UTS LSS The Full Bench 2025: Out of Bounds

OUT of BOUNDS

Acknowledgements

Editor-in-Chief

William Staber, Education (Publications) Director

Designed By Judith Tan Design

Special Thanks

Nipun Kar, UTS LSS President

Rosalia Bautista, UTS LSS Vice-President (Education)

Education Subcommittee

Jacqueline Ciofani

Aditi Devkota

Rionah Gonsalves

Alisha Pillay

Liana Lalsingh

Kate Nicolls

The Full Bench is published by the UTS Law Students’ Society.

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All expressions of opinion published in The Full Bench are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

Acknowledgement of People and Country

The UTS LSS acknowledges the Gadigal People of the Eora Nation, the Boorooberongal people of the Dharug Nation, the Bidiagal people and the Gamaygal people upon whose ancestral lands our university 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 lands.

In This Volume

02

Acknowledgements

08

From Enchanted to Exorbitant: How the Ticketing Crisis is Diminishing Live Music Magic

06 President’s Address

07 Education (Publication) Director’s Address

12 A Double-Edged Sword: Freedom of Speech and the Law

15

Exporting Sovereignty: The Globalisation of the ‘Australia Model’ and its Clash with International Obligations

29Regulating Digital Platforms:

Australia’s Regulatory Reform in Light of the EU Model

32 Eureka!

Australia’s AntiUnionism and the Swedish Model

27 Redrawing Regulatory Frontiers:

Australia’s Leap into Mandatory Merger Regime and Its Implications for Competition Policy

18 Balancing Act: Hate Speech and Free Speech in the Social Media Age

35 An Approach to Analysing the Feasibility of Applying Norwegian Prison Policies in Australia

24 Reforming Australian Privacy Law: Lessons from the United Kingdom’s RightsBased Model

21 The Man Behind the Curtain: Attribution in the Digital Age

President’s Address

Welcome to The Full Bench publication for 2025!

This year, the UTS Law Students’ Society explores an insightful theme that takes us Out of Bounds! It is an invitation to look beyond the Australian legal system as we know it and explore what lies beyond. We want to encourage everyone to open themselves up to fresh perspectives, consider bold reforms, and embrace the kind of creative legal thinking that drives meaningful change.

The publication welcomes inspiration and reflection of other legal jurisdictions from around the world. By broadening perspectives, we want to encourage readers to question: what changes could be appropriate in Australia? How could we adapt the ideas to work here? What could we gain (or lose) from stepping Out of Bounds?

This edition of The Full Bench brings together contributions that put forth ideas that are ambitious and innovative, and strives for real, positive change to our legal system. Every article engages a view that truly tests the boundaries.

On behalf of the UTS Law Students’ Society, I want to express my gratitude to all our contributors, the incredible designer, and of course, our passionate Education Portfolio. The exceptional quality of this publication is a true testament to the efforts of each and every individual involved, and it is deeply appreciated.

I hope you all gain meaningful insights and enjoyment from this thought-provoking publication!

Nipun Kar

Director’s Address

It’s with great pleasure that I welcome you to

The Full Bench 2025: Out of Bounds

Out of Bounds is a collection of thirteen student essays which provide unique outlooks on key battlegrounds of domestic and international law. These writers took on the challenge of critiquing an area of law against approaches taken from all across the globe.

From free speech to dynamic pricing to digital platforms and more, this edition is filled front to back with thought-provoking pieces that stood out from the rest.

Often while navigating the complexities of our own legal system, we can forget to look around for inspiration. We must continually explore and understand the limits and strengths of Australia’s legal infrastructure, doing what we can to develop it wherever possible.

I encourage you to consider, critique and form your own opinions on these issues. None of them are straightforward, all of them are important.

Finally, I would like to give sincere thanks to all of the contributors for their hard work and their time investment. They have produced a series of quality, insightful pieces. I would like to extend my thanks to the Education (Publications) Subcommittee and our brilliant designer Judith Tan. A particular special thanks must go to Rosalia Bautista (Education Vice-President) for her unwavering support and commitment to this project. Finally, thanks must go to Nipun Kar (President) for his continued leadership.

Enjoy!

William Staber

From Enchanted to Exorbitant:

How the Ticketing Crisis is Diminishing Live Music Magic

by ARIELLA TRACTON

I. OPENING ACT: THE ‘ANTI-HERO’

In 1964, Australians paid just $3.70 (approximately $63 today) to see the legendary Beatles perform, a price that reflects the once-affordable nature of live music.1 Fast forward to today, and ticket prices have soared alongside the growing demand for live performances, particularly in the aftermath of the COVID-19 pandemic.2 Monopolistic giants like Live NationTicketmaster, which now controls over 80% of the live concert ticketing market, utilise dynamic pricing, where ticket costs surge in response to demand.3 Ticketing, which was once a supplementary income stream for artists has now become a primary source of revenue, marking a shift in the music industry.4

The commercialisation of live music has distanced it from its roots of community and accessibility. As market power

consolidates under these entities, rising prices alienate many fans, turning concerts from shared cultural experiences into exclusive, unaffordable commodities.5 This trend undermines the essence of live music and risks turning what should be a universal celebration into a privilege for a few. This article explores monopolisation, market power and consumer rights within the live concert ticketing market, using the Taylor Swift Eras Tour as a case study and proposing reforms through a comparative US and Australia legal approach.

1 Australian Bureau of Statistics, What Changes in Prices and Their Collection Tell Us About Australia (23 March 2025) <https://www.abs.gov.au/articles/what-changes-pricesand-their-collection-tell-us-about-australia#:~:text=It%20is%20even%20more%20 difficult,concert%20cost%20up%20to%20$1%2C249.90>.

2 Avani Dias et al, ‘They Have No Loyalty to Australia’: Peter Garrett Demands Action as Global Music Giant Impacts Local Industry (28 October 2024) ABC News <https://www.abc.net. au/news/2024-10-14/live-nation-hidden-fees-in-tickets-four-corners/104357146>.

3 Archita Arun, ‘Ticketmaster’s Monopoly Undermines Fair Competition in Live Entertainment Ticketing’ (2024) 9 Journal of Business and Economic Development 128, 130.

4 Xiaorui Guo, ‘The Evolution of the Music Industry in the Digital Age: From Records to Streaming’ (2023) 5(1) Journal of Sociology and Ethnology 7, 13.

5 Ibid 10.

II. THE ILLUSION OF CHOICE: WHO’S

‘THE MAN’?

In 2010, the U.S. Department of Justice (DOJ) approved the merger between Live Nation, a leader in live music production, promotion, and venue operation, and Ticketmaster, the dominant player in primary ticketing and artist management.6 The DOJ expressed concerns that the merger would undermine competition in the primary ticketing market, given Ticketmaster’s dominance and Live Nation’s growing influence.7 Addressing this, the DOJ imposed a settlement with structural and behavioural remedies, such as anti-retaliation clauses designed to maintain competition and prevent anti-competitive practices within the live music concert ticketing market.8 Despite these safeguards, Live Nation-Ticketmaster has continued to exert overwhelming market power, stifling competition and limiting consumer choice.9

In addition to consolidating market control, transparency for consumers has deteriorated, with ticket buyers left in the dark about the true cost of their purchases. This often manifests through the addition of substantial and often unexpected service

fees, processing fees and facility fees that are only revealed late in the purchasing process.10 These practices raise serious concerns under U.S. antitrust law, particularly in the prohibition of monopolisation and attempts to monopolise trade.11 Its continued dominance suggests that previous remedies have been insufficient to address monopolistic behavior. This situation underscores a larger issue in U.S. antitrust enforcement: whether regulators are equipped to address modern forms of monopolistic conduct in platform-driven industries. Ultimately, the illusion of choice has left consumers with limited options and unclear pricing, with many paying the price without fully understanding why.

6 U.S. Department of Justice, ‘Justice Department Sues Live Nation-Ticketmaster for Monopolizing Markets Across the Live Concert Industry’ (Press Release, 23 May 2024) <https://www.justice.gov/opa/ pr/justice-department-sues-live-nation-ticketmaster-monopolizing-markets-across-live-concert>.

7 Arno van der Hoeven and Erik Hitters, ‘The Social and Cultural Values of Live Music: Sustaining Urban Live Music Ecologies’ (2019) 90 Cities 26.

8 Ibid.

9 Kristin Lieb, ‘Why the US Government Is Trying to Break Up Live Nation Entertainment: A Music Industry Scholar Explains’ (The Conversation, 24 May 2024) <https://theconversation.com/why-the-usgovernment-is-trying-to-break-up-live-nation-entertainment-a-music-industry-scholar-explains-230832>.

10 Ibid.

11 Sherman Antitrust Act of 1890, 15 USC §§ 1–7, § 2 (1890).

III. CASE STUDY: ERAS TOUR TICKETING SAGA

In 2022, Taylor Swift’s Eras Tour sparked a ticketing crisis that exposed deep systemic flaws in the live events industry. When tickets were released via Ticketmaster, unprecedented demand caused the platform to crash within an hour, revealing significant operational failures despite its dominant market position. Critics argue that Ticketmaster’s anticompetitive practices stifle innovation, disincentivising necessary improvements to operations and platforms.12 Ticketmaster’s failure to meet demand during the Taylor Swift Eras Tour led to long waits, bots buying tickets, and dynamic pricing issues, leaving millions frustrated. Despite promises to prioritise verified fans, scalpers exploited weak safeguards to bulk-buy tickets and resell them at inflated

prices on Ticketmaster’s secondary platform.13 Meanwhile, VIP packages sold directly by Ticketmaster reached $1249.90, fueling outrage over the lack of transparency and fairness.14

In response, over 30 state attorneys general joined the DOJ in suing Live Nation-Ticketmaster for monopolistic practices.15 The DOJ’s claims include acquiring smaller promoters, locking venues into exclusive contracts, and restricting rival ticketing services.16 The DOJ is seeking structural remedies, including a potential breakup of the 2010 merger.17 At the heart of the case lies the consumer welfare standard, which advocates for fair prices, choice and innovation in products and sales platforms.18 The consequences of such monopolistic control are felt globally, with Australia facing similar challenges in its

own ticketing markets. Ticketmaster’s dominance in the Australian market has led to limited competition, with fans often locked out of fair access to tickets, mirroring the issues seen during the Eras Tour ticketing saga.19 The Eras Tour ticketing crisis underscores the dangers of unchecked corporate power in digital marketplaces and the need for regulatory reform to restore fairness.

12 Samantha Gastelum, ‘The Ticketmaster and Live Nation Merger: Why They Should Have Never Ever Been Together’ (2024) 65(1) Boston College Law Review 205, 212.

13 Ibid 213.

14 Nishka Dhawan, ‘How to Buy Taylor Swift Tickets: Eras Tour Dates and Prices Compared’ (Business Insider, 13 December 2023) <https://www.businessinsider.com/guides/streaming/how-to-buy-taylor-swifttour-tickets-concert-prices-compared>.

15 U.S. and Plaintiff States v Live Nation Entertainment, Inc and Ticketmaster L.L.C. (No 2:23-cv-01114, C.D. Cal, filed 23 May 2024).

16 Christine A Varney., The Ticketmaster/Live Nation Merger Review and Consent Decree in Perspective (Speech, U.S. Department of Justice, 10 June 2010) <https://www.justice.gov/atr/speech/ticketmasterlive-nationmerger-review-and-consent-decree-perspective>.

17 Ibid.

18 Economic Liberties, ‘How Antitrust Enforcers Helped Create a Live Events Monster’ <https://www. economicliberties.us/our-work/how-antitrust-enforcers-helped-create-a-live-events-monster/>.

IV. SMOKE

AND MIRRORS: IS THE SYSTEM ‘…READY FOR IT?’

Live music remains a vital cultural activity in Australia, with nearly half of Australians aged 15 and over attending annually.20 While ticket revenue between 2022 and 2023 surpassed pre-pandemic levels, consumer dissatisfaction has surged due to hidden fees including service, booking, infrastructure, and transaction charges that appear late in the purchasing process.21 These unlisted costs inflate ticket prices and violate Australian Consumer Law, which prohibits misleading conduct.22 The Australian Competition and Consumer Commission (ACCC) has underscored the need for increased transparency in ticketing practices.23 The ACCC previously acted against Ticketek, fining the company $2.5 million in 2011 for blocking competitor Lasttix to maintain its market dominance.24 In response to ongoing issues, a March 2025 House of

Representatives report recommends clearly itemising all ticket-related fees and amending consumer law to enhance transparency.25 These reforms could serve as a model for U.S. regulators, emphasising the need to tackle anti-competitive behavior and ensure fair access to live music.

19 Creative Australia, Music Factsheet: Creating Value — Results of the National Arts Participation Survey (August 2024) 1.

20 Ibid 2.

21 Paul Crosby, ‘Why Are Taylor Swift Tickets so Hard to Get? The Economics Are Complicated’ The Conversation (18 November 2024) <https://theconversation.com/why-are-taylor-swift-tickets-so-hard-toget-the-economics-are-complicated-208567>.

22 Competition and Consumer Law Act 2010 (Cth) s 18.

23 Australian Competition and Consumer Commission, ‘Ticketek Pty Ltd Penalised $2.5 Million for Misusing Its Market Power’ (Media Release, 22 December 2011) <https://www.accc.gov.au/mediarelease/ticketek-pty-ltd-penalised-25-million-for-misusing-its-market-power>.

24 ACCC v Ticketek Pty Ltd [2011] FCA 1489.

25 Australian Government, House of Representatives Standing Committee on Communications and the Arts, Live Music Industry in Australia: Inquiry Report (March 2025) Am I Ever Gonna See You Live Again? 67.

V. CLOSING ACT:

‘LONG LIVE’ (FAIR ACCESS TO LIVE MUSIC)

The live music industry undeniably enriches our society, fostering inclusivity, creativity, and social cohesion.26 However, the Eras Tour ticketing saga underscores a troubling reality. Despite the cultural significance of live music, the current ticketing system often undermines these very values. Consumers continue to face inflated fees, limited access to face-value tickets and opaque pricing structures, highlighting the urgent need for fairness and transparency. Both regulatory concerns and past legal actions in the U.S. and Australia make clear that stronger consumer protections are crucial. The House of Representatives Report, with over twenty critical recommendations, offers a roadmap for significant reform, offering measures that would

vastly improve fairness and transparency in ticketing practices.27 While policymakers play a key role in proposing and enacting these reforms, the collective power of consumers can drive meaningful change.28 The inequities of the current ticketing system are something fans still remember All Too Well, including the frustration of soaring prices, the battle against bots and the overwhelming sense of being priced out of life changing experiences that should be accessible to everyone.

27

28

26 Fabian Holt, ‘The Economy of Live Music in the Digital Age’ (2010) 13 European Journal of Cultural Studies 243, 245.

House of Representatives Standing Committee on Communications and the Arts (n 4) 41-71.

Julie Barfuss v Live Nation Entertainment, Inc (No 2:23-cv-01114, U.S. District Court for the Central District of California, 2023); United States of America v Live Nation Entertainment, Inc (No 1:24-cv-03973, S.D. New York, 2024).

A DoubleEdged Sword: Freedom

of Speech and the Law

by LUKA GONANO

Introduction

The notion of freedom of speech is pivotal to a functioning democracy and society.

Discussion surrounding this issue has been lengthy, with the law’s responsiveness to speech protections revealing immense complexity, especially in Australia. Federally, Australia does not have an enshrined document upholding this foundational right, unlike other Western democracies with a respective Bill of Rights.1 Presently, common law has developed this right regarding an implied freedom of political communication in the Constitution, with some states enshrining free speech legislation.2 My article seeks to examine the contentious nature of free speech in Australia and its connection to global attitudes towards this foundational right. I will also utilise an example of a relegated space that exercises significant free speech liberties, through London’s ‘Speaker’s Corner’ at Hyde Park.

The Law and Free Speech

The United Nations (UN) protects freedom of expression through multiple instruments, which Australia has ratified. ‘Freedom of expression and

opinion’3 and a ‘right to hold opinions without interference’4 are safeguarded by international law. A special rapporteur also assesses the state of free expression across signatory nations. The United States efficaciously protects free speech, restricting Congress from ‘abridging the freedom of speech’.5 Additionally, Europe, Africa and the Americas uphold free speech with their respective documents.6 Globally, Australia trails behind concerning free speech, being the only Western democracy lacking a Bill of Rights.7 Australia’s human rights framework has been investigated through a parliamentary committee inquiry, also analysing freedom of expression,8 presenting 17 recommendations to improve human rights in Australia.9

Australia’s Constitution does not protect free speech expressly. The right to vote,10 protection of acquisition of property on unjust terms,11 trial by jury,12 freedom of religion13 and prohibition of discrimination based on state residency14 are all rights protected explicitly. On the state level, Victoria, Queensland and the Australian 1

7

5

6

4

3

9

10

11

12

13

14

Capital Territory enshrine free expression through charters of rights.15 Freedom of speech is embodied through an implied right, primarily for political communication. Therefore, common law and statutes regulate free expression in Australia, fulfilling UN guidelines by ensuring domestic implementation of Article 19.16

Case law has ascertained that free speech is not a ‘right’ in common law, rather a residual liberty ‘subject only to the provisions of the law’.17 Freedom of political communication implied by the Constitution has been recognised in common law.18 Lange set a vital benchmark for political communication, affirming it not merely as a facet of representative democracy, but an implied constitutional right. The case also established a two-limb test which needs to be satisfied to determine if laws:

1. ‘burden’ political communication and;

2. were ‘appropriate’ and serve a legitimate end for maintaining representative government.19

Subsequent cases have refined this test and built upon Lange. In Coleman v Power20, the second limb was modified to consider ‘proportionality’,21 whilst Victoria v Levy22 expanded communication protections for non-verbal conduct.23 At present, free speech in Australia is vulnerable to modification, which will be discussed further regarding hate speech and misinformation.

Regulations and Balance

Free speech has been subject to curtailments worldwide, through the prohibition against violent and hateful speech. Internationally,

15 George Williams, ‘Protecting Freedom of Speech in Australia’ (2014) 39(4) Alternative Law Journal 217, 218.

16 Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, 102nd sess, UN Doc CCPR/C/GC/34 (29 July 2011) [7]–[8].

17 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (‘Lange’).

18 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 [25] (Mason CJ); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 [23]–[24] (Brennan J), [6] (Deane and Toohey JJ).

19 Lange (n 17) 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

20 (2004) 220 CLR 1.

21 Ibid [235]–[236] (Kirby J, Gummow, Hayne and McHugh JJ agreeing).

22 (1997) 189 CLR 579.

23 Ibid 595 (Brennan CJ).

24 Brian Leiter, ‘The Case against Free Speech’ (2016) 38(4) Sydney Law Review 407, 409–411.

25 ICCPR (n 4) art 19(3).

it is not absolute, even within the US.24 The ICCPR, for instance, enables ‘certain restrictions’ for free expression.25 Further, Australia is signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, 26 ratified in the Racial Discrimination Act 1975 (Cth).27 Specifically, Section 18C prohibits behaviour that can reasonably ‘offend, insult, humiliate or intimidate another person or a group of people’,28 often due to ‘race, colour or national or ethnic origin’.29 Moreover, a reported rise in antisemitic attacks and online radicalisation has prompted new state and federal laws on hate speech, adding greater pressure to this Australian liberty.30

Common law has sought a balance between free speech and the Racial Discrimination Act, upholding implied free communication whilst seeking an end to discrimination.31 Eatock v Bolt32 sparked significant controversy around free speech and hate speech. Bromberg J found Andrew Bolt had written articles motivated by ‘race, colour or ethnic origin’,33 and rejected the RDA exemption of ‘good faith’,34 considering the articles ‘distortions of the truth’.35 Amidst noticeable developments in common law which favour hate speech protections, conversations about perceived limitations on political speech has produced tension.36

Concerns have also been raised over online safety and the growing issue of ‘misinformation’.37 The notorious rise of AI and increasing distrust in institutions by the wider public has motivated calls for cracking down on ‘fake news’. Principally, insecurity of information amidst election periods has facilitated greater discussion around laws that curate content.38 This comes as a lack of whistleblower protections, defamation laws

26 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

27 Racial Discrimination Act 1975 (Cth) (‘RDA’).

28 Ibid s 18C(1)(a).

29 Ibid (1)(b).

30 Australian Human Rights Commission, ‘Explainer: New national and NSW hate crime laws’ (19 February 2025) <https://humanrights. gov.au/about/news/explainer-new-national-andnsw-hate-crime laws>.

31 Jones v Scully [2002] FCA 1080 [240].

32 [2011] FCA 1103 (‘Bolt’).

33 Ibid [327].

34 RDA (n 27) s 18D.

35 Bolt (n 32) [8].

36 Anthony Gray, ‘Racial Vilification and Freedom of Speech in Australia and Elsewhere’ (2012) 41(2) Common Law Law Review 167, 183.

37 Lorraine Finlay, ‘Protecting Free Speech Doesn’t Mean Dismissing Online Safety’ Australian Human Rights Commission (online, 29 April 2024).

38 Leslie Gielow Jacobs, ‘Freedom of Speech and Regulation of Fake News’ (2022) 70(1) American Journal of Comparative Law 278, 292–293.

that persecute free speech and offensive language provisions, have been criticised in media.39

Governmental inquiries40 and law groups have affirmed that freedom of speech is intrinsic to Australian democracy,41 complicating calls to add further burdens on speech liberties. Consequently, Australia should look to other places where free speech and regulation seem harmonised.

Case Study — Speaker’s Corner

In the United Kingdom, Hyde Park’s ‘Speakers’ Corner’ has been a hallmark for free expression for over a century. The space became a point of assembly for protesters by the 1860s, however the tradition of bringing placards, speeches on radical ideas like Marxism and heckling became a prominent feature that has remained ubiquitous even today.42 been utilised to expound a myriad of ideas, controversial and outright insulting. The space at Hyde Park was codified into law, despite not incorporating the term ‘free speech’ directly.43 Gradually, it developed and encompassed greater exercise of free expression, resonating a ‘populist, democratic image’.44 Over time, the conversations have been highly religious, departing from the multitude of political topics once debated. Online, Speaker’s Corner is filled with videos and religious commentary from Christians and Muslims. Violence has also been wrought, for instance against those considered Islamophobic.45 Yet, the space has withstood such trials and tribulations.

Speaker’s Corner has also been tested by British common law. Per Redmond-Bate v DPP, 46 The Court declared Speaker’s Corner as upholding ‘the irritating, contentious, eccentric’ nature of free speech, extending legal tolerance ‘to opinion of every kind as expected by the law.47 This was grounded in the European Convention on Human Rights, of which the UK remains a signatory.48 However, Australia’s lack of such absolute legislation for free speech renders our own Speaker’s Corner in The Domain much less prominent.

Inheriting the traditions and practices of Britain via colonialism, Sydney’s respective Speaker’s Corner is

39 Paul Farrell, ‘Beyond 18C: six barriers to freedom of speech in Australia’, The Guardian, (online, 7 November 2016) <https://www. theguardian.com/world/2016/nov/07/beyond18c-six-barriers-to-freedom of-speech-inaustralia>.

40 Traditional Rights and Freedoms (n 7) 77–78.

41 Kristen Connell, ‘Freedom of expression crucial to democracy’ (Media Release, 1 October 2024).

located at The Domain, though delegated as a ‘designated space’, every Sunday from 2pm to 5pm.49 Public gatherings are permitted, though with thorough regulations, including time50 and causing noise.51 The corner once accommodated immense crowds, especially with young people, profoundly interested in contentious topics being debated and preached.52 Despite this, The Domain is less protected regarding free expression. Moreover, the space is not particularly well known. Thus, a revival in interest, modelled on London’s Speaker’s Corner, could be a viable solution within Australia’s free speech context.

Conclusion

Free speech in Australia retains an implied status via political communication. Compared to other nations, Australia’s speech protections, in the search for balance, seem more marginalised even with the interpretations supplied through common law. Perhaps turning to London’s Speaker’s Corner may provide insights for freedom of speech and revitalise our own Domain corner. Yet, this is subject to whether a Charter of Rights is seriously considered, state-wide or federally.

43 Parks Regulation Act 1872 (UK).

44 John Michael Roberts, ‘The Enigma of Free Speech: Speakers’ Corner, The Geography of Governance and a Crisis of Rationality’ (2000) 9(2) Social and Legal Studies 271, 272.

45 James W Kelly, ‘Speakers’ Corner: Edward Little

42 John Michael Roberts, ‘Assemblies, Coalitions, and Convicts Over Free Speech: From “Trespass” to “Encroachment” in Urban Space at Hyde Park, London, 1861–1962’ (2023) 55(3) Antipode 916, 921– 922.

jailed over Hyde Park gun attack plot’ British Broadcasting Corporation (online, 16 December 2023) <https://www.bbc.com/news/uk-englandlondon 67730535>.

46 [1999] EWHC Admin 733.

47 Ibid [20] (Sedley LJ, Collins J agreeing).

48 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 10.

49 Royal Botanic Gardens and Domain Trust Regulation 2020 (NSW) cl 8.

50 Ibid cl 30(2)(b).

51 Ibid cl 31.

52 ‘History of Speakers’ Corner’, Soapbox Speakers — Speaker’s Corner, Sydney (Blog Post) <https:// soapboxspeakers.wordpress.com/the-history-ofspeakers-corner/>.

Exporting Sovereignty:

The Globalisation of the ‘Australia Model’ and its Clash with International Obligations

by BETHANY KELLY

I. Introduction

In January 2025, US President Donald Trump signed an executive order declaring that the US will be expanding Guantanamo Bay, Cuba, to include ‘additional detention space’ for ‘criminal’ immigrants. In this expansion, Trump seeks to hold up to 30,000 ‘illegal aliens’ in Guantanamo Bay who have been detained from within U.S. sovereign borders — a substantial shift from previous policy which saw limited migrants held in Guantanamo Bay’s Migrant Operations Centre after being intercepted at sea.

The offshore detainment of immigrants is condemned, but not new.

Australia’s immigration model, often referred to as the ‘Australia Model’ as coined by Scarpello (2019), represents one of the most controversial

1 Scarpello, F. (2019). The “Australian model” and its long-term consequences. Reflections on Europe. Global Af airs, 5(3), 221–233. https://doi-org. ezproxy.lib.uts.edu.au/10.1080/23340460.2019.1 697629 (“Scarpello (2019)”).

2 Commonwealth of Australia, Chapter 10 — Pacific Solution: Negotiations and Agreements, A Certain Maritime Incident (October, 2002), para. 10.1 (“A Certain Maritime Incident”).

frameworks for externalising asylum processing.1 Initially developed through legislative reform in 2001 and 2013, this model’s cornerstone is the transfer of asylum seekers to offshore processing centres in third countries such as Nauru and Papua New Guinea (PNG).2 These reforms, including the Pacific Solution and Operation Sovereign Borders, assert sovereignty as the ultimate rationale for circumventing international obligations, promoting national security, and deterring unauthorised arrivals.3

This paper examines the growing global adoption of the ‘Australia Model’ and highlights the inherent tension between such policies and states’ international obligations, such as the 1951 Refugee Convention.4 As more Western nations look to emulate Australia’s legal architecture and enforcement tactics, the implications for refugee rights and the broader legitimacy of international humanitarian law become increasingly dire.

3 Ann Martin, C. (2025). Protecting National Sovereignty: The ‘Australian Model’ and the Exclusion of Asylum Seekers. Sociology, 59(1), 3-20. <https://doi.org/10.1177/00380385241258 954>.

4 Convention Relating to the Status of Refugees, opened for signature 28 July 1951 (entered into force 22 April 1954) (“Refugee Convention 1951”).

II. Australia’s Externalisation Policy

The ‘Australia Model’ is built on legislative innovations within the Migration Act 1958 (Cth) (“The Act”).5 Through reforms in 2001 and 2013, Australia excised territories like Christmas and Ashmore Islands from its migration zone, effectively creating zones within its territory that were no longer subject to regular asylum procedures.6 This allowed asylum seekers intercepted in these areas to be labelled as ‘unauthorised maritime arrivals’ under s 5AA, a designation that strips them of the legal capacity to apply for protection under Australian law.7

These reforms introduced the power to transfer asylum seekers to designated “regional processing countries”, justified by national interest under sections such as 198AB and 198AD.8 Notably, such designation is entirely at the discretion of the Immigration Minister, with limited judicial oversight and no requirement for binding assurances of compliance with human rights standards from host countries.9 Consequently, Australia effectively distances itself from legal responsibility for human rights violations occurring within these offshore centres.10

Division 8 of the Migration Act 1958 (Cth) provides the legal basis for Australia's offshore immigration processing regime.11 It outlines the powers granted to the Minister for Immigration and immigration officers to detain and transfer “unlawful non-citizens” to designated regional processing countries.12

Reforms in 2001 introduced the concept of excised offshore places — territories like Christmas, Ashmore, and the

5 Migration Act 1958 (Cth) (“Migration Act”).

6 A Certain Maritime Incident (n 2).

7 Migration Act (n 5), s 5AA, s 46A(1).

8 Ibid, s 198AB, s 198AD.

9 Migration Act (n 5), s 198AD(4)-(7).

10 Barnes, J. (2022). Suffering to Save Lives: Torture, Cruelty, and Moral Disengagement in Australia’s Offshore Detention Centres, Journal of Refugee Studies, 35(4), p.g. 1508–1529 https://doi.org/10.1093/ jrs/feac041, p. 1509 (“Barnes (2022)”).

11 Migration Act (n 5), div 8.

12 Ibid, s 198AB, s 198AD.

13 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001 (Cth) Bills Digest (Digest No. 70 of 2001-02, 16 September 2001) (“Digest No. 70 2001-02”).

14 Ibid.

15 Digest No. 70 2001-02 (n 13).

16 Migration Act (n 5), s 198AD(7).

17 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

18 Migration Act (n 5), s 5AA.

19 Ibid, s 198AB.

20 Migration Act (n 5), s 198AB(3)(i)-(ii), (4); Basaran, T. (2008). Security, Law, Borders: Spaces of Exclusion, International Political Sociology, 2, 339–354. 344.

21 Ann Martin (2025) (n 3), 4.

22 Zhang, J. (2023). “The ‘Rwanda Solution’: using Australia’s playbook” Migration Mobilities Bristol, University of Bristol, (Media Article), 28 March, <https:// migration.bristol.ac.uk/2023/03/28/ the-rwanda-solution-usingaustralias-playbook/>; The Rt Hon James Cleverly MP, “International social media campaign launched to stop the boats”, Home Office, Gov.

Coco Islands, where asylum seekers arriving without visas are legally considered to be outside the migration zone.13 These individuals were labelled as “offshore entry persons” and were barred from applying for visas under section 46A(1).14 Section 189 empowered officers to detain such persons, while section 198A enabled their transfer to third countries, contingent on minimal humanitarian assurances.15 Importantly, these decisions were largely discretionary and excluded from judicial review.16

In 2013, the legislation was expanded significantly.17 The term “unauthorised maritime arrivals” replaced “of shore entry persons”, and the excised zone was redefined to include the entire Australian mainland.18 Section 198AB replaced 198A, granting the Minister broad, unreviewable discretion to designate regional processing countries based solely on a subjective national interest test.19 While nominal assurances about refugee protections are required, they are not legally binding and there is no accessible criteria to analyse how the Minister specifically chooses regional processing countries.20

Together, these amendments enabled the externalisation of Australia's refugee obligations while shielding executive actions from legal scrutiny, setting a precedent now emulated by other nations.

III. Global Imitation

Australia’s approach has not gone unnoticed. European and North American countries have increasingly looked to the ‘Australia Model’ as a template.21 The United Kingdom has entered into a high-profile agreement with Rwanda to relocate

UK (Press Release), 25 March, <https://www.gov.uk/government/ news/international-social-mediacampaign-launched-to-stop-theboats>.

23 Dastyari, A. (2007). Refugees on Guantanamo Bay: A Blue Print for Australia’s ‘Pacific Solution’?, AQ: Australian Quarterly, 79(1), 4–40; Rausis, F. (2024). Policy diffusion across political ideologies: explaining Denmark’s desire to externalise asylum. West European Politics, 1–29.

24 Lane, I. (2022). “‘We’re seeing a race to the bottom’: How Australia inspired the UK’s controversial Rwanda asylum seeker deal”, SBS News, (Media Article), 17 June, <https://www.sbs.com.au/ news/article/were-seeing-a-race-tothe-bottom-how-australia-inspiredthe-uks-controversi al-rwandaasylum-seeker-deal/tu9gsiaqv>; The UN Refugee Agency, (2024). UK-Rwanda asylum law: UN leaders warn of harmful consequences”, UNHCR global website (Press Release), 23 April, <https://www.unhcr.org/

news/press-releases/uk-rwandaasylum-law-un-leaders-warnharmful-consequences>

25 Refugee Convention 1951 (n 4).

26 Ibid,

27 Frelick, B., Kysel, I. M., & Podkul, J. (2016). The impact of externalization of migration controls on the rights of asylum seekers and other migrants. Journal on Migration and Human Security, 4(4), 190–220.

28 Asylum Seeker Resource Centre, 2024. “Lives at risk in PNG and Nauru as Labor persists with 11 failed years of offshore detention”, (Media Release) (19 July).

29 Barnes (2022) (n 10), 1514.

30 Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues (2013); Memorandum of understanding between The Republic of Nauru and The

Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues (2012).

31 Barnes (2022) (n 10).

32 Barrow, B. (2025). “In their words: What judges and Trump’s government say about Abrego Garcia’s mistaken deportation.” Media Release (16 April 2025). <https://apnews.com/article/kilmarabrego-garcia deportation-mistakeel-salvador-ed94130580412b81d5ff5c 86aea5c0c7>.

33 Bigo, D. et al. (2007). Detention of Foreigners, States of Exception, and the Social Practices of Control of the Banopticon. In Borderscapes (NEDNew edition, pp. 3-). University of Minnesota Press.

34 Migration Act (n 5), s 198AB.

asylum seekers for offshore processing. Despite legal and moral challenges, the UK government continues to frame this as a deterrent against irregular migration, echoing Australia’s rhetoric of “stopping the boats”.22 The United States, under pressure from domestic political forces has also revisited offshore detention at Guantanamo Bay, while Denmark and Austria have explored negotiations with third countries for asylum processing.23 These moves are deliberate adaptations of Australia’s legal evasion and geographic displacement. This expansion represents a growing shift in global immigration policy toward deterrence, securitisation, and diminished refugee protections.24

Key to this diffusion is the rhetorical power of sovereignty. By invoking national interest, states claim legitimacy in overriding international legal frameworks such as the 1951 Refugee Convention.25 Australia’s model demonstrates how domestic law can be weaponised to engineer legal grey zones where international law becomes effectively unenforceable.

IV. Conflict With International Obligations

Australia is a signatory to the 1951 Refugee Convention and its 1967 Protocol, which prohibit refoulement and obligate humane treatment and fair processing for asylum seekers.26 However, the design and execution of offshore processing flagrantly violate these standards.27 Independent investigations and UN findings have documented widespread abuse, medical neglect, and psychological trauma in Nauru and PNG facilities. Reports from the Asylum Seeker Resource Centre indicate that 100% of detainees in PNG suffer from severe health issues and have faced barriers to accessing care.28

Despite these violations, Australia disclaims legal responsibility by arguing that the facilities lie outside its jurisdiction.29 The Memoranda of Understanding with Nauru and PNG reinforce this distancing by asserting that those states hold legal responsibility, even though Australia funds and effectively controls the operations.30 These MoU’s allow Australia to exercise control without corresponding accountability—a clear circumvention of its international legal duties.

The global uptake of the ‘Australia Model’ also poses significant risks to international legal norms. As other nations replicate offshore processing strategies, the normative force of refugee law erodes. The more these practices proliferate, the more they recalibrate the threshold of acceptable state behaviour toward migrants.31 The 2025 deportation of Kilmar Abrego Garcia in the US to El Salvador illustrates this trend.32 The invocation of sovereignty to justify his deportation, despite human rights concerns, reflects the same logic at play in Australia’s policy: when state interest is framed as absolute, individual rights become expendable.33 This example also highlights how unchecked power in the legislature encourages decision-making inconsistent with constitutional regimes and democratic power, as the US courts continue failing to hold the US government accountable following rulings. This mimics the ‘national interest’ sentiments that bestow power on the Immigration Minister to make decisions without the interference of the courts.34

V. Conclusion

The ‘Australia Model’ presents a cautionary tale of how national sovereignty, when unmoored from international obligations, can be weaponised to justify inhumane and illegal treatment of vulnerable populations. By externalising both asylum seekers and legal responsibility, Australia has pioneered a system now echoed globally, one that undermines the very foundations of refugee protection.

To resist this trend, international institutions must reclaim jurisdictional clarity and reaffirm that obligations to refugees do not end at the water’s edge. Democratic societies must confront the narratives of fear and identity that sustain these policies. Without such efforts, the ‘Australia Model’ will continue to reshape global immigration policy into a regime of exclusion, impunity, and racialised sovereignty.

Balancing Act:

Hate Speech and Free Speech in the Social Media Age

by IVANA LAM

I. Introduction

Since its conception, social media has revolutionised our ability to communicate and tap into potentially unlimited global audiences.1 Despite its intention to democratise voice and free speech, social media feeds into its exploitation by extreme parties,2 allowing hate speech to flourish under the defence of free speech. Australian reform continues to lag behind the real world harms posed by online spaces3 despite introducing the Online Safety Amendment (Social Media Minimum Age) Act 2024 (‘Online Safety Amendment’), 4 constructing inadequate liability on social media network providers.5 Indeed, regulating hate speech whilst maintaining free speech is a balancing act that remains elusive, even by international models.

II. Understanding Digital Hate Speech

Digital hate speech is hardly monolithic, existing in a sloped spectrum from moderate to radical beliefs that serve as off-ramps for real-world violence.6 Indeed, the digital affordances of social media platforms provide multimodal communication that lessens the incline of this slope by combining hyperlinked text, graphics, and sound to engage users in the consumption and propagation of hate speech.7 Accordingly, social media algorithms that prioritise engagement deliberately amplify inflammatory content boost posts that provoke user conflict and participation that gives hate speech a disproportionately privileged platform.8

III. Australian Developments

Although the amended Online Safety Act 2021 requires platforms to take various “reasonable steps” to enforce age restrictions, remove illicit content and ensure timely transparency,9 it fails to recognise social media networks’ underlying role in algorithmically boosting hate speech and extremist content that leads directly to offline violence.10 This oversight is echoed in the Criminal Code Amendment (Hate Crimes) Bill 2024, which aims to combat hate speech by “strengthening” existing offences and creating new offences for targeting specific groups11 while overlooking perpetrators’ dissemination of hate speech enabled by complicit platforms.

Indeed, penalties for real-world violence are easily attributable to a human perpetrator, but what becomes of social media platforms as intangible accessories to a crime impossible without their assistance? Instead of directly penalising the harms posed by networks themselves, fines for corporations under Australia’s Online Safety Act are issued in response to non-compliance issues, such as transparency deadlines or breaches of privacy and age restrictions, capped at a civil penalty of $49.5 million AUD.12 Under these provisions, the largest fine thus far

6 Stephane J. Baele, Lewys Brace, Travis G. Coan, ‘From “Incel” to “Saint”: Analyzing the violent worldview behind the 2018 Toronto attack’ (2021) 33(8) Terrorism and Political Violence 1667, 1671–1678. 7 Ozge

7 Ozduzen, Nelli Ferenczi and Isabel Holmes, ‘‘Let us teach our children’: Online racism and everyday far-right ideologies on TikTok’ (2020) 38(5) Visual Studies 834.

8 Smitha Milli et al., ‘Engagement, user satisfaction, and the amplification of divisive content on social media’ (2025) 4(3) PNAS Nexus 1.

9 Online Safety Act 2021 (Cth).

10 Anda Iulia Solea, Lisa Suguira, ‘Mainstreaming the Blackpill: Understanding the Incel Community on TikTok’ (2023) 29 European Journal on Criminal Policy and Research 311-336, 312.

11 Explanatory Memorandum, Criminal Code Amendment (Hate Crimes) Bill 2024 (Cth), 2.

12 Department of Parliamentary Services, Parliament of Australia, Online Safety Amendment (Social Media Minimum Age) Bill 2024 (Digest No 39, 2024–2525, 25 November 2024) 12.

13 AAP, ‘Telegram says it will appeal $1 million fine from online safety commissioner’ SBS (online, 25 February 2025) <https://www.sbs.com.au/ news/article/telegram-says-it-will-appeal-1-

followed a transparency notice filed by the eSafety Commissioner in February 2025, a measure evaded by X Corp (formerly Twitter) whilst messaging platform Telegram was fined $957,780.13

IV. International Provisions

Indeed, this penalty hardly supports what commentators have described as Australia’s “crackdown” against tech giants,14 with the fine issued by eSafety comprising less than 0.1% of Telegram’s revenue in 2024 exceeding $1 billion USD.15 Despite talk of proportional fines under the Online Safety Amendment, 16 its assent did not see the incorporation of such demands, instead opting for a fixed approach similar to Germany’s NetzDG with fines capped at €50 million EUR.17 Conversely, the UK’s Online Safety Act 2023 diverges from the fixed penalties of its counterparts by enacting a maximum fine of 10% of the offending company’s global revenue18 in addition to a daily penalty rate for continuous failure to comply.19 The application of proportionate penalties in an Australian context would likely enable a more compelling crackdown on tech giants, with fines collected worth tens of billions destabilising the profitability of hate speech for its platformers.

million-fine-from-online safety-commissioner/ ysqx0fdoj>.

14 Anton Mous, ‘Telegram hit with AUD$1M fine: Australia’s crackdown on tech giants’ Cybernews (online, 26 February 2025); DW Team, ‘Australia slaps A$1 million fine on Telegram’ DigWatch (online, 24 February 2025); Kimberley Price, ‘eSafety cracks down on Telegram’ ABC Listen (online, 24 February 2025).

15 Alexandra Tremayne-Pengelly, ‘Telegram Closes 2024 With $1B in Revenue and Its First Profit, Says CEO Pavel Durov’ Observer (online, 24 December 2024) <https://observer. com/2024/12/pavel-durov-telegram profit/>.

16 Byron Kaye, ‘Australia threatens fines for social media giants enabling misinformation’ Reuters (online, 13 September 2024); Anthony Galloway, ‘Social media giants to face multimillion-dollar fines for spreading fake news’ Sydney Morning Herald (online, 24 June 2023).

17 Heidi Tworek and Paddy Leersen, ‘An Analysis of Germany’s NetzDG Law’ (2019) Transatlantic Working Group 2.

18 Online Safety Act 2023 (UK) s 143 para 4(1).

19 Ibid s 137 para (1)(b).

Yet, questions remain as to whether information regarding companies’ revenue can be reliably collected, what roles aggravating or mitigating factors play in determining fines, and the accountability of multifarious individual actors through which hate speech rapidly spreads.20 If international models are indeed intent on enforcing responsibility on social media platforms, how can liability be applied in a manner that restricts hate speech without veering into authoritarian surveillance and control? Online free speech is undoubtedly a necessary tool for civic participation,21 yet laissez-faire provisions that fail to penalise or define hate speech — such as the United States’ First Amendment — risk its normalisation as part of internet culture.22 Simultaneously, constrictive surveillance systems diminish free speech and encourage users’ migration to niche sites, including extremist-operated dark web platforms.23

V. Recommendations And Reform

Disputing the theorisation of law as an autonomous discipline, a multidisciplinary approach entails foregrounding legislative reform in a sociopolitical context, with provisions made to not only prevent, but de-escalate hate speech online before it results in real-world violence.24 Although proportionate posthoc fines may disincentivise the facilitation of hate speech, a legal impetus to construct an “architecture of listening”25 on social media platforms may provide more proactive reforms supplementing the existing “reasonable steps”. Although Australia’s Online Safety Act does acknowledge social media networks’ role in housing harmful content, minimal attention is paid to the possibilities of regulating user interface design and other proactive measures for adoptive corporations to deter hate speech before it occurs. As social media networks enable rapid worldwide interaction between disembodied voices,26 posts are sorted into ideologically cohesive echo chambers reinforced by user interface designs that expedite access to agreeable

20 Debbie Ging, ‘Alphas, Betas, and Incels: Theorizing the Masculinities of the Manosphere’ (2017) 22(4) Men and Masculinities 638, 645.

21 Macnamara (n 1) 166.

22 Michał Bilewicz and Wiktor Soral, ‘Hate Speech Epidemic. The Dynamic Effects of Derogatory Language on Intergroup Relations and Political Radicalization’ (2020) 41 Advances in Political Psychology 3, 8–11.

23 Arthur Bradley and Deeba Shadnia, ‘Examining Online Migration to Terrorist and Violent Extremist-Owned Domains’ (Research Paper, George Washington University Program on

Extremism, July 2022) 4–22.

24 Kaitlyn Regehr, ‘In(cel)doctrination: How technologically facilitated misogyny moves violence off screens and on to streets’ (2020) 24(1) New Media & Society 138, 142.

25 Macnamara (n 1) 169-170.

26 Ging (n 20) 642.

27 Bruce Hoffman, Jacob Ware and Ezra Shapiro, ‘Assessing the Threat of Incel Violence’ 43(7) Studies in Conflict & Terrorism 565, 575.

28 Macnamara (n 1) 167–169.

29 Mark Klein and Luca Iandoli, Supporting

content whilst obfuscating content that challenges the user’s beliefs. When disparate echo chambers collide, the ensuing dysfunctional conflict presents an oversaturation of voices without the performance of listening,28 hijacked by hateful and biassed speech garnering disproportionately significant attention.29

Aware of the profits extractable from user engagement, social media networks maintain and build user infrastructure that propagates hateful rhetoric30 in the absence of legal incentives proactively disable hate speech. Our legal frameworks can react to hate speech post-hoc through fines and server shutdowns, but what can we create to deter hate speech a priori? In response to this question of deterrence, current laws and regulations must go beyond the reactionary policing of social media and messaging platforms,31 necessitating regulations for social media interfaces that require corporations to design a visual architecture of listening that engages users in diverse viewpoints before enabling discussion.32 Such infrastructure would both espouse users’ free speech whilst decentring the amplified voice afforded to hate speech, which distorts the perceived consensus by leading users to overestimate general support for extreme viewpoints.33 By compelling social media networking apps available in Australia to regulate their user interfaces, mainstream users may experience greater social cohesion through functional debate and reduced exposure to hateful or extreme viewpoints,34 although these reforms will likely entail severe pushback from both corporations and users.

Knowing the links between digital affordances and the propagation of hate speech, we must now ask ourselves what emotionally engaging features of social media interfaces we are willing to trade for free speech forums that balance informed viewpoints. Yet, enforcing an architecture of listening onto mainstream sites may cause a wave of digital migration to dark web sites containing extremist content,35 necessitating a cautious approach to reforming what is currently a reactionary body of legislation across the global landscape.

Collaborative Deliberation Using a Large-Scale Argumentation System: The MIT Collaboratorium (Working Paper 4691-08, 20 February 2008) 1.

30 Damian Tambini, ‘Rights and Responsibilities of Internet Intermediaries in Europe: The Need for Policy Coordination’ in Taylor Owen (ed), Models for Platform Governance (Centre for International Governance Innovation, 2019) 91, 92.

31 Heather Williams et al., ‘Understanding the Virtual Extremist Ecosystem’ in Heather Williams et al., The Online Extremist Ecosystem: Its Evolution and a Framework for Separating Extreme from Mainstream (RAND Corporation, 2021) 4, 9.

32 Macnamara (n 1) 169–171.

33 Claire Robertson, Kareena del Rosario and Jay Van Bavel, ‘Inside the funhouse mirror factory: How social media distorts perceptions of norms’ (2024) 60 Current Opinion in Psychology 1, 1–4.

34 Mark Klein, The MIT Collaboratorium: Enabling Effective Large-Scale Deliberation for Complex Problems (Working Paper 4679-08, 31 December 2007) 19.

35 Williams et al. (n 32) 4.

VI. Conclusion

Faced with uneven political will as governments benefit from social media networks’ immense profitability and surveillance networks,36 lofty barriers stand between Australian society and the abatement of online hate speech. In order to surmount this obstacle to social cohesion, a duty of care should shift onto platforms through proportionate penalties whilst

adopting a multidisciplinary response, establishing a stronger link between online safety and hate speech legislation. There is a road to progress carved out for the performance of a balancing act between free speech and hate speech, but a dead-end street for those who sit and watch the scale tip towards the latter.

The BehindMan the Curtain:

Attribution in the Digital Age

by BRIAN CHUAHIOCK

Introduction: The Interconnected World of Contracts

In the digital age, it is easy to overlook the underlying legal complexity of automation. While using automation in contracts is not particularly new,1 international commerce has used a variety of contract automation from Amazon’s web service administering the sale of goods.2 Disburse payments after checking current weather data without the need to file a claim.3 It would not be

36 Shoshana Zuboff, ‘Big other: surveillance capitalism and the prospects of an information civilization’

a hyperbole to say that substantial portion of contracts occurring around the world happen automatically. This article hopes to introduce the reader to the increasingly relevant principle of attribution as it applies to automated contracts. To do so, it will compare the Electronic Transactions Act 2000 (NSW) (the ‘ETA’), recommendations by the United Nations Commission on International Trade Law (‘UNCITRAL’), and a few jurisdictions.

Attribution

It may seem obvious at a glance that acts are attributed to the person performing them. By attribution, this means that an output is bound to a person;4 and in the context of electronic transactions in NSW, that the ‘originator’ is bound by the electronic communication,5 which may result in a transaction.6 It must be noted that while the ETA defines attribution in the context of using electronic communication,7 the concept of attribution may itself be broader. Rather, attribution is merely concerned with ‘identifying the person “behind” the output.’8 It is separate from the concept of liability, which identifies who bears legal consequences for the output,9 but is nevertheless important in determining questions of contract performance and liability. For example, if an insurance company used software to assist in the determination of risk of its policyholders, and the algorithm sorted on a discriminatory basis (like race), the act will likely be attributed to the insurance company while liability may be contested between the company and the software vendor.

International approaches to attribution

The formation of contracts using automated systems is tackled in domestic jurisdictions around the world. In Germany, the courts considered whether a device that, when pushed, ordered products linked to it, engaged consumer protections, which it did.10

In Japan, the district court examined whether horse racing bets involving an automated machine where persons filled in details of a paper slip fed into the machine was considered an offer and acceptance of a contract.11 There is a similar counterpart case in Queensland where a parking ticket dispensing

machine at the entrance of a carpark, with the customer paying with their money constitutes offer and acceptance.12

Another case in England and Wales involved a tool where insurers held out their software as an automatic contracting medium where brokers could input data. It was held that the software vendors were not agents and that the insurers were entering directly into insurance contracts, attributing them to the system output.13

Finally, in the United States, a case involved “screen scraping”, a term used when a program ‘scrapes’ data or information from websites was considered.14 It was eventually decided that the terms and conditions of the use of the ‘scraped’ website could be assented to through automated software programs.15 The commonality of all these cases is that the party for whom the automated system acted, is usually deemed the originator of the action performed by the automated system.

Automated Systems: Australia to UNCITRAL

The UNCITRAL recently adopted a model law on automated contracting,16 which in turn defines automated systems as a ‘computer system carrying out actions without the necessary review or intervention of a natural person.’17 This definition also encompasses ‘algorithmic contracting’, which uses algorithmic processes powered by Artificial Intelligence.18 The general rule being that unless otherwise agreed, actions carried out by an automated system will beis attributed to the person who uses it for that purpose.19

The ETA has similar provisions on automation. It uses the term ‘automated message system,’ which it broadly defines as ‘a computer program, electronic, or automated means used to initiate an action or respond to data messages…without review or intervention by a natural person…’20 However, the rules of attribution within the ETA seem only to pertain to ‘electronic communications.’21 There is no similar provision for the attribution of automated message system, except for the rule that contracts involving automated message systems are not invalid, void or unenforceable on the sole ground that no natural person reviewed or intervened.22 In effect, there is doubt as to whether electronic communications that originate from an

automated message system remain attributable to the user. To demonstrate, if someone were to create a program that orders clothes at a certain price point, and it happened to order clothes from Amazon, it may be argued that the transaction is not attributable to the creator of the program since the electronic communications were attributable to themy program (as an automated message system). It is for this reason that the simpler rule under the UNCITRAL law that actions of the automated system are actions of the person using it, are recommended.

Conclusion

All jurisdictions have principles of attribution to link the acts of one automated system to a party. While this author has barely scratched the surface, the advancements of AI and automation will likely bring about more complex issues on the attribution principle. The digital sphere has made the world smaller, but it has only made the world of contracts larger.

Behind the Article

1 ‘Smarter Contracts’, (Report, Lawtech UK, 2022) 73.

2 Ibid 95.

3 Ibid 61.

4 Developing new provisions to address legal issues related to automated contracting, 6th Comm, 64th sess, UN Doc A/CN.9/ WG.IV/WP.177 (12 September 2022) 2-3 [5] (‘Automated Contracting Provisions’).

5 Electronic Transactions Act 2000 (NSW) s 14 (‘ETA’).

6 Ibid s 7.

7 Ibid s 5.

8 Draft guide to enactment of the Model Law on Automated Contracting, 6th Comm, 67th sess, UN Doc A/CN.9/WG.IV/WP.185 (23 September 2024) 14 [61] (‘Draft Guide on Automated Contracting’).

9 Automated Contracting Provisions (n 4) 2-3[5].

10 Advancing work on automated contracting, 6th Comm, 65th sess, UN Doc A/CN.9/ WG.IV/WP.179 (01 February 2023) 3 [9](a) (‘Advancing Work’) citing Higher Regional Court Munich, 29 U 1091/18, 10 January 2019.

11 Advancing Work (n 10) 5-6 [15] citing The Lucky Betting Ticket case, Case No. 2002 (Wa) 13238, 30 July 2003, Kin’yū Shōji Hanrei, vol. 1181, 36.

12 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (169, Lord Denning MR).

13 Advancing Work (n 10) 5 [13] citing Software Solutions Partners Ltd v. Her Majesty’s Commissioners for Customs and Excise [2007]

EWHC 971.

14 Ibid 4 [9](b) citing Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2004).

15 Ibid.

16 Draft Guide on Automated Contracting (n 8) annex IV (‘Model Law on Automated Contracting’).

17 Ibid art 1(1)(a).

18 Draft Guide on Automated Contracting (n 8) 3 [9].

19 Model Law on Automated Contracting (n 16) art 7.

20 ETA (n 5) s 5 (1) (definition of ‘automated message system’).

21 Ibid s 14.

22 Ibid s 14C.

reForming AuStraliAn privAcy law:

Lessons from the United Kingdom’s Rights-Based Model

A comparative study of the Australian and United Kingdom’s Data Privacy Laws

by EMMA WITTS

I. Introduction:

The global landscape of data privacy has become increasingly complex. The rapid advancement of technologies such as artificial intelligence, alongside the widespread collection and sharing of personal information, has intensified the imperative for regulatory frameworks to evolve in response. Global concerns surrounding data privacy are escalating, evidenced by recent findings indicating that 65% of consumers identify data breaches as their primary privacy concern, while 25% report having personally experienced data theft.1 This underscores the pressing need for the implementation of more robust and modernised privacy protections. The purpose of this essay is to conduct a comparative analysis of the data privacy laws in Australia and the United Kingdom. The analysis highlights the United Kingdom’s progressive approach to data protection and contends that Australia must similarly reform its legal framework to respond more effectively to emerging digital challenges.

II. Legal Framework:

In Australia, the Privacy Act 1988 serves as the primary legislation, governing the protection of individual privacy and the regulation of how organisations handle personal information.2 It outlines 13 Australian Privacy Principles (APPs), which set standards for the collection and use of personal data.3 The Office of the Australian Information Commissioner (‘OAIC’) is responsible for enforcing the Act and investigating privacy breaches. In contrast, the United Kingdom is governed by the General Data Protection Regulation (‘UK GDPR’) governs data protection and privacy.4 It is regulated by the Information Commissioner’s Office (‘ICO’) and provides a comprehensive set of rules on how personal data should be processed, granting individuals certain rights. The Data Protection Act 2018 supplements the UK GDPR, providing additional provisions, although the focus of this essay will remain on the UK GDPR.5

III. Comparing the UK and Australian Privacy Regimes:

The history of Australia’s privacy legislation, and its systemic flaws, can be attributed to the reluctance of both the legislature and the judiciary to clearly define privacy as a prescriptive legal right. This reluctance has resulted in a fragmented framework, which is subject to broad interpretation, lacking the consistency and clarity required for effective enforcement. Notably, Australian common law does not expressly recognise a tort for invasion of privacy. The need for this development was discussed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 6 Australia’s existing privacy regime is grounded in the ‘purpose specification principle’,7 a concept that is aligned with the regulatory needs of an outdated period characterised by limited and narrowly defined data processing practices. With the rise of big data analytics, data is now frequently collected not for a specific, pre-defined purpose, but rather retained for potential future use, often in ways that are unforeseeable at the time of collection.8 This paradigm shift necessitates a

reform of the legal framework, with a move towards a model that recognises that data collection in itself can constitute a decision. Absent this, Australia’s current non-consensual model risks becoming increasingly inadequate in addressing contemporary data practices.9

The effectiveness of a privacy regime depends not only on the strength of its legal protections and enforcement mechanisms, but also on its ability to adapt to technological realities. In this respect, the United Kingdom’s data protection framework arguably provides more robust and developed legal protections than Australia’s current regime. The United Kingdom ICO provides detailed, accessible guidance on compliance with data protection laws, including how to navigate the complexities posed by new technologies such as AI. This helps organisations to adapt to complex technologies while remaining compliant. In contrast, Australia lacks this level of granular guidance from its privacy regulators, making it harder for business to comply proactively. Comparably, the United Kingdom recognises a standalone tort for misuse of private information, developed judicially and strongly influenced by the European Convention on Human Rights.10 This has enabled UK courts to actively balance privacy interests against competing rights in a structured and principled manner. Landmark cases such as Campbell v MGN Ltd and McKennitt v Ash illustrate the United Kingdom’s nuanced approach, where courts apply a seriousness threshold and weigh the public interest.11 This stands in contrast to Australia, where there is still no tort for the misuse of one’s privacy, and where the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd declined to recognise one outright, leaving the possibility open for future development.12 Given these disparities, it can be concluded that the United Kingdom’s approach is more effectively aligned with contemporary challenges. This approach affords enhanced protection to individuals and serves as a persuasive model for potential reform of Australia’s legal framework.

IV. Broader Implications

As technology advances, new methods of privacy

U.K.

violations are emerging which present a significant challenge for current legal frameworks. The rise of digital crimes has created opportunities for privacy invasions that were not previously possible. As noted in a submission to the Australian Law Reform Commission, these new technologies ‘enable perpetrators to invade a victim’s privacy in ways not previously possible. These serious invasions of privacy are multi-dimensional and complex’.13 Furthermore, it has been noted by the UK Government Chief Scientific Adviser, ‘criminals have moved away from cracking metal safes and bank vaults. The money is now in their digital equivalents’.14 This evolving threat highlights the necessity for Australia to modernise its data privacy laws to address emerging challenges posed by digital technology, ultimately resulting in a higher level of protection.

Recognising the growing inadequacy of existing legal protections, successive inquiries have sought to strengthen Australia’s current privacy regime. Thus, prompting the Australian Law Reform Commission to recommend the introduction of a statutory tort for serious invasions of privacy.15 If implemented, this tort would mark a significant advancement in the protection of individual privacy rights, offering a more direct avenue for redress in cases of egregious data misuse. Furthermore, there has been increasing international convergence in data protection

standards, with Australia demonstrating an intention to align more closely with the United Kingdom’s data privacy framework. This has been exemplified by UKAustralia Online Safety and Security Memorandum of Understanding (MoU) signed in February 2024.16 This MoU represents a strategic commitment to joint action on digital safety and privacy issues in the face of advancing technologies. In this context, aligning Australian privacy laws closely with the United Kingdom’s approach would not only enhance domestic protection but further facilitate greater regulatory consistency across jurisdictions. As digital threats continue to transcend current legal protections, the regulatory landscape demands a more flexible approach; one that is capable of responding to the complexity of technological change.

V. Conclusion

This comparative analysis of the Australian and United Kingdom privacy regimes illustrates a clear imperative for reform within the Australian legal system. While both jurisdictions share a commitment to safeguarding personal data, the United Kingdom’s legal framework ultimately demonstrates a more coherent, rights based, and future facing approach to data protection. In contrast, Australia’s regime reflects a legal architecture that is increasingly out of step with the realities of modern data practices. Legislative reforms, including the introduction of a statutory tort and enhanced regulatory guidance, would significantly strengthen Australia’s capacity to uphold individual rights in the digital age. Ultimately, the evolution of data privacy law in Australia must now be guided by a proactive and internationally attuned legislative agenda, ensuring resilience against emerging digital threats.

Redrawing Regulatory Frontiers

Australia’s Leap into Mandatory Merger Regime and Its Implications for Competition Policy

I. Introduction

Australia’s competition policy is undergoing a paradigm shift in its merger controls framework with the passing of Treasury Laws Amendment (Mergers and Acquisition Reform) Act 2024. 1 In 2023, ACCC announced the introduction of a mandatory merger regime, effective January 2026.2 This reform marks a significant policy shift and replaces the decades old voluntary notification system, aligning Australia with interventionist jurisdictions like the EU and US. It is designed to strengthen the ACCC’s ability to prevent mergers that may affect competition.

This article examines the key mechanisms of the new regime, its implications for competition policy and the strategic challenges it poses for businesses. While it argues that the reforms close critical enforcement gaps, they risk stifling transactional agility, a tension that will shape Australia’s M&A landscape but as there is little to no insight on how businesses should prepare right on how to navigate this gap, we will try to evaluate the new normal.

by [ AUTHOR NAME ]

II. The New Regulatory Architecture

Under Treasury Laws Amendment (Mergers and Acquisition Reform) Act 2024, businesses will be legally required to notify and obtain clearance from the ACCC and mergers exceeding defined monetary thresholds must be approved by the ACCC before completion for this it requires that a transaction must be notified if it meets the Economy wide Threshold. This suspensory mechanism prevents "gun jumping" (premature integration) and mirrors the EU’s “exante” model.3 Another key feature is the introduction of standstill obligation which sets out that once a transaction is notifiable it cannot be put into effect unless approved by the ACCC.

With the removal of the Federal Court’s merger approval role, it is anticipated that only limited merits review will be available through Australian Competition Tribunal and also a tricky and how the "global mergers" will be treated under the new regime would be interesting.

III. Major Implications for M&A Strategy

The shift to a mandatory and suspensory merger regime carries far reaching implications because it must now be notified to and cleared by the ACCC affecting all deals even those which raise no competition concerns. This is due to the low monetary thresholds and the expansive scope of the regime. This will directly affect the transaction strategy, structuring, and execution of deals and in order to adapt to these changes, the parties should factor in extended regulatory timelines when planning deals.

This marks a major departure from the previous voluntary regime.

Parties must now exercise extreme caution in preclosing conduct, and this could particularly affect cross-border transactions that must align timelines with overseas regulatory processes. The ACCC will scrutinize serial acquisitions more closely and it could also require retroactive compliance to contracts signed before 1 January 2026 but scheduled to complete after that date under the new regime and I can only conclude that Businesses must adjust their M&A timelines to account for regulatory clearance time.

IV. Gun Jumping: From Implied to Express Prohibition

The new regime introduces express prohibition on "gun jumping" which was previously policed indirectly under the Competition and Consumer Act 2010 (Cth), through prohibitions on cartel conduct and anti-competitive agreements.4 But now it is a standalone procedural offence and any deal that has the potential to “put into effect” a notifiable acquisition before obtaining ACCC clearance will constitute a direct breach of the standstill obligation.

Since the scope of this provision is too broad it will capture even subtle forms of integration such as sharing customer or supplier data, joint decisionmaking, or coordinating marketing and IT systems or internal planning between parties and not just actions like transferring staff or assets.

Merger parties will need to exercise caution between signing and completion to avoid inadvertent breaches.

V. Impact on Public Takeovers & Hostile Bids

Public takeovers & hostile bids will be affected as bidders will be prohibited from acquiring more than 20% of the target’s shares until clearance is granted by the ACCC which will block the use of on-market acquisitions to build momentum. This can result in significant delays and shareholders are unlikely to accept offers when the outcome of a regulatory condition remains uncertain.

VI. Policy Concerns & Suggested Fixes

Although Australia’s new merger regime aims to safeguard competition it has been criticised to increase compliance costs and create a regulatory bottleneck especially for private equity firms and serial acquirers. The main concern is the low monetary thresholds which are likely to trigger mandatory notification for transactions that pose minimal to no competition risk.

It poses several practical and legal concerns which may hinder efficient, pro-competitive deal-making.

VII. Conclusion

Australia’s merger control framework is undergoing a significant transformation to a new normal, where the new regime promises greater transparency and proactive competition enforcement. It transforms a toothless tiger into a guarding lion from threats domestic and foreign by adhering to international standards set out in other jurisdictions such as the European Union, the United States5 and China. If it is not implemented efficiently, it also could result in complexity, delays, and legal risk for businesses navigating mergers and acquisitions

Success in this new regime will depend not just on compliance but on timing, foresight, and precision opening a new layer of skill sets for the M&A Industry.

Regulating Digital Platforms:

by JENNY WEI

I. Introduction

Throughout the past few decades, the rapid evolution of technology and the rise of powerful digital platforms have reshaped the global competitive landscape, exposing the limitations of traditional regulatory frameworks. As tech giants continue to maintain their dominance and control over online ecosystems, concerns around market concentration, harm minimisation, and censorship have prompted governments and legislators globally to reform competition policies.1 Among the international responses are the European Union’s Digital Services Act (‘DSA’)2 and Digital Markets Act (‘DMA’).3 Now, Australia stands at a pivotal point in developing its own regulatory response.

Australia’s Regulatory Reform in Light of the EU Model

that balances innovation with fair competition in an increasingly borderless digital market.

II. Limitations of Australia’s Existing Framework

While Australia’s competition and consumer laws framework is well-equipped to address many forms of harmful conduct, it struggles to effectively address the unique challenges presented by digital platform markets.4 Where, enforcement of economy-wide rules alone is insufficient in regulating fast-moving, complex digital platform markets.5 Since 2017, the Australian Competition and Consumer Commission (‘ACCC’)

(Digital Services Act) OJ L 277/1. (‘Digital Services Act’)

3 REGULATION (EU) 2022/1925 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) OJ L 265/1. (‘Digital Markets Act’)

4 Australian Competition and Consumer

Digital platform markets operate at a pace and scale that highlights the limitations in Australia’s existing competition and consumer law framework. While the Competition and Consumer Act 2010 and Australian Consumer Law offer a comprehensive, economy-wide protection framework, they are insufficient when applied to substantial and entrenched market powers of dominant digital platforms.7 The ACCC’s 2022

Commission, Digital Platform Services Inquiry Interim Report No. 5 — Regulatory Reform (Interim Report No. 5, September 2022) . (‘DPSI Interim Report’)

5 Australian Government The Treasury, A new digital competition regime (Proposal paper, December 2024) 4. (‘A new digital competition regime’)

6 Australian Competition and Consumer

Commission, ‘Digital platform services inquiry 2020-25’ Project Overview (Web Page, 31 March 2025) https://www.accc.gov.au/inquiriesand-consultations/digital-platform-servicesinquiry-2020-25.

7 DPSI Interim Report (n 4) 4.

interim report aligns with the international consensus that digital platforms require specific and tailored regulation beyond traditional competition laws.8 Traditional ex post enforcement methods, designed to intervene after harm has occurred, cannot effectively prevent nor remedy the rapid and often unclear anticompetitive conduct in digital markets.9 The technical complexity of digital platform services may further complicate the detection of potentially harmful and unlawful conduct, rendering reactive enforcement particularly ineffective.10 Thus, proactive ex ante regulation specifically designed for digital platform services will enable effective preventative measures to prevent anti-competitive conduct from occurring, promote stronger alignment with international regulatory norms and cross-border consistency.11

The ACCC’s journey towards establishing digital platform regulation has followed an increasingly targeted approach to address these challenges. Beginning with the Digital Platforms Inquiry 2017 – 2019, the final report identified Google and Meta — previously known as Facebook — as having substantial market power, highlighted critical competition concerns, and made 23 recommendations.12 Subsequently, the ACCC narrowed its focus in the Digital Advertising Services Inquiry 2020 – 2021 to analyse anti-competitive practices in the digital advertising technology supply chain and market; where, its final report documented Google’s dominant position within the ad tech supply chain, identified specific anti-competitive practices and made 6 recommendations.13 Finally, the ACCC’s 2020 –2025 Digital Platform Services Inquiry Final Report will focus on international regulatory developments, major developments in digital platform markets, and the identification of potential or emerging issues as a foundation to propose a new dedicated ex ante competition regime for Australia.

III. European Union’s Approach

The European Union's regulatory approach provides valuable context for evaluating and informing Australia's proposed reforms. In December 2020, the European Commission first proposed a comprehensive reform of the digital space, provided through a new set of rules for all digital services operating within the European Union.14 After adoption by the European Parliament and Council on 14 September 2022, the Digital Markets Act (‘DMA’) entered into force on 1 November 2022 and became applicable on 2 May 2023.15 Its complementary legislation, the Digital Services Act (‘DSA’) was adopted on 19 October 2022 and entered into force the following month.16

The DMA presents a novel approach in its imposition of ex ante competition obligations on designated ‘gatekeeper’ platforms — defined as large digital platforms providing core digital services that satisfy a set of criteria, including economic, significance, market impact, international operations, and entrenched market position.17 On 6 September 2023, the European Commission designated six gatekeepers — Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft.18 Unlike traditional competition laws that act retrospectively, the DMA provides preventative rules prohibiting specific anti-competitive behaviours.19 These proactive obligations complement existing competition laws by providing a clear set of ‘dos’ and ‘don’ts’, and regular market investigations carried out by the Commission to ensure matching of the fast pace of digital markets.20

8 Ibid.

9 Ibid, 8.

10 Ibid.

12 Ibid, 12.

12

13 Australian Competition and Consumer Commission, Digital Advertising Services Inquiry (Final Report, August 2021).

14 Australian Competition and Consumer Commission, Digital Platforms Services Inquiry — March 2025 — Final Report (Issues Paper, 25 July 2024) (‘DPSI — March 2025 — Final Report’)

15 Digital Markets Act (n 3).

16 Digital Services Act (n 2).

Complementing the DMA, the DSA focuses on platform transparency, user safety, and content moderation.21 It imposes obligations proportionate to the platform’s size and corresponding risk, particularly for Very Large Online Platforms (‘VLOP’s) and Very Large Online Search Engines (‘VLOSE’s).22 While the DMA focuses on economic relationships between platforms and business users, the DSA protects the consumers through imposing stringent requirements on platforms, explaining content moderation decisions, and providing effective complaint mechanisms.23 Together, the DMA and DSA provide a comprehensive approach to digital regulation that addresses both economic and social concerns of platform power.

While the full impact of the DMA and DSA is yet to be accurately assessed due to its recent implementation, the European Commission estimated a consumer benefit of approximately €13 billion ($21.4 billion AUD) annually through its promotion of competition, innovation, and consumer choice.24 Recent decisions that highlight the effective enforcement of the DMA includes the Commission finding both Apple and Meta in breach of DMA rules — Apple for failing to inform consumers of alternative offers outside the App store, and Meta for failing to provide privacy-preserving alternatives to consumers.25

IV.

ACCC’s Proposed Approach

Building on years of inquiry and international observation, Australia is now on the cusp of implementing its own regulatory reforms. In December 2024, the Treasury released ‘A New Digital Competition — Proposal Paper’, outlining a new digital competition regime aimed to promote effective competition in digital platform markets.26 The proposed framework will introduce upfront requirements and obligations for ‘designated’ digital platforms with significant market power.27 It will include primary legislation that establishes designation criteria, broad obligations, and enforcement and compliance mechanisms, to be supported by more specific subordinate legislation.28 This structure prioritises flexibility, where digital platform entities would be designated based on their market impact with respect to their specific services.29

When comparing Australia’s proposal with the EU’s model, the EU’s DMA and DSA employs a comparatively rigid, qualitative designation system and leaves little room for regulatory discretion.30 The ACCC’s proposal, on the other hand, provides a more flexible, service-specific designation framework that prioritises the promotion of competition and fair trading.31 This nuanced approach will provide greater adaptability for emerging service types, reduce the risk of misclassification, and offer a more tailored approach, proportionate to Australia’s comparatively smaller digital market.32 However, increased discretion may lead to uncertainty, increase of administrative burden, and create divergence from global standards.

Additionally, while the EU implemented the DMA and DSA as complementary legislations that, together, offer a comprehensive framework addressing both economic competition and consumer protection, the ACCC’s current proposal focuses predominantly on competition issues. While this may be remedied by supplementary legislation, it may create regulatory gaps within the framework.

V. Conclusion

As digital platforms continue to transform traditional market dynamics, regulatory frameworks must similarly evolve to remain effective. The European Union’s adoption of its comprehensive, albeit relatively rigid, Digital Markets Act and Digital Services Act has set an international benchmark in digital platform regulation. Australia can draw valuable lessons from the EU’s early implementation, adapting its regulatory framework to avoid emerging challenges, respond to domestic market conditions, and ensure that the framework is flexible and proportionate. However, in doing so, Australia must remain mindful of the risks of regulatory divergence, particularly in relation to international coherence. Australia’s proposed digital competition regime presents a timely and meaningful response to emerging challenges, but its long-term success will depend on its ability to strike the right balance between flexibility and certainty, global alignment and local relevance, and most importantly, between present reform and future resilience.

22 Ibid.

21 European Commission, The Digital Services Act (Web Page) https://commission.europa.eu/ strategy-and-policy/priorities-2019-2024/ europe-fit-digital-age/digital-services-act_en

3) ch II – III; European Commission, The Digital Markets Act: ensuring fair and open digital markets (Web Page) https:// commission.europa.eu/strategy-and-policy/ priorities-2019-2024/europe-fit-digital-age/ digital-markets-act-ensuring-fair-and-opendigital-markets_en

23 Ibid.

24 A new digital competition regime (n 5) 5.

25 European Commission, ‘Commission finds Apple and Meta in breach of the Digital Markets Act’ (Press Release IP/25/1085, 23 April 2025) 1.

26 A new digital competition regime (n 5).

27 Ibid, 6 – 7.

28 Ibid.

29 Ibid.

30 Digital Markets Act (n 3) art 3.

31 A new digital competition regime (n 5) 6.

32 Ibid, 7.

Eureka!

Australia’s Anti-Unionism and the Swedish Model

ALI YULDASHEV

A Weakened Movement

Australia was one of the first countries to achieve an 8-hour working day, alongside substantially contributing to recognition of leave entitlements and equal pay — thanks to the contributions of unions, protest and worker movements.1 Today, the national union membership rate is 13%, a fall from grace of the 40% in 1992, with the trend continually regressing.2 Industrial action has fallen by 97% in the period between 1976-2018.3 While there has been a large demographic change from blue-collar and manufacturing to white-collar, health and teaching occupations, there has also been clear wage stagnation — real wages continue to stagnate or decrease, especially compared to international OECD peers.4 Many point to the erosion of collective bargaining powers, as a result of previous and current legislative frameworks as one of the main factors contributing to this.5 The current system is largely reliant on a complex statutory framework that often meddles with the power of unions to form or take action.6 Comparing our system with a Nordic model can provide useful lessons for the future of a more equitable workplace law.

1 Bradley Bowden, ‘The rise and decline of Australian unionism: a history of industriallabour from the 1820s to 2010’ [2011] (100) (Labour History) 51.

2 Australian Bureau of Statistics, Trade union membership, August 2024 (Catalogue No. 6335.0, 9 December 2024).

3 Jim Stanford, The Future of Work Is What We Make It: Submission to Senate Select Committee on the Future of Work and Workers (Submission No 57, Centre for Future Work at the Australia Institute, January 2018).

4 Andrew Stewart et al, The Wage Crisis: Revisited (University of Adelaide Press, 2021) 13.

5 Ibid.

6 Anthony Forsyth and Shae McCrystal, ‘Reforming Australian Bargaining and Strike Laws to Maximise Worker Power’ (2023) 46(4) (UNSW Law Journal) 1105.

7 Fair Work Act 2009 (Cth) (‘FWA’).

8 Anthony Forsyth and Andrew Stewards, ‘Fair Work: The New Workplace and the WorkChoices Legacy’ (2009) 34(3) (Alternative Law Journal) 288.

9 Bowden (n 1) 69.

10 Ibid.

The Current System

The Fair Work Act (‘FWA’)7 sets out a cohesive framework protecting employees and was championed by many in light of the previous ‘Draconian’ WorkChoices system. This was set out by the Howard Government to significantly restrict trade unions and leave many employees vulnerable with policies like the quashing of unfair dismissal for small companies.8 Since 1991, most workplace bargaining has taken place through enterprise bargaining — where an employer and employees (or their representatives, like unions) can agree on all terms, including pay, leave, hours, dispute resolution, etc.9 Under the FWA, many agreements occur without, or with minimal union participation, largely driven by employers discouraging the idea. In addition, these agreements typically only focus on one enterprise, rather than a whole industry — this fragments industry-wide movements and makes it more difficult to push for collective change.10

More importantly, under this bargaining regime, collective action can only be taken during enterprise bargaining, and under the condition that it is approved by the Fair Work Commission (‘FWC’), after a secret ballot is approved by a majority of employees. The FWC also has the power to suspend strikes if they ‘threaten economic harm’ (under s 424 of the FWA)11 and employers can take unions and employees to court over ‘unprotected’ actions.12 While the purpose of the legislation is to balance the welfare of the public, the economic stability against harm, is

largely restrictive. In 2018, Sydney Trains threatened a 48-hour shutdown of the rail network, leading to an order by the FWC to suspend strikes based on their threat to welfare.13 The next enterprise bargaining dragged on for over 500 days due to unions taking significantly lower-level actions that wouldn’t cross the threshold for termination.14 Recently, bargaining over the new agreement was suspended for 5 months, justified by a ‘cooling off period’, after months of onand-off action and negotiation.15

A 2022 FWC decision halted negotiations between Svitzer, Australia’s largest tugboat operator, and its employees who imposed work bans to strike against wage cuts and conditions in a new agreement, after Svitzer conducted an indefinite lockout.16 Again, s 424 was invoked on ground of ‘economic harm’, suspending both union action and the lockout for 6 months. This allowed Svitzer to keep its demands, and the negotiations to be slowed. Lockouts can be unilaterally without ballots or approval, and in this case, Svitzer ultimately ‘won’ by slowing negotiations.

The FWC strongly favours ‘peaceful’ arbitration proceedings rather than strikes and has shown to retaliate against actions in a way that slows negotiations and ultimately reinforces bureaucracy against employees. Fair Work claims to balance public welfare and worker rights, but in practice, its labyrinth of ballots, cooling-off periods, and FWC interventions drag out disputes — empowering employers to outlast unions.

Australia has been criticised for having some of the most severe restrictions on industrial action of any industrialised nations, and laws that are inconsistent with declarations of the Industrial Labor Organisation.17 If our system is broken, what alternatives exist? Sweden offers a model of robust, highly involved union movement — but with its own challenges.

11 FWA (n 7) s 424.

12 Forsyth (n 6).

13 Re Sydney Trains (2018) 277 IR 389.

14 ‘FWC to Arbitrate NSW Rail Dispute after Minister’s Serve’, Workplace Express (online, 28 November 2022) <https://www. workplaceexpress.com.au/nl06_news_selected. php?act=2&selkey=61788>.

15 Nick Dole, Danuta Kozaki and Jean Kennedy, ‘NSW government wins bid to suspend industrial action on rail network’, ABC News (Sydney, 19 February 2025).

16 Re Svitzer Australia Pty Limited [2022] FWCFB 209.

17 Stanford (n 3).

18 Worker Participation Eu ‘Sweden’ < https://www.worker-participation.eu/ national-industrial-relations/countries/ sweden#:~:text=The%20level%20of%20 union%20membership,been%20broadly%20 stable%20since%202008> .

19 European Trade Union Confederation, Sweden: Country report 2022 (Report, 2022).

The Swedish Model

In comparison, the Swedish Model represents a healthy alternative to the current bureaucracy. In Sweden, 7 in 10 employees are part of a union — a slight decrease from 85%. 3 decades prior, but the number has stably held since the 2008 GFC.18 While there is national legislation regarding specific rights of workers, much of the disputes that are elevated are resolved on a case-by-case basis.19 The Ghent system, adopted across the Nordic nations, affords those who are unionised special benefits that encourage union uptake. For example, Australia’s state-run Centrelink unemployment benefits are universal and meanstested. However in Sweden the state does provide basic allowances, a bulk of the benefits are afforded through the union-affiliated insurance funds — a bulk of the subsidies come from the government, but benefits are managed by unions.20 In addition, pension and other insurance are often provided through union ‘insurance’ schemes.21 Under s 346 of the FWA, a non-union worker cannot be disadvantaged or coerced for their union status — this means a thorough welfare system created by unions is in fundamental conflict with Australia’s workplace law, and freedom of association rules.22 In addition, the Ghent system relies on state subsidies and higher union fees to effectively function — this might be a hard sell for Australia’s more laissez faire attitude.

20 Jayeon Lindellee and Tomas Berglund, ‘The Ghent system in transition: unions’ evolving role in Sweden’s multi-pillar unemployment benefit system’ (2022) 28(2) (Transfer, The European Review of Labour and Research) 1117.

21 Ibid.

22 FWA (n 7) s 346.

Importantly, there is no primary statute that enforces strict conditions for union actions, rather, unions can collectivise in industries and are not required to fill out ‘formalities’ like ballots.23 Sweden’s legislation clearly allows association and the right to strike — they don’t enforce a national minimum wage, or universal rules on application of agreements.24 This decentralisation means minimal government intervention, or “middle men” like the FWC, without sacrificing actual wages — although some concerns do arise from a lack of negotiated minimum wages in certain sectors.25

However, with increasing globalisation, outsourcing and the exploitation of migrant workers has become a big issue. Notably, union action against Tesla from several sectors has seen the company legally employ non-union workers from other countries — other companies have also started doing this as migrant workers aren’t afforded the same protections.26 In Australia, regulations keep employers (mostly) in check — while some slip through the cracks, the robust legislative regime protects all workers, including migrants.27

Learning Lessons

A hybrid system that provides more power to unions, with less regulation surrounding freedom of association and the right to bargain for employees could greatly benefit the Australian working population and provide real wage growth in inflation affected markets. Maintaining bodies like the FWC ensures fairness for both employers and employees, whilst limiting Fair Work’s power to legally affect actions would ultimately provide fairer outcomes for employees, ease the load for statutory bodies, whilst ensuring employers are not taking advantage. For Australia to see an uptake in union involvement and prevent wage stagnation, it must burrow from Sweden: fewer restrictions on strikes, sector-wide bargaining and incentives for union growth — while maintaining current safeguards against exploitation.

23 Lindelle (n 17).

24 Medlings-Institutet, The Swedish model & collective agreements (2023 Report).

25 Petter Hällberg and Christian Kjellström, Collective Agreements and Minimum Wages: A Report from the Swedish National Mediation Office (Swedish National Mediation Office, 2023).

26 Volodya Vagner, ‘Sweden’s Unions Need to Wake Up to New Forms of Exploitation’, Jacobin (Sweden, 30 April 2024).

27 Fair Work Legislation Amendment (Protecting Worker

An Approach to Analysing the Feasibility

ToF Applying norwEgian

prison policiEs in AuStraliA

by ALEJANDRA ESCOBAR

his article focuses on how some of the Norwegian prison policies could be applied, focusing on the conditions necessary for such implementation. This allows for a comparative analysis that allows for the identification of the differences and challenges that may arise for the Australian prison system, outlining the complexities established for the two systems. This article will analyse how Norwegian policies manage to maintain low crime rates, low recidivism among former inmates, high rates of social and vocational rehabilitation for prisoners, and the disruptiveness of their corrective measures. In contrast, the more punitive Australian model will be compared. It will also compare their expenses and specific features.

Prison Culture and Institutional Racism

To implement a policy like Norway's in Australia, the entire prison system must understand that imprisonment is in itself a punishment for those incarcerated. Therefore, it is necessary to relieve the penal system of the heavy ideological burden borne by the police, judicial, and government apparatus in general, which has allowed the gaps between prisoners' different origins to remain unreduced, leading the system to house 15 times more Indigenous prisoners than non-Indigenous people. This is even more alarming when considering that Indigenous peoples represent approximately 3% of Australia's total population. With these data broken down, the

universe of inmates would be 29% Indigenous adult inmates and 65% Indigenous youth, for a total of 2,481 prisoners per 100,000 Indigenous people.1

Understanding both this situation and the statistics could lead to an understanding that punishment with deprivation of liberty is sufficient and that the Norwegian model also represents a challenge in changing the mindset of prisoners and the entire system in general.

The Royal Commission into Indigenous Deaths in Custody, identified racism systematically ingrained in individuals and specific institutions which developed practices against communities based on protectionist and assimilation policies. In Australia it has been hidden in plain sight due to more subtle and difficult to detect structural racism.

Similarly, the Commission's report in the 1990s has perpetuated this structural racism, based on the paternalism of social policies, which have tightened the conditions of assistance and increased surveillance of Indigenous communities, leading to their increased criminalisation, where greater punitive actions have disproportionately affected Indigenous communities.2 This reinforces the marginalisation and incarceration of vulnerable populations, exposing a web of racism that links the judicial system and social welfare within an institutional structure that continues to perpetuate historical inequalities.3

2 Chris Cunneen, ‘Institutional Racism and (In) justice: Australia in the 21st Century’ (2019) 1(1) Decolonization of Criminology and Justice 29, 51 , 8 April 2025 <https://doi.org/10.24135/dcj.v1i1.9.>

Norwegian Model and Australian Model

The Norwegian rehabilitative model postulates that the only freedom that should be taken from prisoners is deprivation of liberty. Although this perspective may sound rather mild, Norway, a country with high standards of social welfare, seeks to provide more humane conditions and prevent prison conditions from being excessively punitive. This is achieved through the reintegration and rehabilitation of prisoners through protection and work in everyday life. Thus, this country has proven through social studies that inmates still feel the effects of incarceration, such as disconnection from the outside world, loss of autonomy, and severe limitations on their movements.

In contrast, based on the institutional racism described above, Australia tends to impose harsher sentences and greater punishment in its model. Although there is support for alternatives to incarceration (especially for youth and those with mental health), Australian prisons are less focused on rehabilitation. However, recent surveys indicate a shift in public perceptions toward investing in crime prevention. The article highlights that Norwegian systems, with shorter sentences and an important model that integrates community services within prisons, have managed to reduce stigma and promote social reintegration. This is a strategy that could benefit the Australian penal system.4

3 Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke University Press, 2020).

4 Tieman-Koster, ‘A Comparison of Open and

Rehabilitation, Sentencing, Social and Economic Policies

By making qualitative comparisons, it is possible to identify that Norway prioritises the rehabilitation and social reintegration of prisoners by providing conditions that encourage skills learning and preparation for life outside of prison. In contrast, Australia has a more traditional and punitive approach, which has caused its prison population to grow, contributing to higher recidivism rates. Although this growth is due to several factors, such as population growth and prevention and employability policies, among others, it is still worrying that the country's prison population grew by 81.5% from 2000 to 2023.5

Likewise, upon release, former inmates end up degrading their social skills, which leads to higher rates of recidivism. Add to this the rejection by society of inmates serving their sentences and the separation of inmates from their families, and social and professional environments. These instances demonstrate examples of structural damage to a significantly vulnerable group within society.

Finally, it is also important to understand the judicial implications, where an adequate prison system allows for optimal adaptation of the length of an inmate's sentence to their behaviour in prison, the type of crime, and their characteristics. This correct adaptation produces a series of benefits that benefit both the institutions, the inmates, and their environment. On the one hand, the inmate who manages to reduce the impact of the negative effects of

5 Numbeo,‘Criminalidad en Australia’ April 15 2025 <https://es.numbeo.com/criminalidad/ pa%25C3%25ADs/Australia.>

prison by shortening the time spent in it, on the one hand, the prisoner, because he manages to effectively intervene in the deficits detected upon admission, avoiding the development of functional and psychopathological alterations specific to confinement and family, social and work disconnection, and on society, because the sentence fulfils its purpose of special prevention to avoid recidivism and achieve higher rates of social reintegration.6

Conclusion

Long periods of incarceration increase the likelihood of being re-incarcerated, as the prison system is much harsher on repeat offenders, and they are subject to more stringent surveillance. Furthermore, the lack of social reintegration means that prisoners can struggle to fit into society, becoming alienated again and more likely to re-offend. If the experience of incarceration is not rehabilitative, a long prison sentence can further entrench the maladaptive behaviours perpetrated by inmates in prison.

However, due to the principle of state autonomy in Australia, having separate prison systems by state and territory could complicate the uniform implementation of Norwegian models. Therefore, adopting these systems would require a significant change in penal policies and greater investment in rehabilitation programs.

In short, while both open and closed systems offer potential benefits, implementing them in Australia would require overcoming cultural, social, and structural barriers, as well as adapting the models to the country's specific needs.

6 S Leganés Gómez, La evolución de la clasificación penitenciaria (Ministerio del Interior, Secretaría General Técnica, 2005).

The Full Bench 2025