The Full Bench Issue 2 2018

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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 consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Disclaimer All expressions of opinion published 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 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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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.

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:

Power’, we take a look at the opportunities for law to hold the powerful to account in the https://www.facebook.com/UtsTheFullBench2017/ Next, in our second section, ‘Political and Legal Power’, we examine how courts and 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 The leader of this charge was Home Affairs 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 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.

cault. 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

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 di-

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

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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

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 revealed the widespread unconscionable 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 highAffairs 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 leadand 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 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 plication 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

Welcome to our second edition of The Full Bench. Continuing from the ideas of security

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

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

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 product. I hope you enjoy this edition of The in pulling this together. I hope you all enjoy Full Bench. perusing through the following pages of The Full Bench!

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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 mendations 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 ployee’ 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 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 ity in managing operating costs and an ability to offer more competitive service offerings.

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

Employee vs Independent Contractor For any business, the distinction between an employee and an independent contractor remains Under Statute critical in determining the business’s cost base and In September 2004, the Coalition Govrisk, as well as worker’s remuneration and protec- ernment launched a new policy which tion. Independent contractors may receive higher promoted independent contracting as the income and taxation advantages. However, they spirit of entrepreneurship in Australia.10 In doing so, the Coalition Government raised employee, including paid leave, superannuation, concerns over the Court’s disregard of the workers’ compensation, and unfair termination principle of freedom of contract in Hollis v protections. Employers are vicariously liable for Vabu, given that the parties had agreed the actions of their employees, but not for those that the worker was to be hired as a conof their independent contractors. The differential tractor.11 treatment of these two categories has arguably led The Independent Contractors Act 2006 dent contractors via coercion or misrepresentation.3 tors are not deemed to be employees with the respective rights, entitlements, Under Common Law obligations, and liabilities of employees An employee and an independent contractor are under State and Territory industrial laws.12 Independent contractors were granted by the common law’s multi-factor test, in which the right to have ‘unfair’ service contracts no single element is decisive.4 On Call Interpreters reviewed by either the Federal Court or the and Translators Agency Pty Ltd v Commissioner Federal Magistrates Court, but not under of Taxation held that the assessment of whether State or Territory industrial tribunals.13 a worker was an employee or contractor requires the assessment of the “real substance” of the relaSham Contracts tionship beyond the mere contractual description The EEC, the PC, and the Australian of the relationship.5 The focus is upon the totality of Council of Trade Unions (‘ACTU’) have all the relationship, including the roles, functions, and raised concerns about the rise in sham work practices, as well as goodwill and the nature contracts.14 It is estimated that 25% to 40% of business activities.6 Bromberg J established the of contractor relationships should properly be characterised as employment relationlikely indicate that the worker was an independent ships.15 contractor: 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 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 misclaswere sustained. Among those, 23 letters of caution were issued, and six matters taken to court. 20 Possible Reform Undoubtedly, the gig economy calls for tions of employees and contractors to as a re-assessment of the evidentiary burden for prosecuting sham contracts.

The PC recommended an amendment to s 357 of the Act, such that an employer who had misrepresented an employment relationship as an independent contracting arrangement could only avoid liability where the employer could not reasonably have been expected to know of the falsity of the representation.21 This proposal lowers the evidentiary burden from a recklessness test to a reasonableness test.22 The ACTU and Legal Aid NSW raised concerns regarding the complexity of the multifaceted common law test and reiterated the need for a simpler assessment of the true nature of work arrangements.23 However, the PC highlighted the limitations of a stricter statutory test in mitigating loopholes, remaining relevant given ongoing

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 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 increasing situations in which the contractor is 31

The Foodora Cases Despite Foodora’s requirements for its delivery drivers to have an ABN number and to sign a contract entitled ‘Independent Contractors Agreement’ before engagement, the FWO alleges that the drivers were not genuinely independent contractors.32 This was attributed to factors such as Foodora’s level of control and supervision over the hours, location, and manner of work.33 Drivers are required to wear a Foodora t-shirt and use Foodora storage boxes.34 rates and amounts for each delivery, with no right to negotiate remuneration.35 Similar to Hollis v Vabu, the drivers are arguably not conducting their own delivery business, as they do not have their own customer base, business premises, promotional material, and website.36 The Transport Workers’ Union has also commenced proceedings against Foodora in the Fair Work Commission, relating to the alleged unfair dismissal of a former delivery rider.37 Interestingly, Foodora announced on 1 August 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.

2018 <http://www.abc.net.au/news/2018-07-03/foodora-rid38. 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 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. This is compounded by the fact that most cyber bullying cases are not referred to the Police for management.9 alization 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 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 freetechnology 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, cyberbulinvolving 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).

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 media’s cycle away from duopoly and back again…and 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 networks were largely an outlet for two newspaper barons who were simultaneously expanding their print empires. Australia’s 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.

Telegraph to Rupert Murdoch. Eight years earlier, Murdoch’s 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.

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 and 2UE.6 Late last year, the two marquee regulatory provisions fell by the wayside. Citing the need to allow traditional media 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.

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 restric-

of The Daily Telegraph, The Australian, and owner of the Seven Network stations in Melbourne and Brisbane) and Herald of Frank Packer’s routine interference with editorial indepenand Weekly Times (the publisher of the two Melbourne mast- dence became legendary in journalism circles decades ago. heads which would shortly form The Herald-Sun), while Fairfax I think that our concern should lie twofold. continued to own the Seven Network in Sydney, The Sydney Issue One: The Concentration of Power the two empires even traded with one another, with Fairfax acquiring the Seven Network in Melbourne and Brisbane from stakes are much higher than ever before. ‘Media empires’ no Murdoch. longer comprise a television channel and a morning masthead in each of Australia’s two or three major cities. These are now The Advent (and Demise) of Regulation conglomerates with assets spanning continents and different forms of media, producing new and monetised content 24 Federal Government stepped in to legislate. New laws greatly hours a day. For example, News Corp Australia’s multinational limited proprietors in their ability to own multiple media assets parent company last year reported total revenue in excess of within the same geographical area. Additionally, the sum total $2 billion.11 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, tially. Where newspaper proprietors previously might have which ultimately ended up majority-owned by Perth businessman Kerry Stokes. Murdoch stayed out of free-to-air television, News Australia (wholly owned by News Corp Australia) and launching subscription service Foxtel outside of the scope of 2GB (majority-owned by Fairfax Media) directly contacting the laws. Meanwhile, the Packer family’s ACP was able to hold Liberal Party caucus members to swing their votes in leadership on to the Nine Network because they no longer published daily spills.12 newspapers; only periodical magazines.

The way forward here is logical: as the consolidation of media Over the ensuing 30 years, though, legislators occasionally showed signs of wavering on these laws. Amendments allowed the remaining organisations keeps growing. The other obvious television networks to circumvent reach rules by entering into consequence is that fewer diverse perspectives will be heard by the voting public. Combine these two factors, and you can you might see familiar content broadcast under names like “Prime”, “WIN”, “NBN”, and “Southern Cross” when you heard will regularly have their counsel sought by politicians and go to the country). 3 Furthermore, an ultimately unsuccessful proposed amendment in 2002 would have seen restrictions on It’s worth noting that the end of 2017 also saw News Corp foreign ownership rules removed and certain cross-media laws attempting to stem sizeable losses.13 This brings me to my relaxed.4 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 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 dwined.15 The theory, one fundamentally underpinned by the tenets of free-market economics, is that the concentration of media 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 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 productivity is effectively a question of survival. If Australia’s media laws present us with a choice between a media landscape

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. ture/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

Introduction

I

n May 2018, the Commonwealth Bank of

statements from almost 20 million accounts.1

What is it?

- Breaches) Act 2017 (Cth) (‘the Act’) marks a

to protect these types of information.2 Privacy law, like many other areas of the law,

-

-

-

ness operators, political parties, agencies or 3

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Eligible Data Breaches

-

4

This -

5

-

10

Further, if the

no longer apply.11 In circumstances where an organisation

whom the information relates.6 Alternativeif information is lost in circumstances where closure of, the information is likely to occur information relates.7

-

-

12

-

13

Notification of Data Breaches

-

-

reputational harm.8

statement which sets out: -

harm.

14

ment, it must take such steps as are reason-

15

Further, the Australian Information Com16

The Com17

This no-

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Enforcement missioner with powers to enforce the scheme. If an en18

20

21 22

23

The Commis-

Circuit Court.24 The court may also grant an injunction to prevent an entity from engaging, or planning to engage, vacy Act.26 Finally, the Commissioner may also make an ary penalty to the Commonwealth.27 This measure aims 25

Early Impacts of the Law and Looking Forward 28

30

It is important to note that -

-

to human error.31

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One of the most prominent examples of the

37

-

It is -

with more than 2.6 million active employee users.32 The company engages with many of Australia’s largest companies, such as Coles, 33

was investigating whether personal informa34 The types of 35

Page-

largest companies sent out emails to emsitions notifying them that their information

-

how they can protect their privacy.

Australia’s law in line with similar overseas -

36

-

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/ cial-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 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. 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).

– 30 June 2018 (2018) 4 <https://www.oaic.gov.au/resources/

Conclusion change to Australia’s privacy law scheme.

-

the OAIC seeks enforcement of the scheme -

tics-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>. above n 28, 4.

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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

STAY TRUE.

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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. by co-ordinating pro bono matters for our lawyers supervising our 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.

11/10/18 10:10 am

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Raising

the Stakes:

T

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 shareholders due to the recent ‘fees for pocket. 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 Thus, the 64% increase in the amount of corporations, that would otherwise be too costly to litigate individually. The 88 representative proceedings currently common result of class actions is damadvisors, ‘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

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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 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

doesn’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 For these reasons, the number of ac-

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 received funding. In other words, a third for injustice to occur, either by the other party funder paid legal fees leading into trial or settlement and assessed the likelihood of success.They did so taking the of proceedings against AMP ordered risk of losing those costs, even if the case pending the outcome of one of the

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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 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. It’s no

surprise that ASX G-100 Directors support these amendments. 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 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 shouldn’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 Commonnal charges against the former ACT Attorney-General Bernard Collaery, and a former spy known as ‘Witness K’.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 clude criminalisation of the receipt, reading, or stor-

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. ing 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

security by journalists.3 The broad terms of the provisions cause concern for both journalists and inalises 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 Bernard Collaery as counsel in 2013. Timor-Leste also sought the evidence of Witness K at The including Bauer Media, the ABC, the SBS, Hague. However prior to being able to take the and both NewsCorp and Fairfax.5 Further opportunity to leave the country, Witness K’s concerns were also noted by Reporters Without Borders in their 2018 World Press Freedom Index, Australian Security Intelligence Organisation where Australia ranks 19th globally and is below countries like New Zealand (9th), Germany (15th), returned as of 10 August 2018), along with and Norway (1st), but above other developed countries like France (33rd), the United Kingdom laery and legal advice prepared for the purposes of (40th), and the United States (45th). The DPRK Timor-Leste’s arguments before the PCA.8 Much 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 between client and legal representative.

Perhaps a warning from Justice Mason, as he then In responding to questions from independent was, in A v Hayden (No 2) might be pertinent to MP Andrew Wilkie, Attorney-General Christian ensure that the Commonwealth considers its Porter mentioned that he cannot comment, as actions well: commentary generally does not assist in a trial.9 For the future, the point needs to be made loud- Nor was he able to provide any reasons as to why ly and clearly, that if counter-espionage activities the perpetrators of the espionage of Timor-Lesinvolve breaches of the law they are liable to attract the con- te were not pursued, but instead it was both the sequences that ordinarily from breaches of the law.7 whistleblower that surfaced these issues and his In that case, the Commonwealth hired individu- former lawyer, who faced legal jeopardy.10 Mr als to undertake training exercises with ASIS. One Wilkie has mentioned that the actions of the Attorcondition of employment was that the Common- ney-General in consenting to the charges against wealth would ensure the identities of the individ- Witness K and Mr Collaery, made Australia resemble a ‘pre-police state, where instead of a exercises included activities which otherwise would royal commission they lock up people who more be criminal and resultingly, the State Govern- likely deserve the Order of Australia.’11 ment of Victoria requested the Commonwealth to The conduct of the Attorney-General and the disclose the identities of persons involved so as charges against Mr Collaery has worried many to allow for prosecution at the state level. In reaching the High Court, it was argued that the uments included documents under legal privilege, Commonwealth must be restrained by virtue of the 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 our own where truth is never shown except for its

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 sation (online), 20 July 2018 <https://theconversation.com/ on-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 Prosecution’, John Menadue (online), 6 July 2018 < https:// johnmenadue.com/spencer-zifcak-the-attorney-general-theprosecution/>.

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

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.

T

he stories sprouting from our banking, su-

Why it took a $75 million inquiry, which has 6 to

The royal commission intended to serve as both a services industry is more joke than riddle. More

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 2 In April, public blood – which had already started clotting – reached boiling point when it emerged that 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

believed the commission wasn’t necessary. In the 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’. 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

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’, 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

Financial Review (Melbourne).

12. Above n 5.

13. ASIC, ‘Westpac admits to breaching responsible lending obligations when providing home loans and a $35 million

Conclusion 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

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 with it, how company identities are empowered oligopolistic market where standards of behaviour by their boards and wider-industry.14 And, while are uniformly bad’.19 The centrality of the industry regulators can oversee structure, they are not positioned or resourced to ‘directly regulate times be low. Nevertheless, now that the public culture, values, attitudes of behaviour’.15 The has insight into the culture and activities behind reality of corporate culture is that it refers to closed doors, the hope is that these institutions practice norms.16 It is about ‘how the mob operates’.17 are prompted to self-correct.

Accordingly, the impetus to react and change

2. Ibid.

3. Stephanie Chalmers, ‘Banking royal commission: AMP continues to charge dead customers life insurance premi-

-

4. Amy Braddon and Narelle Hooper, We need to talk about Company Directors https://aicd.companydirectors.com.au/ tions/june/royal-commission.

5. Daniel Ziffer, ‘Banking royal commission: Fees for the dead and cash bribes — the greatest shocks (so far)’, ABC 6. Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (14 September default.aspx.

7. David Gallagher, ‘Seven lessons we’ve learnt from the royal commission’, The Australian Financial Review (Melbourne),

responsible-lending-obligations-when-providing-home-loansand-a-35-million-civil-penalty/; Clancy Yeats, ‘Westpac hit with record $35m penalty over home loan breaches’, The 14. Bruce Posner, ‘Don’t Give Up on Corporate Culture’ 15. Paul Cox, ‘An empirical investigation into the corporate 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). rate culture’ (2014) 1 American Banker 1.

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

(2016) 73(5) The Lamp 22.

9. Amanda Hooton, ‘Why good people do bad things’, The 10. Ibid.

11. James Frost, ‘Banking royal commission: ClearView targeted poor people with low quality products’, The Australian

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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.

W

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 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 NSW The Cth Bill, introduced to the House of Repre- Separately, the NSW Parliament has already passed sentatives, predominantly seeks to establish a mod- its own bill, which received royal Assent on 27 June 2018.4 The NSW Act, although similar in name and 3,000 large companies. From commencement, any form to its Commonwealth counterpart, introduces Australian companies or foreign entities conducting business within Australia with an annual revenue for compliance. Businesses with an annual revenue over $100 million (AUD) will be required to pub- of over $50 million will now fall within the scope of lish a yearly statement on actions taken to address the Act and will be obliged to comply with modern any traces of modern slavery existing in their sup- slavery reporting requirements once the Act comply chain and operations.2 These Modern Slavery mences. statements will then be collected in a central, public repository maintained by the Minister for Home the business’ supply chain, any due diligence steps/ 3 procedures undertaken as a response to instances

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of modern slavery and any modern slavery training 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 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

Penalties Whilst peak industry bodies such as the Law Council of Australia and the Property Council of Australia 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 cerns 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 companies that fail to prepare/publish a modern slavery statement7 and those who knowingly provide false and misleading information in their statement.8 The NSW Act also introduces a ‘modern slavery risk order’ which empowers Courts to make prohibitive orders on those that have been convicted of 9 Breaching such an orequivalent of two years imprisonment or 500 penalty units.10

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 this issue is hoped to be resolved in further amendments to the Cth Bill, enforceability must be addressed if the modern slavery legislation in Australia is to operate successfully.

1. New South Wales, Parliamentary Debates, Legislative Assembly, 6 June 2018, 77-79 (Gladys Berejiklian, Premier).

2. Modern Slavery Bill 2018 (Cth) cl 11-16.

3. Ibid, cl 18.

4. Modern Slavery Act 2018 (NSW).

5. Public Works and Procurement Act 1912 (NSW), s 175(3).

6. FTI Consulting, Modern Slavery Update: Federal Legislation introduced in the House of Representatives (July 2018) < insights/articles/modern-slavery-update.pdf>.

7. Modern Slavery Act 2018 (NSW) s 24(2).

8. Ibid s 24(7).

9. Ibid s 29(1).

10. Ibid s 29.

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Law, Power, and People’s Right to Protest James Downie

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

I

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 of-

‘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 ernance, 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 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 represmechanisms of accountability are prompted.

This is also echoed in the Kent State University shootings of 1970, where 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 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’.

“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 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 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 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

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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

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

a right.34 United Nation Obligations of ICCPR it may have been given weight in popular media but there inherently destructive in nature. While they can are relatively minor penalties for breaching these remove those in power, and empower the people it obligations, in fact Australia has done this multiple can also leave the nation-state in an overall worse times with Refugees and sees little consequence.35 Self-imposed Restrictions such as s200 of position.’

LEPRA but Parliament can simply amend it,36 which is exactly what they have done.37

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

The Constitution The Constitution does not have an explicit freestanding right to protest. 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

publicly objecting to the proposed legislation and the implied freedom of political communication in three United Nations Special Rapporteurs urging 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. 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 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 someful 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 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, 2. Ourdocuments, Transcript of Gettysburg Address <https://www.ourdocuments.gov/doc.php?3. Right to Protest, Why The Right To Protest < https://right-to-protest.org/debate-protest-rights/ 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 6. Ibid; Governor-General of the Commonwealth of Australia, Governor-General’s Role (13 June 2017) 7. Kathrin Fahlenbrach, March Klimke and Joachim Scharloth (eds), Protest Cultures: A Companion (Berghahn Books, 2016) 462-71.

9. Ibid.

10. United States Constitution amend I; Canada Act 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 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:// 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. <https://www.history.com/topics/kent-state-shoot19. abc NEWS, ‘Terror in Tiananmen Square’, abc abcnews.go.com/International/video/terror-tianan20. 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 22. Yuriy Shveda and Joung Ho Park, ‘Ukraine’s revolution of dignity: The dynamics of Euromaidan’

ability’ (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_ generally Cynthia Buckley et al, The War in Ukraine is more devastating than you know ( 9 April 2017) The Washington Post <https://www.washingtonpost. ukraine-is-more-devastating-than-you-know/?nore29. Australian Human Rights Commission, Freedom of Information, opinion and expression <https:// www.humanrights.gov.au/freedom-information-opin30. Museum of Australian Democracy Old Parliament House, Australian democracy: an overview <https://www.moadoph.gov.au/democracy/austra31. 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

protesters (19 October 2017) The Conversation < https://theconversation.com/bob-brown-wins-hiscase-but-high-court-leaves-the-door-open-to-laws43. Mary Heath and Peter Burdon ‘Protest and Political Communication after Brown v Tasmania’ lia) 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 <https://www.parliament.nsw.gov.au/researchpapers/ Documents/The%20High%20Court%27s%20deci46. 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.

History (27 January 2017) Museum of Australian Democracy Old Parliament House < https://www.

49. The Sydney Morning Herald, Howard rejects Global protests (17 February 2003) <https://www. smh.com.au/national/howard-rejects-global-pro50. Heath and Burdon, above n 43, 11.

51. Frank Edwards, Phillip N. Howard and Mary (Research Project, November 2013) 4.

52. Kate Samuelson, Harvey Weinstein Arrested on Charges of Rape, Sex abuse and More’ (25 -

Parliamentary Research Service, June 2015), 37.

34. Steven Rares, ‘Legality, rights and statutory 53. Yochai Benkler, ‘The Role of the Network Public interpretation’ (Paper presented at AGS Administra- Sphere in the U.S. Net Neutrality Policy Debate’ tive Law Conference, Canberra, 20-21 June 2013) 22. (Research Report, University of Pennsylvania, 2015) 35. Australian Human Rights Commission, ‘Snapshot 13.

Report 2nd ed, Australian Human Rights Commis54. Scilla Alecci, Former Pakistan PM Sharif sion, March 2017) 10-2.

Sentenced to 10 Years over Panama Papers (6 July 36. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 200.

Journalists < https://www.icij.org/investigations/pan37. Inclosed Lands, Crimes and Law Enforcement ama-papers/former-pakistan-pm-sharif-sentencedLegislation Amendment (Interference) Act 2016 (NSW) s 200(3).

55. Yochai Benkler, ‘A public Accountability Defense for National Security Leakers and Whistle-blowers’ 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-struc41. [2017] HCA 43; Amelia Simpson ‘Brown v Tasmania: High court delivers a win for protesters’ 42. Brendan Gogarty, Bob Brown wins his case, but High Court leaves the door open to laws targeting

search for justice in China’ (2013) 17(7) Journal of 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-inChecking the Final Presidential Debate (20 October 2016) FactCheck.Org < https://www.factcheck.

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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

ination 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. 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

as being labelled a trouble maker, being ostracized, victimized or ignored by colleagues’, the Commissioner said.

Ms Jenkins said submissions to the inquiry would 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 ‘More than 30 years on from the introduction 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. 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’.

1. Australian Broadcasting Corporation, What is the #MeToo campaign?, (17 October 2017) <http://www.abc.net.au/ 2. Australian Human Rights Commission, ‘National Inquiry into sexual harassment in Australian workplaces’ (Media Remedia-releases/national-inquiry-sexual-harassment-austra3. Australian Human Rights Commission, ‘Submissions to the National Inquiry into sexual harassment in Australian https://www.humanrights.gov.au/news/media-releases/ submissions-national-inquiry-sexual-harassment-australi4. Australian Human Rights Commission, National Inquiry Into Sexual Harassment in Australian Workplaces (9 July crimination/projects/national-inquiry-sexual-harassment-aus5. Ibid.

6. Ibid.

7. Ibid.

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 ‘There is enormous international interest in the work we are 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.

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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