverse consumption options for news and current affairs. The end result? A more informed and more engaged general public. There is a reason that I refer to this as a “theory”. I believe that all of these benefits are possible from a less regulated system, but they are not benefits that can be relied upon as matters of course. With economic viability as the guiding imperative, I think it to be equally likely that established media outlets will succumb to the two issues discussed in this article. Still, one should not denigrate the importance of “economic viability”. Across the board, media organisations have been haemorrhaging money for decades. Barely a week prior to the announcement of its planned merger with Nine, Fairfax and News Corp announced an arrangement to share printing operations in order to cut skyrocketing costs,16 resulting in at least 70 job losses to add to 125 redundancies in Fairfax’s editorial department last year.17 We can see, then, that allowing these media organisations to create efficiencies in their productivity is effectively a question of survival. If Australia’s media laws present us with a choice between a media landscape which is fundamentally flawed but still capable of producing vital

work, and no media landscape at all, I’d argue that we’d be fools to choose the latter. So perhaps we need to stop putting our stock in the law as our primary mechanism of ensuring a healthy and diverse media landscape. As consumers, I think that we should be playing an active role in the consumption process. This involves ensuring that we derive information which informs our worldviews from different sources and media platforms. This entails looking beyond the mastheads and the logos to ensure that our sources are not all under the same proprietorship. We should continue to critically analyse what we consume, interrogating it for any agenda beyond the central purpose of informing the public. Finally, this involves paying for news, whether that be from established mainstream sources or niche alternative sources. Being an informed citizen might be a right, but it involves time and effort from people who are already on relatively low wages. To the extent that we can, we should support them. I don’t know whether that will all be enough. Advertising revenue, any big media outlet’s main source of income, continues to fall. No amount of proactive consumption is likely to bring those big advertisers back. Our established media landscape continues to trend towards commercial unviability with an uncertain future and little apparent back-up plan. It is, however, worth a shot; lest Australia’s new media duopoly drift toward even further consolidation.

1. Michael Janda & Stephanie Chalmers, ‘Fairfax to Lose Its Name in $4 Billion Takeover by Nine’, ABC News (online), 26 July 2018 <http://www.abc. net.au/news/2018-07-26/nine-announces-fairfax-takeover/10037712>. 2. Broadcasting (Ownership and Control) Act 1987 (Cth). 3. Broadcasting Amendment Act (No. 2) 1990 (Cth). 4. Broadcasting Services Amendment (Media Ownership) Bill 2002 (Cth). 5. Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth). 6. Scott Rochfort, ‘Fairfax Radio Network Announces Merger with 2GB Owner Macquarie’, The Daily Telegraph (online), 22 December 2014 <https://www.dailytelegraph.com.au/news/fairfax-radio-network-announces-merger-with-2gb-owner-macquarie/news-story/febaad4a221eb53308ed4a42ba5dfd0a>; Simon Santow, ‘Fairfax Buys Southern Cross Radio Stations’, ABC News (online), 3 July 2007 <http://www.abc.net.au/ news/2007-07-03/fairfax-buys-southern-cross-radio-stations/88360>. 7. Australian Government, Updating Australia’s Media Laws Department of Communications and the Arts <https://www.communications.gov.au/whatwe-do/television/media/updating-australias-media-laws>. 8. Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (Cth). 9. John McDuling, ‘Focus Turns to Seven and News After Fairfax-Nine TieUp’, The Sydney Morning Herald (online), 27 July 2018 <https://www.smh. com.au/business/companies/focus-turns-to-seven-and-news-after-fairfaxnine-tie-up-20180727-p4zu3c.html>. 10. Janda & Chalmers, above n 1. 11. Mediaweek, ‘News Corp’s “Robust First Half”, Australian Revenue Up 4%, Subs Reach 389,000’, Mediaweek (online), 12 February 2018 <https:// mediaweek.com.au/news-corp-revenue-h1-2018/>. 12. Rebecca Gredley, ‘Alan Jones Contacted Liberal MPs to Urge them to Change Leaders’, The Sydney Morning Herald (online), 28 August 2018 <https://www.smh.com.au/politics/federal/alan-jones-contacted-liberal-mpsto-urge-them-to-change-leaders-20180828-p50052.html>. 13. Mediaweek, above n 11. 14. Robert Moran, ‘#NotMyAustralia: Anger Over Seven’s “Racist” Sunday Night Segment’, The Sydney Morning Herald (online), 9 July 2018 <https:// www.smh.com.au/entertainment/tv-and-radio/notmyaustralia-anger-overseven-s-racist-sunday-night-segment-20180709-p4zqer.html>. 15. Australian Government, above n 7. 16. Liz Farquhar, ‘Fairfax Decision to Close Printing Presses Called Into Question by Union and Local MP’, ABC News (online), 19 July 2018 <http:// www.abc.net.au/news/2018-07-19/fairfax-urged-reconsider-regional-printing-press-closures/10012088>. 17. Stephen Letts, ‘Fairfax Media to Miss Budget After Voting to Strike in Response to Job Cuts’, ABC News (online), 3 May 2017 <http://www.abc.net. au/news/2017-05-03/fairfax-media-cut-further-125-editorial-staff-in-restructure/8492738>.

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Notifiable Data Breaches: Australia’s New Privacy Law Scheme Matthew Keevers

es) Act 2017 (Cth) is the latest government strategy to ease concerns of protection of personal data. The legislation has created a n May 2018, the Commonwealth Bank of scheme for when data breaches occur. Australia (‘CBA’) confirmed it lost financial statements from almost 20 million accounts.1 This type of large scale data breach, affecting one of Australia’s largest banks, The Privacy Amendment (Notifiable Data indicates the ongoing challenge organisa- Breaches) Act 2017 (Cth) (‘the Act’) marks a tions face in order to adequately protect new era of data protection in Australian law. personal information and data. Australia’s The legislation amended the Privacy Act 1988 Privacy Act is a regulatory regime designed (Cth) and implemented the new Notifiable to protect these types of information.2 Data Breach Scheme (NDBS). The scheme, Privacy law, like many other areas of the law, which came into force on 22 February 2018, must confront significant challenges brought requires organisations bound by the Privaabout by technological developments which cy Act to notify the Office of the Australian place an abundance of personal informa- Information Commissioner (OAIC) of eligible tion and data in online realms. The storage data breaches. The Act defines organisation of data online leaves it vulnerable to data as including individuals, body corporates breaches and unauthorised access, whether and partnerships which are not small busidue to malicious intent or other causes. The ness operators, political parties, agencies or Privacy Amendment (Notifiable Data Breach- State/Territory authorities.3

Introduction

I

What is it?

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Eligible Data Breaches The first requirement for the NDBS to apply is for an eligible data breach to occur.4 This requirement is designed to prevent ‘notification fatigue’, which could occur where a high quantity of non-serious breaches are reported, thereby diluting the significance of a notification.5 An eligible data breach may occur if there is unauthorised access to, or unauthorised disclosure of, personal information held by an entity and a reasonable person would conclude that this would likely result in serious harm to the individuals to whom the information relates.6 Alternatively, an eligible data breach will have occurred if information is lost in circumstances where unauthorised access to, or unauthorised disclosure of, the information is likely to occur and, if this did occur, it would likely result in serious harm to the individuals to whom the information relates.7 Serious harm is not defined in the legislation. However, the Privacy Amendment (Notifiable Data Breaches) Bill 2016 Explanatory Memorandum states that serious harm could include physical, psychological, emotional, economic, financial and reputational harm.8 To determine whether a reasonable person would determine that serious harm is likely to result from the data breach, several factors are listed, such as the kind and sensitivity of information accessed, any relevant security measures used to protect the information and the nature of the harm.9

If an eligible data breach occurs, an organisation may take remedial action to address the breach. If the entity takes action such that a reasonable person would determine that serious harm would not likely occur to an individual, then an eligible data breach is taken not to have occurred.10 Further, if the organisation would have been required to provide notification of the data breach but for the remedial action, this requirement will no longer apply.11 In circumstances where an organisation is aware there are reasonable grounds to suspect an eligible data breach may have occurred, the organisation must carry out a reasonable and expeditious assessment of whether there are reasonable grounds to believe that an eligible data breach has occurred.12 This must be completed within 30 days of becoming aware of the reasonable grounds to suspect a data breach has occurred.13

Notification of Data Breaches Mandatory reporting of eligible data breaches is at the core of the NDBS. If an entity becomes aware of reasonable grounds to believe an eligible data breach has occurred, the organisation must prepare a statement which sets out: • The organisation’s identity and contact details • A description of the eligible data breach which may have occurred • The kinds of information concerned • Recommendations about what steps should be taken by individuals in response to the notification.14 Once an entity has prepared this statement, it must take such steps as are reasonable in the circumstances to notify the individuals to whom the relevant information relates, or whom are at risk due to the eligible data breach.15 Further, the Australian Information Commissioner may direct an organisation to give notice of an eligible data breach.16 The Commissioner may give such a direction if it is aware of reasonable grounds to believe an eligible data breach has occurred.17 This notice must meet the same requirements as if the organisation was giving notification under s 26WK of the Act.

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Enforcement The NDBS is primarily designed to facilitate better data management. It is therefore the Commissionerâ&#x20AC;&#x2122;s priority to provide guidance to the entity and assist individuals at risk of serious harm when responding to notifications.18 However, the Act does provide the Commissioner with powers to enforce the scheme. If an entity fails to meet certain requirements of the scheme, this will be an interference with the privacy of an individual.19 These failures include where an entity does not: conduct a reasonable and expeditious assessment of a suspected data breach;20 prepare a statement about the data breach and provide a copy to the Commissioner as soon as practicable;21 notify individuals at risk of serious harm as soon as practicable;22 or comply with a direction made by the Commissioner to prepare a statement and notify individuals as soon as practicable.23 The Commissioner may enforce an undertaking by an entity made pursuant to s 33E of the Act to comply with its requirements by bringing action in the Federal Court or Federal Circuit Court.24 Similarly, if the Commissioner makes a determination relating to a complaint or the conduct of an entity, it may bring the matter before the courts to be enforced.25 The court may also grant an injunction to prevent an entity from engaging, or planning to engage, in conduct which would constitute a violation of the Privacy Act.26 Finally, the Commissioner may also make an application to have the entity required to pay a pecuniary penalty to the Commonwealth.27 This measure aims to penalise serious or repeated breaches of the Privacy Act by an entity, which may be acting brazenly towards individualsâ&#x20AC;&#x2122; privacy.

Early Impacts of the Law and Looking Forward The OAIC publishes a quarterly report of notifications made by entities during each period. In the initial quarter from January to March 2018, 63 notifications were made under the scheme.28 It is important to note that the scheme only commenced partway through this period. However, in the April to June 2018 quarter, there was a significant increase in notifications, with 242 made during this period.29 89% of the data breaches during the second quarter accessed contact information, 42% included financial details and 19% included tax file numbers.30 The majority (59%) of data breaches were the result of malicious or criminal attacks and 36% were due to human error.31

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One of the most prominent examples of the early impact of the NDBS is the PageUp data breach. PageUp is a leading human resources company and has a worldwide presence with more than 2.6 million active employee users.32 The company engages with many of Australia’s largest companies, such as Coles, Kmart, and Telstra.33 On 5 June 2018, PageUp published a notification that it had detected unusual activity on its IT infrastructure and was investigating whether personal information had been compromised.34 The types of information which may have been accessed includes some personal data of employees, job applications, and job references.35 PageUp’s data breach demonstrates the utility of the NDBS in action, as several of Australia’s largest companies sent out emails to employees and those who had applied for positions notifying them that their information may have been compromised and to take precautions such as changing passwords and using anti-virus software. Further, the notification has led to widespread publicity in the media of the data breach and the NDBS. This extensive coverage makes it likely that more Australians will consider the impact that data breaches may have on the protection of their personal information and how they can protect their privacy. The NDBS is similar in operation to the General Data Protection Regulation (GDPR) of the European Union and the equivalent Data Protection Act 2018 (UK) and brings Australia’s law in line with similar overseas jurisdictions. It is possible that Australian courts will soon see the first cases concerning the scheme. Some firms have discussed the possibility of class-action litigation over large-scale data breaches such as the PageUp breach.36 If and when these cases do occur, and whatever the outcome may be, it will be interesting to see how Australian courts confront the issue of data protection.

Conclusion The NDBS has brought about significant change to Australia’s privacy law scheme. The requirements of the scheme are quite detailed and stringent and require Australian businesses and organisations to adjust their data management and protection processes in order to comply. A failure to do so could result in significant penalties if the OAIC seeks enforcement of the scheme by bringing action in the courts. The PageUp data breach has been the highest profile

data breach of the 305 data breach notifications which have been made to date.37 It is anticipated that there will continue to be a large volume of notifications made while entities evaluate the best methods for complying with the scheme’s requirements.

1. Jane Norman and Michael Janda, Commonwealth Bank admits it lost the details of almost 20 million accounts, didn’t tell customers (3 May 2018) ABC <http://www.abc.net.au/ news/2018-05-02/commonwealth-bank-confirms-loss-financial-records-20m-customers/9720928>. 2. Privacy Act 1988 (Cth) (‘Privacy Act’). 3. Ibid s 6C. 4. Privacy Act 1988 (Cth) s 26WE. 5. Explanatory Memorandum, Privacy Amendment (Notifiable Data Breaches) Bill 2016, 71 [34] (‘Explanatory Memorandum’). 6. Privacy Act s 26WE(2)(a). 7. Ibid s 26WE(2)(b). 8. Explanatory Memorandum, 72 [41]. 9. Privacy Act s 26WG. 10. Ibid s 26WF. 11. Ibid. 12. Ibid s 26WH. 13. Ibid s 26WH(2). 14. Ibid s 26WK. 15. Ibid s 26WL(2). 16. Ibid s 26WR(1). 17. Ibid. 18. Office of the Australian Information Commissioner, Data breach preparation and response (2018) 59 <https://www. oaic.gov.au/resources/agencies-and-organisations/guides/ data-breach-preparation-and-response.pdf>. 19. Privacy Act s 13(4A). 20. Ibid s 26WH(2). 21. Ibid s 26WK(2). 22. Ibid s 26WL(3). 23. Ibid s 26WR(10). 24. Ibid s 33F(1). 25. Ibid s 55(1)(b). 26. Ibid s 98(1). 27. Ibid s 80W(1). 28. Office of the Australian Information Commissioner, Notifiable Data Breaches Quarterly Statistics Report 1 April – 30 June 2018 (2018) 4 <https://www.oaic.gov.au/resources/ privacy-law/privacy-act/notifiable-data-breaches-scheme/ quarterly-statistics/notifiable-data-breaches-quarterly-statistics-report-1-april-30-june-2018.pdf>. 29. Ibid. 30. Ibid 7. 31. Ibid 32. PageUp, About PageUp <https://www.pageuppeople. com/about-us/>. 33. ABC News, PageUp data breach: What to do if you fear your personal details may have been compromised (7 June 2018) ABC <http://www.abc.net.au/news/2018-06-06/whatto-do-job-seeker-privacy-breach/9842474>. 34. PageUp, Unauthorised Activity on IT System (5 June 2018) PageUp <https://www.pageuppeople.com/unauthorised-activity-on-it-system/>. 35. Ibid. 36. Yolandra Redrup, PageUp faces customer losses ,lawsuits after data breach (7 June 2018), Australian Financial Review <https://www.afr.com/technology/pageup-to-faces-customer-loses-law-suits-after-data-breach-20180607-h112y4>. 37. Office of the Australian Information Commissioner, above n 28, 4.

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STAY TRUE.

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I am a daughter of Vietnamese migrants who came to Australia in the late eighties in search of a better future. My parents have always struggled with the English language so it’s really been my role to help them navigate their way through filling in forms dealing with Government departments and various legal issues. From a very young age this experience made me realise that it was likely there were many more people in a similar position to my parents. I wanted to help those people the same way I’d helped my parents and that’s when it clicked that becoming a lawyer was the thing for me. I am now a full time pro bono lawyer at Clayton Utz. This means that I help to implement the firms pro bono strategy by co-ordinating pro bono matters for our lawyers supervising our pro bono files and working on pro bono cases myself. A large part of my role in the pro bono team is to help our lawyers manage challenges… To listen to Hai-Van’s full story, go to: claytonutz.com/graduates Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

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Raising

the Stakes:

Australia’s Class Actions Regime

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he country’s leading chief financial advisors, ‘The Group of 100’ - have called for a major class action reform. The Group claims that due to the ‘explosion’ of class actions, the cost of insurance for company directors and board members is through the roof. Class actions are on the tip of everyone’s tongue in big business right now, thanks to the Royal Commission into Misconduct in the Banking, Superannuation, and Financial Services Industry. AMP is being sued by five separate groups of shareholders due to the recent ‘fees for no service’ scandal, and it looks like more dominoes will fall, including CBA. Class actions provide a mechanism for groups to seek legal redress against corporations, that would otherwise be too costly to litigate individually. The common result of class actions is dam-

ages against repeat offenders. Most class action proceedings are against corporations on behalf of shareholders or investors for breaches to the Corporations Act. In other words, they may curtail dodgy legal and business decisions, avoiding expensive repercussions. As such, the changes called for by several ASX top 50 chairpeople may potentially undermine the preventative effect of class actions. Further, unlike the corporate watchdog, this market-driven approach isn’t coming out of the public’s pocket. While figures may seem daunting at first glance, class actions only represent 0.5% of the matters filed in the Federal Court. Thus, the 64% increase in the amount of class actions filed from 2012 to 2017 and 88 representative proceedings currently filed in the Federal Court only represent a

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small portion of matters... Rather, the proliferation of class actions is predominantly due to the increase in shareholder proceedings. However, while these represent almost a third of all representative actions, none have ever resulted in judgment. Only a handful in the past five years proceeded to trial. Approved settlements in shareholder class actions ranged from $32.5 million to $121 million in 2016-2017 - a pretty penny for the insurance company of any director responsible for such a costly breach. In fact, 60% of all class actions in the Federal Court were concluded through judicially approved settlement between 2004 and 2017. The increase may also be attributed to the rise of third party litigation. All shareholder proceedings in the Federal Court over the last five years have received funding. In other words, a third party funder paid legal fees leading into trial or settlement and assessed the likelihood of success.They did so taking the risk of losing those costs, even if the case

doesnâ&#x20AC;&#x2122;t go their way. Thus, if the case has merit, it will be funded, and all funded actions have settled for large sums, with the funder taking a piece. In addition, the nature of class action litigation is complex, lengthy. It requires a heavy-handed approach to case management and the court must approve any settlement agreement and oversee the costs of the lawyers acting for the applicant/s. Matters often continue for several years after the initial filing. For these reasons, the number of actions filed per year isnâ&#x20AC;&#x2122;t representative of the full workload of the court. It is also worth noting that due to the representative nature of class actions, the court must approve any settlement agreement made between the parties. This means that there is a narrow chance for injustice to occur, either by the other party or for plaintiff law firms to unconscionably profit. For example, the stay of proceedings against AMP ordered pending the outcome of one of the

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actions filed does not prove that there is need for further regulation Rather, it demonstrates that the court uses several procedural tools to uphold the best interests of the court, and the client justly, quickly and cheaply. Further, the claim that other ongoing inquiries indicate a need to reform class actions is short-sighted. The proposed restrictions prescribed in theinquiry by the Australian Law Reform Commission questioning the regulation of third party funderslimit amount of settlement fee or court-awarded damages would be charged. This would potentially benefit applicants, but runs the risk of pushing funders out of the market. Thus, access to legal redress may be displaced, potentially resulting in less class action proceedings. There must be a balance struck to provide both access, and fair fees being charged for services; the loss of the preventative and reactive protection class actions provide would loosen the red tape on the corporate sector. Itâ&#x20AC;&#x2122;s no

surprise that ASX G-100 Directors support these amendments. To conclude, it is difficult to see how an increase in class actions against dodgy operators as a negative, especially in light of the recent Royal Commission. It demonstrates that both the class actions regime and access to third party funders provide greater accountability in the corporate sector. Further, in the event that competition between firms could cause a waste of time or money, or where the parties may lose out in settlement, the court can is able to intervene. There is a need to regulate aspects of litigation in this area, including third party funders, but not to that extentthat access to justice is jeopardised, despite repeated calls for reform. And if insurance is expensive, or inadequate in its coverage, one might suggest that we shouldnâ&#x20AC;&#x2122;t blame the brewing storm for getting wet. Blame your faulty umbrella - especially if you were responsible for the downpour.

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Whistleblowers, Espionage, and Timor-Leste: Exterminating a Bug and how to Brush it under the Rug

Michael Tangonan

I

n early June of this year, independent MP Andrew Wilkie revealed, using parliamentary privilege, that the Commonwealth Director of Public Prosecutions (CDPP) filed criminal charges against the former ACT Attorney-General Bernard Collaery, and a former spy known as â&#x20AC;&#x2DC;Witness Kâ&#x20AC;&#x2122;.1 During negotiations between Timor-Leste and Australia pertaining to an oil and natural gas treaty, Witness K blew the whistle on covert Australian Secret Intelligence Service (ASIS) operations, which comprised of bugging the negotiations between the two nations.

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Also receiving royal assent earlier this year, in June, was the National Security Legislation Amendment (Espionage Foreign Interference) Act 2018 (Cth) which is merely one of the 64 national security and anti-terror laws which have been passed in Australia since 2001.2 The effects of this legislation include criminalisation of the receipt, reading, or storage of confidential documents relating to national security by journalists.3 The broad terms of the provisions cause concern for both journalists and informants as the amendments effectively criminalises the investigative reporting of journalists on issues deemed as matters of national security unless otherwise authorised by the government.4 There was also heavy opposition to the amendments from 15 different domestic media organisations including Bauer Media, the ABC, the SBS, and both NewsCorp and Fairfax.5 Further concerns were also noted by Reporters Without Borders in their 2018 World Press Freedom Index, where Australia ranks 19th globally and is below countries like New Zealand (9th), Germany (15th), and Norway (1st), but above other developed countries like France (33rd), the United Kingdom (40th), and the United States (45th). The DPRK is last at 180th with the PRC closely following at 176th. One noteworthy entry is Singapore at 151st, worse than the Russian Federation at 148th.6 Perhaps a warning from Justice Mason, as he then was, in A v Hayden (No 2) might be pertinent to ensure that the Commonwealth considers its actions well: For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily from breaches of the law.7 In that case, the Commonwealth hired individuals to undertake training exercises with ASIS. One condition of employment was that the Commonwealth would ensure the identities of the individuals involved were kept confidential. The training exercises included activities which otherwise would be criminal and resultingly, the State Government of Victoria requested the Commonwealth to disclose the identities of persons involved so as to allow for prosecution at the state level. In reaching the High Court, it was argued that the Commonwealth must be restrained by virtue of the duty of confidence as imported by the individuals’

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contracts with the Commonwealth. Injunctions sought were denied as the terms of those employment contacts could not possibly undermine the obligations of the Commonwealth to States and would enable the Commonwealth to refuse disclosure with impunity. In returning to Witness K’s matter, first requesting advice from the Inspector-General of Intelligence of the time, who agreed that their evidence may be disclosed for the purposes of legal proceedings. Witness K disclosed the Australian bugging of negotiations which led to Timor-Leste leading lodging a contentious dispute with the Permanent Court of Arbitration (PCA) in The Hague briefing Bernard Collaery as counsel in 2013. Timor-Leste also sought the evidence of Witness K at The Hague. However prior to being able to take the opportunity to leave the country, Witness K’s house and Mr Collaery’s offices were raided by the Australian Security Intelligence Organisation (ASIO), with his passport confiscated (not yet returned as of 10 August 2018), along with documents such as affidavits prepared by Collaery and legal advice prepared for the purposes of Timor-Leste’s arguments before the PCA.8 Much of the confiscations seem to breach the sanctity of professional privilege and the confidentiality between client and legal representative. In responding to questions from independent MP Andrew Wilkie, Attorney-General Christian Porter mentioned that he cannot comment, as commentary generally does not assist in a trial.9 Nor was he able to provide any reasons as to why the perpetrators of the espionage of Timor-Leste were not pursued, but instead it was both the whistleblower that surfaced these issues and his former lawyer, who faced legal jeopardy.10 Mr Wilkie has mentioned that the actions of the Attorney-General in consenting to the charges against Witness K and Mr Collaery, made Australia resemble a ‘pre-police state, where instead of a royal commission they lock up people who more likely deserve the Order of Australia.’11 The conduct of the Attorney-General and the charges against Mr Collaery has worried many in legal circles, as the ASIO confiscation of documents included documents under legal privilege, which is protected under the Commonwealth and all State jurisdictions. Even more worrying is the

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entrenchment of greater powers of the executive arm of the Government in deciding what particular information would be considered as sensitive information or those pertaining to national security. And even in circumstances where government consent might be granted in reporting or investigating such information, there exists a high degree of control over the manner it can be presented and the areas of investigation, or as in the case of Witness K, the risk of prosecution well after the fact. In these turbulent times of data breaches, rapid loss of privacy, and the unrelenting onslaught of the state surveillance, this episode of eliminating whistle blowers is one that is concerning for all people who value free speech and free thought. Perhaps the dark and Orwellian future of State filtered information is one that seems to be coming close to Australia: an impenetrable firewall of our own where truth is never shown except for its manipulated reflections in this darkcave.

1. Jerome Doraisamy, ‘Senate crossbenchers request AFP investigation following charges against former ACT A-G’, Lawyers Weekly (online), 12 July 2018 <https://www.lawyersweekly.com.au/politics/23629-senate-crossbenchers-request-afp-investigation-following-charges-against-former-act-a-g?utm_source=LawyersWeekly&utm_campaign=12_07_18&utm_medium=email&utm_content=1>. 2. Johan Lidberg, ‘When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia’, The Conversation (online), 20 July 2018 <https://theconversation.com/ when-whistleblowers-are-prosecuted-it-has-a-chilling-effecton-press-freedom-in-australia-100008>. 3. Reporters Without Borders, ‘Australia must amend security bill to protect journalists and sources, Reporters Without Borders (online), 5 January 2018 <https://rsf.org/ en/news/australia-must-amend-security-bill-protect-journalists-and-sources>. 4. See for example s 122.1 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth). 5. The Joint Media Organisations, Submission to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, 22 January 2018. 6. Reporters Without Borders, 2018 World Press Freedom Index (2018) 2018 World Press Freedom Index <https://rsf. org/en/ranking#>. 7. A v Hayden (No 2) (1984) 156 CLR 532, 550 (Mason J). 8. Spencer Zifcak, ‘The Attorney-General, the ASIS Officer and his Lawyer: The Story of the Shameful Timor Prosecution’, John Menadue (online), 6 July 2018 < https:// johnmenadue.com/spencer-zifcak-the-attorney-general-theasis-officer-and-his-lawyer-the-story-of-the-shameful-timorprosecution/>. 9. Andrew Greene and Lucy Sweeney, ‘’Witness K’ and lawyer Bernard Collaery charged with breaching intelligence act over East Timor spying revelations’, ABC News (online), 29 June 2018 http://www.abc.net.au/news/2018-06-28/ witness-k-and-bernard-collaery-charged-intelligence-actbreach/9919268. 10. Paul Kerp, ‘Witness K scandal: decision to charge Timor-Leste bugging whistleblower was ‘independent’’, The Guardian (online), 2 July 2018 <https://www.theguardian. com/australia-news/2018/jul/02/timor-leste-bugging-scandal-decision-to-charge-former-spy-was-independent>. 11. Above n 9.

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Margaret Cai

Behind the door to corporate governance, culture and the characters caught up in the legal crossfire Now sir, said the bulldog in his business-like way. ‘Are you a animal, vegetable, or mineral?’ It is a question from the Chronicles of Narnia I’d pay to hear at the Hayne royal commission.

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he stories sprouting from our banking, superannuation and financial services industry speak to a profit-over-person complacency. The royal commission intended to serve as both a fact-finding exercise on industry misconduct and an inquiry into the wider regulatory framework. In practice, it has become a public playground of ethical scandals.1 It has brought to light inexplicable transgressions, like guarantees on a business taken from a legally blind pensioner; and credit cards that will take 138 years to pay off.2 In April, public blood – which had already started clotting – reached boiling point when it emerged that AMP’s financial planners had been charging for advice which was never received, and continued charging fees to customers who had already died. 3 The company’s CEO, chair and general counsel fell in quick succession.4 Together, AMP and the banks are expected to have stolen over $1 billion from their own customers in such ‘fees for no services’ arrangements. 5

Why it took a $75 million inquiry, which has so far received over 8900 public submissions,6 to reveal the ubiquity of misconduct in our financial services industry is more joke than riddle. More startling is the fact that many financial commentators believed the commission wasn’t necessary. In the beginning, its expense could hardly be justified in the presence of existing regulatory mechanisms to subdue mischief and the knee-jerk banking reforms deployed by government.7 However, the months which followed showed curious insight into the individuals, corporations and regulators involved. If we weren’t living through it, it would truly have all the makings of a horror-drama pastiche. The standard you work past is the standard you accept? In 2014, ASIC chairman Greg Medcraft notably observed that Australia is ‘a bit of a paradise for white collar crime’.8 His comment perhaps has more pertinence now than ever before.

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The April report by the Australian Prudential Regulation Authority (APRA) ‘makes scary reading for anyone interested in the psychology of bankers’.9 It revealed that employees from the Commonwealth Bank of Australia operated ‘well below industry practice’ but maintained the self-perception that they were ‘slick’ and ‘world class’.10 This attitude appears pervasive, as new revelations on corporations and their boards emerge daily in the AFR. Life insurance company Clearview deliberately targeted more expensive policies at customers from lower-socioeconomic backgrounds.11 Brokers from the National Bank of Australia accepted cash bribes to overlook fraudulent customer applications.12 Westpac submitted to a $35 million civil penalty (the largest awarded under the National Consumer Credit Protection Act) for the failure to properly examine consumer home loans.13 These instances reflect cultural standards, and with it, how company identities are empowered by their boards and wider-industry.14 And, while regulators can oversee structure, they are not positioned or resourced to ‘directly regulate culture, values, attitudes of behaviour’.15 The reality of corporate culture is that it refers to practice norms.16 It is about ‘how the mob operates’.17 Accordingly, the impetus to react and change

also rests with the investors, shareholders and boards which dictate daily operations. Because if corporate culture is described as ‘the way we do things around here’,18 the commission has taught us that sometimes the Davids and Goliaths of the world are on the same team. Indeed, at critical times during the royal commission, the same employees who had been breaking the law were the ones bringing these issues to the spotlight.

1. The AFR View, ‘The man in the hat with all the wrong questions’, The Australian Financial Review (Melbourne), 28 June 2018, 46. 2. Ibid. 3. Stephanie Chalmers, ‘Banking royal commission: AMP continues to charge dead customers life insurance premiums’, ABC News (online), 17 September 2018 http://www. abc.net.au/news/2018-09-17/amp-charges-dead-customersfor-life-insurance/10255978. 4. Amy Braddon and Narelle Hooper, We need to talk about the Royal Commission (1 June 2018) Australian Institute of Company Directors https://aicd.companydirectors.com.au/ membership/company-director-magazine/2018-back-editions/june/royal-commission. 5. Daniel Ziffer, ‘Banking royal commission: Fees for the dead and cash bribes — the greatest shocks (so far)’, ABC News (online), 8 September 2018 http://www.abc.net.au/ news/2018-09-08/banking-royal-commission-biggest-scandals/10214238. 6. Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (14 September 2018) https://financialservices.royalcommission.gov.au/Pages/ default.aspx. 7. David Gallagher, ‘Seven lessons we’ve learnt from the royal commission’, The Australian Financial Review (Melbourne), 39, 22 April 2018. 8. Comment, ‘Bank scandals cry out for a royal commission’ (2016) 73(5) The Lamp 22. 9. Amanda Hooton, ‘Why good people do bad things’, The Sydney Morning Herald (Sydney), 21 July 2018. 10. Ibid. 11. James Frost, ‘Banking royal commission: ClearView targeted poor people with low quality products’, The Australian

Financial Review (Melbourne). 12. Above n 5. 13. ASIC, ‘Westpac admits to breaching responsible lending obligations when providing home loans and a $35 million civil penalty’ (Media release, 18-255MR, 4 September 2018) https://asic.gov.au/about-asic/media-centre/find-a-media-release/2018-releases/18-255mr-westpac-admits-to-breachingresponsible-lending-obligations-when-providing-home-loansand-a-35-million-civil-penalty/; Clancy Yeats, ‘Westpac hit with record $35m penalty over home loan breaches’, The Sydney Morning Herald (Sydney), 4 September 2018. 14. Bruce Posner, ‘Don’t Give Up on Corporate Culture’ (2017) 58(4) MITSloan Management Review 96, 96. 15. Paul Cox, ‘An empirical investigation into the corporate culture of UK listed banks’ (2018) 26(1) Journal of Financial Regulation and Compliance 120, 121. 16. Joke Mooij, ‘Corporate culture of central banks: lessons from the past’ (Working Paper No 6, Netherlands Central Bank Research Department, July 2007). 17. Kristin Broughton, ‘Clash over how to fix banks’ corporate culture’ (2014) 1 American Banker 1. 18. M. Jason Martin, ‘“That’s the Way We Do Things Around Here”: An Overview of Organizational Culture’ (2006) 7(1) Electronic Journal of Academic and Special Librarianship. 19. David Wishart and Ann Wardrop, ‘What can the Banking Royal Commission achieve: regulating for good corporate culture?’ (2018) 43(2) Alternative Law Journal 81, 82.

Conclusion On a fundamental level, the findings and admissions of this commission are profound because they relate to a sector which touches all levels of our society. What is clear is that public trust in our banking, superannuation and financial services industry has well and truly eroded. The challenge now, is to discern where and how to channel that frustration. As Wishart and Wardrop aptly note, ‘a consumer faces little choice in an oligopolistic market where standards of behaviour are uniformly bad’.19 The centrality of the industry means that public efficacy to effect change may at times be low. Nevertheless, now that the public has insight into the culture and activities behind closed doors, the hope is that these institutions are prompted to self-correct.

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A Redistribution of Power: The Introduction of Modern Slavery Legislation in Australia Kimberley Ching

In an age of increasing technological developments and surprising political appointments, iterations of slavery that were previously deeply saturated in the world’s history remain less prevalent than ever before.

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hilst literature and film have attempted to reconcile these past injustices, it is negligent to assume that slavery does not continue to exist today. The introduction of the Modern Slavery Act 2018 (the ‘NSW Act’) by the NSW State Government and the Modern Slavery Bill 2018 (the ‘Cth Bill’) by the Federal Government seeks to address this by providing a statutory response to slavery. It covers numerous facets including human trafficking, forced labour, organ trafficking and forced childhood marriage. As Premier Gladys Berejiklian noted in her Second Reading Speech of the Bill to the Legislative Council, ‘it is not every day that members of this place or the other place put forward something that will have a positive impact for literally thousands of people’.1

The Key Legislative Changes Commonwealth The Cth Bill, introduced to the House of Representatives, predominantly seeks to establish a modern slavery reporting requirement, affecting over 3,000 large companies. From commencement, any Australian companies or foreign entities conducting business within Australia with an annual revenue over $100 million (AUD) will be required to publish a yearly statement on actions taken to address any traces of modern slavery existing in their supply chain and operations.2 These Modern Slavery statements will then be collected in a central, public repository maintained by the Minister for Home Affairs.3

NSW Separately, the NSW Parliament has already passed its own bill, which received royal Assent on 27 June 2018.4 The NSW Act, although similar in name and form to its Commonwealth counterpart, introduces several different requirements with a greater scope for compliance. Businesses with an annual revenue of over $50 million will now fall within the scope of the Act and will be obliged to comply with modern slavery reporting requirements once the Act commences. Briefly, the reporting requirements must outline the business’ supply chain, any due diligence steps/ procedures undertaken as a response to instances

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of modern slavery and any modern slavery training made available to staff. In addition, the NSW Act has also created two new advocate and governance roles: the NSW Anti-Slavery Commissioner and the Modern Slavery Committee. They are primarily established to promote action to combat modern slavery, monitor the reporting of modern slavery risks in government and commercial supply chains, and provide recommendations, information and advice on actions available to prevent modern slavery offences. Interestingly, NSW government agencies and departments also fall within the ambit of the NSW Act. Leading by example, NSW Government agencies will also be subject to mandatory modern slavery reporting and will be obliged to comply with any new directions issued by the NSW Procurement Board to ensure that procured goods and services are not products of modern slavery.5

Fundamental Considerations

The introduction of both pieces of legislation into Australia presents a unique opportunity for Australia to advance public awareness of the existence of modern slavery in global supply chains. Whether it be forced labour, deceptive recruitment or child labour, both the NSW Bill and the Cth Act intend to reveal concealed truths behind the large-scale procurement of goods and services. Although both the NSW Bill and the Cth Act intend to increase transparency across supply chains, various questions remain to be answered as to how both pieces of legislation will work in practice. In their present forms, both present a unique idiosyncrasy where businesses with a revenue of over $50 million will be subject to penalties under the NSW modern slavery framework, whilst entities with a turnover of over $100 million will not be subject to any penalties within the Cth jurisdiction. Although Penalties this issue is hoped to be resolved in further amendments to the Cth Bill, enforceability must be adWhilst peak industry bodies such as the Law Council dressed if the modern slavery legislation in Australia of Australia and the Property Council of Australia is to operate successfully. have welcomed the Federal Government’s introduction of the Cth Bill, several stakeholders including the Human Rights Law Council and Oxfam Australia have raised concerns over the legislation’s capacity for actual change.6 Whilst the Cth Bill introduces new reporting obligations for companies, it falls silent on any potential penalties that would naturally result from non-compliance. The lack of enforcement avenues within the Bill curiously discredits its own remarkable objectives. However, as the Bill is only in its first reading stage, these concerns are likely to be addressed in subsequent drafts. By contrast, the NSW Act imposes a range of penalties on non-complying entities. Penalties of up to $1.1 million (AUD) will be enforced upon com- 1. New South Wales, Parliamentary Debates, Legislative Assembly, 6 June 2018, 77-79 (Gladys Berejiklian, Premier). panies that fail to prepare/publish a modern slavery 2. Modern Slavery Bill 2018 (Cth) cl 11-16. statement7 and those who knowingly provide false 3. Ibid, cl 18. 4. Modern Slavery Act 2018 (NSW). and misleading information in their statement.8 The NSW Act also introduces a ‘modern slavery 5. Public Works and Procurement Act 1912 (NSW), s 175(3). 6. FTI Consulting, Modern Slavery Update: Federal Legislarisk order’ which empowers Courts to make prohib- tion introduced in the House of Representatives (July 2018) < itive orders on those that have been convicted of https://www.fticonsulting-asia.com/~/media/Files/apac-files/ a modern slavery offence.9 Breaching such an or- insights/articles/modern-slavery-update.pdf>. der will result in an offence which draws upon the 7. Modern Slavery Act 2018 (NSW) s 24(2). 8. Ibid s 24(7). equivalent of two years imprisonment or 500 pen- 9. Ibid s 29(1). alty units.10 10. Ibid s 29.

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Law, Power, and Peopleâ&#x20AC;&#x2122;s Right to Protest James Downie

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The Power of Protesting: The Right to Protest as a Method of Accountability

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n a world full of political controversy and momentous world events, the need to be able to voice opinions and engage in public affairs has become more important than ever. The framers of the Australian Constitution might not have predicted that we would be planning trips to Mars, or that a reality TV star would oversee the most powerful nation in the world. Fortunately, they did foresee the need for citizens to be engaged in the political process.To ensure this, they implemented two crucial systems into the Constitution: responsible government and representative government.1 It is the latter concept on which this article will focus. In particular, this article will examine whether this system upholds the ideal that government be ‘of the people, by the people, for the people’, and how elected officials remain accountable to those they represent through the ‘power’ of protesting.2 When those in power contradict the ideals of representative government, either in their policy choices, their management of international affairs, or in another area of public concern, it typically triggers a public response. Notably, this includes the protest. From individual statements to mass demonstrations, protests are seen as effective because they are a form of social accountability which ‘strengthens representative democracy by enabling direct participation in public affairs’.3 Protests act as a platform for ‘individuals or groups to express their dissent and grievances, to share views and opinions, to expose flaws in governance, and to publicly demand that the authorities and other powerful entities rectify problems and are accountable for their actions’.4 Politicians respond to these demands because of this element of social accountability and how it interacts with representative government; a failure to respond to the demands of protesters imposes reputational costs and weakens public confidence in their ability to govern.5 Such consequences can be devastating to a politician, and could cost them the next election. More severe failures can lead to the use of other methods of accountability, such as opening an investigation/commission or invoking the reserve powers of the Governor-General.6 But what happens when a government becomes fearful of a message or the traction of a protest? How do governments undermine these protests? Social scientist Brian Martin highlights three main strategies which governments employ to achieve this:

1. Suppression Hindering or disrupting a protest movement without the use of force. Tactics include spreading misinformation and misrepresenting the movement, strategic lawsuits, and using legislation to restrain the ability of a protest to function.7 2. Repression Using force to carry out mass arrests, beatings, and killings, or using the judicial system to effectuate harsh punishments or imprisonments.8 3. Oppression Systematic domination of subject groups through social arrangements such as economic inequality, political exclusion, and discrimination.9 Although the methods of suppression and oppression might be the more effective means of stopping a protest. It is the method of repression that often attracts media attention, and which has become increasingly problematic within Western nations. Despite that, these are the same nations where the act of protesting has been traditionally protected, advocated, and even celebrated. Ironically, state responses that employ violence and intimidation to silence a protest’s message often send a more powerful message than the protest itself, and can serve to amplify social accountability. This is notably demonstrated in the United States and Canada. Even though these nations have constitutionally entrenched rights regarding freedom of speech,10 protesters still face repression through police violence, mass arrests, and harsh punishments. In 2012, a Canadian student-led protest against rising tuition prices, termed the ‘Maple Spring’ came under suppressive attacks from both the judiciary and legislature, which gave rise to mass arrests by riot police. These protests were subject to a court injunction which limited protesting areas and legislation that that ‘enabled police to unilaterally decide whether the proposed route or venue posed a serious risk for public security and require the organizers to submit a new plan’, this sort of discretionary power was criticized to be an exercise in ‘arbitrary and abusive enforcement’.11

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A student leader spoke out against this ruling, commenting in an interview ‘[that] In his view, it was legitimate for student groups to take steps necessary to ensure the strike vote was respected and if that took the form of picket lines, that was a legitimate course of action’. His statements landed him in contempt of court, combined with these new laws which allowed for the arrests of hundreds of otherwise peaceful protesters, raised great public concern over what should be constitutionally protected freedoms. While many remained sceptical of the student movement, this government response could not be tolerated, and thousands took to the streets. Resultingly the suppressive legislation was repealed when the new Quebec government was voted in, and an inquiry launched into police behaviour.13 This case demonstrates that when a movement’s rights, and by extension the rights of the greater public are diminished through the repressive responses of government, social accountability is amplified and the mechanisms of accountability are prompted. This is also echoed in the Kent State University shootings of 1970, where the Ohio State National Guard marched on anti-war protesters with rifles and bayonets, killing four students and wounding nine others.14 President Nixon’s ‘cold response’ to the event turned a protest of a few hundred students at one university to one with millions of people nationwide,15 with around 100,000 protesters in Washington D.C. alone.16 The protests likely influenced the FBI’s decision to commence investigations into the matter, which in turn led to the trial of some of the offenders.17 It has been posited that the executive’s response to the tragedy ‘contributed to Nixon’s downfall’.18

“The government response could not be tolerated, and thousands took to the streets” Even where a government successfully destroys a protest through the use of force, and does not face any domestic accountability for its actions it still must answer to the international community. Such was the case in the Tiananmen Square protests of 1989, where thousands of students protesting for economic and political reform were fired upon by military and police in what was quickly described as a ‘massacre’ by Western media.19 While the government had been successful in silencing the protest, and avoided social accountability through the further threat of violence against its own citizens, it was held accountable by the international community; a number of which quickly imposed sanctions against China.20 While some uses of force may be justified in order to protect property, people, and public order. It is unwarranted or unjust violence that can be the catalyst which turns a small protest into a large protest, a large protest into a riot, and ultimately a riot into a rebellion. Those in power then become directly responsible to the people. This is marked throughout history by ‘classical revolutions’, such as those of Russia or France.21 However, they are also reflected in modern times, with events such as the Euromaidan protests of 2013 and the resulting Ukrainian revolution. These protests, which initially comprised thousands of students, resulted from an ‘abrupt policy shift from being pro-European to pro-Russian’.22 Police were deployed and ‘dispersed the youth in a cruel and ruthless manner’.23 With public confidence in the

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“Despite popular belief there is no right to protest in Ausralia, in fact we do not have a right to freedom of speech or assembly...” government already at an all-time low,24 this act of repression was the catalyst for the second phase of Euromaidan, which ‘provoked the transformation of the student movement into a nationwide movement against the regime’.25 What was initially a protest of a few thousand students about cutting ties with the European Union soon became a rebellion against corruption, with hundreds of thousands of protesters calling for the president’s resignation.26 After a series of violent clashes with police, the president was overthrown, Ukraine’s parliament took control, and elections were held.27 Riots and Rebellions however are not an effective or efficient method of accountability, as they are inherently destructive in nature. While they can remove those in power, and empower the people it can also leave the nation-state in an overall worse position.’28

The Right to Protest in Australia Despite popular belief there is no right to protest in Australia, in fact we do not have a right to freedom of speech or assembly,29 but can you really blame the greater public for not knowing? Given that Australia is a western representative democracy,30 a signatory to the International Covenant Civil and Political Rights,31 and it is rather commonplace to see a protest either in person or on the news. While the government does facilitate protesting it seemingly does so at its own discretion and given the increasingly more abundant and draconian antiprotest laws nationwide it appears as if the government’s tolerance for protesting is drawing thin. This is notably illustrated through New South Wales and Western Australia introducing suppressive acts that have been labelled as ‘an excessive and disproportionate response to the perceived problem’ by the NSW Bar Association,32 Western Australia has seen even greater resistance with “over fifty organisations and community groups” publicly objecting to the proposed legislation and three United Nations Special Rapporteurs urging

the Western Australian Parliament not to enact it’.33 Given these increasingly suppressive reforms it seems that our right to protest is fading. But what do Australian Protesters have to defend themselves against this? Not much really. There are precious few legal mechanisms protesters can use to defend themselves against these suppressive acts. The Common Law offers some protection through the statutory interpretation principle of legality, which merely requires that the drafters be specific and clear when they are trying to remove a right.34 United Nation Obligations of ICCPR it may have been given weight in popular media but there are relatively minor penalties for breaching these obligations, in fact Australia has done this multiple times with Refugees and sees little consequence.35 Self-imposed Restrictions such as s200 of LEPRA but Parliament can simply amend it,36 which is exactly what they have done.37

The Constitution The Constitution does not have an explicit freestanding right to protest.38 Instead, the High Court in Nationwide News found that there was an implied freedom of political communication.39 This negative freedom provides protection to protesters in some limited capacity, only invalidating law when it is incompatible with representative/responsible government or is not reasonably appropriate and adapted, as set by the Lange/McCloy test.40 However, protesters seeking this protection face lengthy and expensive court litigation which contributes to its suppressive effects. Although, there has been a notable precedent set by the recent case of Brown v Tasmania which may prove pivotal in future legal battles.41 While this case does not create an individual right to protest,42 rather the significance of this case is that it is the ‘first time the High Court has tested the strength of the implied freedom of political communication in the context of non-violent protest and freedom of

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assembly’. Consequently, the precedent in the High Court decision of Brown may have implications for other state anti-protest laws,43 especially in New South Wales with the proposed introduction of controversial legislation that seemingly ‘criminalises lawful protest’,44 though the effect of Brown in this regard ‘remains to be seen’.45 With the legal cliff-hanger of the Brown case coupled with increasing anti-protest laws and limited legal protections available to protesters, the ‘right’ to protest in Australia is now in a tenuous state. Yet, it must be asked whether protests are still an effective measure of accountability. Seemingly peaceful protests only prove effective when the government uses disproportionate repression methods which spark public outrage, at which point the protest loses its initial focus and shifts its message to one of anti-corruption or police brutality. As seen in both the Canadian and Ukrainian examples. So, without a government using repression tactics, can they avoid social accountability, that is to say, can governments simply ignore protests? The answer is apparently yes.

End of an Era This is illustrated through the global demonstrations against the US invasion of Iraq in 2003 which was labelled as the ‘largest protest event in human history’,46 one that spanned across 600 cities around the world, involving millions of protesters.47 In Australia alone, there were an estimated one million people marching, making it the largest protest in Australian history.48 Despite this enormous international effort, the protests were a complete failure, with the Australian and other world governments ignoring the public’s plea for peace and declaring war.49 Such a blatant disregard of the people’s will now be tied with the ever-increasing amount of anti-protest laws that ‘seemingly criminalises lawful protest’ could protesting be a thing of the past?50

Possibly, but perhaps given these new circumstances and the rise of technology a new form of protesting may take centre stage, that is the emergence of digital activism. Described by researchers ‘as an organized public effort, making the collective claim(s) on a target authority(s), in which civic initiators or supporters use digital media.’51 This form of protesting can avoid most anti-protest laws while still spreading its message and initiating forms of accountability. Though again there has been mixed success with this form of protesting. A successful campaign was the recent events of the #Metoo movement after a wave of sexual harassment allegations sparked international outrage causing many in positions of power to step down. Notably among them was the now notorious Harvey Weinstein who was later arrested on charges of rape and sexual assault.52 This near coordinated effort through spreading a message through social and traditional media, gives a peek at what potential effects the internet might have on future protests. Although this success can be contrasted with the failure of the ‘Net Neutrality’ protests which despite huge support from companies such as Amazon, Google and social media platforms such as Facebook all promoting the message the movement was ultimately a failure.53 Given this contrast the dominance of the Internet in future protests is still debatable, although more direct forms of action may be seen as more effective. Such as the internet’s ability facilitate forms of ‘whistleblowing’ such as leaking documents online or exposing corruption. This is demonstrated through leaks such as the ‘Panama Papers’,54 ‘Snowden Leaks’ or Chinese flesh search engines.55 The internet has in some instances been tied into the political process itself with ‘near real-time fact checking’ during the US Presidential debates.56

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In conclusion, while peaceful protesting is an inherent part of the political process and an extension of the constitutional system of representative government, it is only somewhat effective in keeping elected officials accountable to those they represent. A peaceful protest alone cannot accomplish much, though it may create awareness of an issue it must ultimately produce some form of accountability either by initiating legal mechanisms or instigating social accountability. Which in of itself requires that the protest movement relates to a topic of sufficient gravitas to concern the greater general public or authorities to spur into action. Given the increasing abundance of anti-protesting laws and the rise of new social and information sharing technologies the effectiveness and even relevance of ‘traditional’ protesting is questionable. These changes however may give rise to new opportunities for activists to exploit the expanding and essential element of cyberspace in our socio-political lives. 1. Elaine Thompson, ‘The Constitution and the Australian System of Limited Government, Responsible Government and Representative Democracy: Revisiting the Washminster Mutation’ (2001) 24(3) University of New South Wales Law Journal 657, 657-8. 2. Ourdocuments, Transcript of Gettysburg Address <https://www.ourdocuments.gov/doc.php?flash=true&doc=36&page=transcript>. 3. Right to Protest, Why The Right To Protest < https://right-to-protest.org/debate-protest-rights/ why-the-right-to-protest/>. 4. Ibid. 5. Sallie Hughes and Claudia Mellado, ‘Protest and Accountability without the Press: The Press, Politicians and Civil Society in Chile’ (2016) 21(1) The International Journal of Press/Politics 48, 52. 6. Ibid; Governor-General of the Commonwealth of Australia, Governor-General’s Role (13 June 2017) <https://www.gg.gov.au/governor-generals-role>. 7. Kathrin Fahlenbrach, March Klimke and Joachim Scharloth (eds), Protest Cultures: A Companion (Berghahn Books, 2016) 462-71. 8. Ibid. 9. Ibid. 10. United States Constitution amend I; Canada Act 1982 (UK) c 11, sch B pt I, s2. 11. Cara Zwibel, ‘“Take back the streets” Repression and criminalization of protest around the world’ (Report, International Network of Civil Liberties Organizations, Canadian Civil Liberties Association, October 2013) 18. 12. Ibid. 13. Ibid 19-20. 14. Jerry M. Lewis and Thomas R. Hensley, The May 4 Shootings at Kent State University: The Search for Historical Accuracy, Kent State University <https:// www.kent.edu/may-4-historical-accuracy>. 15. Mark Hamilton Lytle, America’s Uncivil Wars: The Sixties Era from Elvis to the Fall of Richard Nixon (Oxford University Press, 2005) 355. 16. Ibid. 17. Lewis and Hensley, above n 14. 18. History, The Kent State Shootings (2017) <https://www.history.com/topics/kent-state-shooting>. 19. abc NEWS, ‘Terror in Tiananmen Square’, abc NEWS, 4 June 1989, (Gary Shepard) <https:// abcnews.go.com/International/video/terror-tiananmen-square-23961584>. 20. Harry Harding, ‘The Impact of Tiananmen on China’s Foreign Policy’ (1990) 1(3) National Bureau of Asian and Soviet Research 5, 5. 21. Jack A. Goldstone, Modern Revolutions? (27 February 2008) Harvard International Review <http://hir.harvard.edu/article/?a=1685>. 22. Yuriy Shveda and Joung Ho Park, ‘Ukraine’s revolution of dignity: The dynamics of Euromaidan’ (2016) 7(1) Journal of Eurasian Studies 85, 85. 23. Ibid 87. 24. Ibid 85. 25. Ibid 87. 26. Ibid 86-8. 27. Ibid 88.

28. Timothy D. Sisk, ‘Reflections on Social Accountability’ (Report, United Nations Development Program, University of Denver, July 2013) 67 <http:// www.undp.org/content/dam/undp/documents/ partners/civil_society/publications/2013_UNDP_ Reflections-on-Social-Accountability_EN.pdf>; See generally Cynthia Buckley et al, The War in Ukraine is more devastating than you know ( 9 April 2017) The Washington Post <https://www.washingtonpost. com/news/monkey-cage/wp/2018/04/09/the-war-inukraine-is-more-devastating-than-you-know/?noredirect=on&utm_term=.0954eaf82345>. 29. Australian Human Rights Commission, Freedom of Information, opinion and expression <https:// www.humanrights.gov.au/freedom-information-opinion-and-expression>. 30. Museum of Australian Democracy Old Parliament House, Australian democracy: an overview <https://www.moadoph.gov.au/democracy/australian-democracy/>. 31. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 32. NSW Bar Association, Submission of the New South Wales Bar Association on the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, quoted by Mr David Shoebridge, NSW Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, Hansard (Legislative Assembly) 15 March 2016. 33. Nicholas Aroney and Lorraine Finlay, ‘Protesting the anti-protest laws: will a constitutional challenge succeed?’ (2016) 31(3) Australian Environmental Review 67, 68, quoting Tom Gotsis, “Protests and the law in NSW” (Briefing Paper No 7/2015, NSW Parliamentary Research Service, June 2015), 37. 34. Steven Rares, ‘Legality, rights and statutory interpretation’ (Paper presented at AGS Administrative Law Conference, Canberra, 20-21 June 2013) 22. 35. Australian Human Rights Commission, ‘Snapshot Report 2nd ed, Australian Human Rights Commission, March 2017) 10-2. 36. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 200. 37. Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW) s 200(3). 38. Tom Gotsis, “Protests and the law in NSW” (Briefing Paper No 7/2015, NSW Parliamentary Research Service, June 2015), 7. 39. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 40. [2015] HCA 43; Shipra Chordia, The trajectory of structured proportionality in implied freedom of political communication cases: Brown v Tasmania (2 November 2017) Australian Public Law <https:// auspublaw.org/2017/11/the-trajectory-of-structured-proportionality>. 41. [2017] HCA 43; Amelia Simpson ‘Brown v Tasmania: High court delivers a win for protesters’ (2018) 41 Law Society of New South Wales 90, 91. 42. Brendan Gogarty, Bob Brown wins his case, but High Court leaves the door open to laws targeting

protesters (19 October 2017) The Conversation < https://theconversation.com/bob-brown-wins-hiscase-but-high-court-leaves-the-door-open-to-lawstargeting-protesters-85742>. 43. Mary Heath and Peter Burdon ‘Protest and Political Communication after Brown v Tasmania’ (2018) 40(1) Bulletin (Law Society of South Australia) 10, 11. 44. Ibid. 45. Tim Gotsis, ‘The High Court’s decision in Brown v Tasmania’ (Research Paper No 7/2017, NSW Parliamentary Research Service, Parliament of New South Wales, 2017) 8 <https://www.parliament.nsw.gov.au/researchpapers/ Documents/The%20High%20Court%27s%20decision%20in%20Brown%20v%20Tasmania.pdf>. 46. Stefaan Walgrave and Dieter Rucht, ‘The World Says No to War: Demonstrations against the War on Iraq’ (2010) 30 Social Movements, Protest and Contention I, xiii. 47. Ibid. 48. Libby Stewart, Memorable Marches in Australian History (27 January 2017) Museum of Australian Democracy Old Parliament House < https://www. moadoph.gov.au/blog/memorable-marches/>. 49. The Sydney Morning Herald, Howard rejects Global protests (17 February 2003) <https://www. smh.com.au/national/howard-rejects-global-protests-20030217-gdga9s.html>. 50. Heath and Burdon, above n 43, 11. 51. Frank Edwards, Phillip N. Howard and Mary Joyce, ‘Digital Activism and Non-Violent Conflict’ (Research Project, November 2013) 4. 52. Kate Samuelson, Harvey Weinstein Arrested on Charges of Rape, Sex abuse and More’ (25 May 2018) Time < http://time.com/5291392/harvey-weinstein-arrested/>. 53. Yochai Benkler, ‘The Role of the Network Public Sphere in the U.S. Net Neutrality Policy Debate’ (Research Report, University of Pennsylvania, 2015) 13. 54. Scilla Alecci, Former Pakistan PM Sharif Sentenced to 10 Years over Panama Papers (6 July 2018) International Consortium of Investigative Journalists < https://www.icij.org/investigations/panama-papers/former-pakistan-pm-sharif-sentencedto-10-years-over-panama-papers/>. 55. Yochai Benkler, ‘A public Accountability Defense for National Security Leakers and Whistle-blowers’ (2014) 8 Harvard Law & Policy Review, 281, 281-2; Li Gao and James Stanyer, ‘Hunting corrupt officials online: the human flesh search engine and the search for justice in China’ (2013) 17(7) Journal of Information, Communication & Society 814, 814-6. 56. Elizabeth Jensen, Behind the Scenes: NPR Fact Checks First Debate in Near Real Time (3 October 2016) National Public Radio < https://www.npr. org/sections/ombudsman/2016/09/27/495654679/ behind-the-scenes-npr-fact-checks-first-debate-innear-real-time>; see also D’Angelo Gore et al, FactChecking the Final Presidential Debate (20 October 2016) FactCheck.Org < https://www.factcheck. org/2016/10/factchecking-the-final-presidential-debate-2/>.

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Basil Naimet

Sexual harassment in the workplace has received an overwhelming amount of media coverage – and rightly so – since actor Alyssa Milano’s tweet in 2017 instigated the #MeToo movement.1

O

n the 20th of June, 2018 Sex Discrimination Commissioner Kate Jenkins announced that a National Inquiry into sexual harassment in Australian workplaces would take effect.2 Ms Jenkins stated the inquiry would ensure the safety of people from all industries who were subjected to some form of sexual harassment, with hopes that more complainants will come forward. ‘In 2012, only one in five people who had been sexually harassed at work formally reported their experience. We know from our research that many people are afraid to report their experiences of sexual harassment out of fear that it could damage their career.’ The continued ridicule of those who lodged complaints was something that the inquiry would address. ‘Our research shows that nearly one third of people who made a formal complaint about workplace sexual harassment said they suffered significant consequences as a result, such as being labelled a trouble maker, being ostracized, victimized or ignored by colleagues’, the Commissioner said. Ms Jenkins said submissions to the inquiry would be confidential, unless those lodging them wanted them made public. The focus of the Australian Human Rights National Inquiry is to drill into the nature and prevalence of sexual harassment in Australian workplaces, and on ‘drivers’ of workplace sexual harassment and introduce measures to address this harassment. 3 ‘This could include characteristics of individuals which may mean they are more likely to experience sexual harassment, such as their gender,

age, sexual orientation or disability. Our 2012 survey found that the targets of sexual harassment are most likely to be women and young adults. Other drivers could include particular characteristics or practices in workplaces, cultures or policies, which increase the risk of sexual harassment, as well as commonly held attitudes and norms.’ The inquiry will also investigate how social media is used to perpetrate sexual harassment in the workplace through a survey. The commissioner said the results from the survey will provide an indication of the prevalence of online use and technology to carry sexually explicit material. ‘The commission will examine how people are using technology and social media to perpetrate sexual harassment and sex-based harassment in the workplace, and how technology and social media is being used to identify victims and perpetrators’. The terms of reference of the inquiry, amongst other things, will report on the adequacy of the legal framework with respect to sexual harassment.4 It will also examine existing measures and good practices undertaken by employers in preventing and responding to workplace sexual harassment both locally and internationally. 5 Other noteworthy outcomes will be workers compensation, employee turnover and absenteeism.6 It appears, the current legislation is not a definitive deterrent. ‘More than 30 years on from the introduction of the Sex Discrimination Act 1984 (Cth), it is clear that legislation alone will not prevent sexual harassment. While the commission successfully conciliates the majority of complaints relating to the sexual harassment brought to us, the majority

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of people who experience workplace sexual harassment do not report it at all’, Ms Jenkins said. Leadership and a genuine commitment from the hierarchy from all industries is what will bring change according to Ms Jenkins. ‘The 2012 survey findings make it clear that putting an end to sexual harassment and ensuring the safety and security of all employees while at work also requires leadership… from government, unions and all sectors of the Australian workplace’. Ms Jenkins states that results from the inquiry will also be adopted by the international community. ‘The inquiry will examine existing measures in preventing and responding to workplace sexual harassment and consider examples of best practice both in Australia and internationally in making its recommendations for change. Policies to deal with harassment are essential, but it is also critical that messages around acceptable behaviour and workplace conduct, and zero tolerance for sexual harassment, be reinforced by leadership’. Ms Jenkins said that for the first time, the national survey will provide data on how prevalent sexual harassment is across all major industries. The subsequent information will provide a good insight into the ‘scale and nature of these issues within particular industries’. Data on the prevalence of sexual harassment across all industries is not the only first. ‘There is enormous international interest in the work we are doing in Australia. This National Inquiry is the first of its kind in the world and will be closely followed by countries around the globe. ‘The result from the inquiry will form the basis for which the commission will provide the government and business with an evidence base for developing targeted strategies and policies aimed at preventing workplace sexual harassment, and will inform the recommendations of the inquiry’, Ms Jenkins concluded. It’s understood that the Human Rights Commission is not aware of any other inquiry or anything similar has been established in response to the #MeToo movement. Submissions for the Inquiry opened on the 9th of July.

1. Australian Broadcasting Corporation, What is the #MeToo campaign?, (17 October 2017) <http://www.abc.net.au/ news/2017-10-16/what-is-the-metoo-campaign/9055926>. 2. Australian Human Rights Commission, ‘National Inquiry into sexual harassment in Australian workplaces’ (Media Release, 20 June 2018). <https://www.humanrights.gov.au/news/ media-releases/national-inquiry-sexual-harassment-australian-workplaces>. 3. Australian Human Rights Commission, ‘Submissions to the National Inquiry into sexual harassment in Australian workplaces open today’ (Media Release, 9 July 2018). < https://www.humanrights.gov.au/news/media-releases/ submissions-national-inquiry-sexual-harassment-australian-workplaces-open-today>. 4. Australian Human Rights Commission, National Inquiry Into Sexual Harassment in Australian Workplaces (9 July 2018) <https://www.humanrights.gov.au/our-work/sex-discrimination/projects/national-inquiry-sexual-harassment-australian-workplaces>. 5. Ibid. 6. Ibid. 7. Ibid.

The Inquiry will be conducted pursuant to the Commissioner’s functions directed by the Australian Human Rights Commission Act 1986 (Cth).7 If you are subjected to sexual harassment or abuse in the workplace contact the Human Right Commission by following this link: https://www.humanrights.gov.au/our-work/sex-discrimination

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The Full Bench Issue 2 2018  

The Second Edition of ‘The Full Bench’ for 2018 is now available! For this edition, we take a look at increasing global movements and legal...

The Full Bench Issue 2 2018  

The Second Edition of ‘The Full Bench’ for 2018 is now available! For this edition, we take a look at increasing global movements and legal...

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