A Submission to the Senate Legal and Constitutional Affairs Committee on the Copyright Amendment (Online Infringement) Bill 2015 (Cth)

The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect,recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull. In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don’t make money: * Complaining about piracy. * Calling your customers thieves. * Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. This submission considers a number of key elements of the Coalition Government’s Copyright Crackdown. Part 1 examines the proposals in respect of the Copyright Amendment (Online Infringement) Bill 2015 (Cth). Part 2 focuses upon the proposed Copyright Code. Part 3 considers the question of safe harbours for intermediaries. Part 4 examines the question of copyright exceptions – particularly looking at the proposal of the Australian Law Reform Commission for the introduction of a defence of fair use. Part 5 highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law.

Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

Debate on statutory control of the surveying profession in Queensland : 1907 to 1975

This article was written in 1997. After a 2009 review the content was left mostly unchanged - apart from this re-written abstract, restructured headings and a table of contents. The article deals directly with professional registration of surveyors; but it also relates to government procurement of professional services. The issues include public service and professional ethics; setting of professional fees; quality assurance; official corruption; and professional recruitment, education and training. Debate on the Land Surveyors Act 1908 (Qld) and its amendments to 1916 occurred at a time when industrial unrest of the 1890s and common market principles of the new Commonwealth were fresh in peoples’ minds. Industrial issues led to a constitutional crisis in the Queensland’s then bicameral legislature and frustrated a first attempt to pass a Surveyors Bill in 1907. The Bill was re-introduced in 1908 after fresh elections and Kidston’s return as state premier. Co-ordinated immigration and land settlement polices of the colonies were discontinued when the Commonwealth gained power over immigration in 1901. Concerns shifted to protecting jobs from foreign competition. Debate on 1974 amendments to the Act reflected concerns about skill shortages and professional accreditation. However, in times of economic downturn, a so-called ‘chronic shortage of surveyors’ could rapidly degenerate into oversupply and unemployment. Theorists championed a naïve ‘capture theory’ where the professions captured governments to create legislative barriers to entry to the professions. Supposedly, this allowed rent-seeking and monopoly profits through lack of competition. However, historical evidence suggests that governments have been capable of capturing and exploiting surveyors. More enlightened institutional arrangements are needed if the community is to receive benefits commensurate with sizable co-investments of public and private resources in developing human capital.

Patriarchal whiteness, self-determination and Indigenous women : the invisibilty of structural priviledge and the visability of oppression

Indigenous self-determination is the recognised right of all peoples to freely determine their political status, and pursue their economic, social and cultural development. Unfinished Constitutional Business? offers fresh insights into the ways communities can chart their own course and realise self-determination. Because the history of colonisation is emotionally charged, the issue has been clouded by a rhetoric that has sometimes obstructed analysis.

Democracy, participation and convergent media : case studies in contemporary online news journalism in Australia

The shift from 20th century mass communications media towards convergent media and Web 2.0 has raised the possibility of a renaissance of the public sphere, based around citizen journalism and participatory media culture. This paper will evaluate such claims both conceptually and empirically. At a conceptual level, it is noted that the question of whether media democratization is occurring depends in part upon how democracy is understood, with some critical differences in understandings of democracy, the public sphere and media citizenship. The empirical work in this paper draws upon various case studies of new developments in Australian media, including online- only newspapers, developments in public service media, and the rise of commercially based online alternative media. It is argued that participatory media culture is being expanded if understood in terms of media pluralism, but that implications for the public sphere depend in part upon how media democratization is defined.

Cosmopolitanism, the nation-state and imaginative realism

Contemporary writing on cosmopolitanism has asserted the need for a new sociological toolkit to deal with an emergent post-national social order. At the heart of this agenda is a misunderstanding about the role of the nation-state, which has led to some rather unhelpful theorizations. The state is assumed to be a dead hand in the development of post-national sentiments or an increasingly irrelevant social structure. We argue that the superseding of the nation-state is not necessary for the development of cosmopolitan sentiments of solidarity. In addition to classical sociology, it is work surrounding the concepts of cosmopolitan democracy and constitutional patriotism and the public sphere that can assist us in theorizing cosmopolitanism. What distinguishes this tradition is the utilization of social science concepts such as democracy, state, public sphere and law in an attempt to ground the idea of cosmopolitanism within the context of existing social structures.

A summary view of government cost recovery policies in Australia and New Zealand relating to the supply of public sector information

Researching administrative history is problematical. A trail of authoritative documents is often hard to find; and useful summaries can be difficult to organise, especially if source material is in paper formats in geographically dispersed locations. In the absence of documents, the reasons for particular decisions and the rationale underpinning particular policies can be confounded as key personnel advance in their professions and retire. The rationale for past decisions may be lost for practical purposes; and if an organisation’s memory of events is diminished, its learning through experience is also diminished. Publishing this document tries to avoid unnecessary duplication of effort by other researchers that need to venture into how policies of charging for public sector information have been justified. The author compiled this work within a somewhat limited time period and the work does not pretend to be a complete or comprehensive analysis of the issues.----- A significant part of the role of government is to provide a framework of legally-enforceable rights and obligations that can support individuals and non-government organisations in their lawful activities. Accordingly, claims that governments should be more ‘business-like’ need careful scrutiny. A significant supply of goods and services occurs as non-market activity where neither benefits nor costs are quantified within conventional accounting systems or in terms of money. Where a government decides to provide information as a service; and information from land registries is archetypical, the transactions occur as a political decision made under a direct or a clearly delegated authority of a parliament with the requisite constitutional powers. This is not a market transaction and the language of the market confuses attempts to describe a number of aspects of how governments allocate resources.----- Cost recovery can be construed as an aspect of taxation that is a sole prerogative of a parliament. The issues are fundamental to political constitutions; but they become more complicated where states cede some taxing powers to a central government as part of a federal system. Nor should the absence of markets be construed necessarily as ‘market failure’ or even ‘government failure’. The absence is often attributable to particular technical, economic and political constraints that preclude the operation of markets. Arguably, greater care is needed in distinguishing between the polity and markets in raising revenues and allocating resources; and that needs to start by removing unhelpful references to ‘business’ in the context of government decision-making.

Digital constitutionalism and the role of the rule of law in the governance of virtual communities

This project proposes a new conceptual framework for the regulation of social networks and virtual communities. By applying a model based upon the rule of law, this thesis addresses the growing tensions that revolve around the public use of private networks. This research examines the shortcomings of traditional contractual governance models and cyberlaw theory and provides a reconstituted approach that will allow public constitutional-type interests to be recognised in the interpretation and enforcement of contractual doctrine.

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Introduction

The 1990s saw the United Nations, the militaries of key member states, and NGOs increasingly entangled in the complex affairs of disrupted states. Whether as deliverers of humanitarian assistance or as agents of political, social, and civic reconstruction, whether in Somalia, Bosnia, Kosovo, or East Timor, these actors have had to learn ways of interacting with each other in order to optimize the benefits for the populations they seek to assist. Yet the challenges have proved daunting. Civil and military actors have different organizational cultures and standard operating procedures and are confronted with the need to work together to perform tasks to which different actors may attach quite different priorities. From Civil Strife to Civil Society explores the nature of these challenges, blending the experience of scholars and practitioners. It is underpinned by an understanding that recovery from disruption is a laborious process that can easily be de-railed. The first part of the book offers a rigorous examination of the dimensions of state disruption and the roles of the international community in responding to it; the second part looks at military doctrine for dealing with disorder and humanitarian emergencies; the third part examines mechanisms for ending violence and delivering justice in post-conflict times; the fourth part investigates the problems of rebuilding trust and promoting democracy; the fifth part deals with the reconstitution of the rule of law; while the sixth and seventh parts address the reestablishment of social and civil order.

Toothless tiger, sleeping dragon : implied freedoms, internet filters and the growing culture of internet censorship in Australia

The internet by its very nature challenges an individual’s notions of propriety, moral acuity and social correctness. A tension will always exist between the censorship of obscene and sensitive information and the freedom to publish and/or access such information. Freedom of expression and communication on the internet is not a static concept: ‘Its continual regeneration is the product of particular combinations of political, legal, cultural and philosophical conditions’.

Democracy, participation and convergent media : case studies in contemporary online news journalism in Australia

The shift from 20th century mass communications media towards convergent media and Web 2.0 has raised the possibility of a renaissance of the public sphere, based around citizen journalism and participatory media culture. This paper will evaluate such claims both conceptually and empirically. At a conceptual level, it is noted that the question of whether media democratization is occurring depends in part upon how democracy is understood, with some critical differences in understandings of democracy, the public sphere and media citizenship. The empirical work in this paper draws upon various case studies of new developments in Australian media, including online- only newspapers, developments in public service media, and the rise of commercially based online alternative media. It is argued that participatory media culture is being expanded if understood in terms of media pluralism, but that implications for the public sphere depend in part upon how media democratization is defined.

Democracy, participation and convergent media : case studies in contemporary online news journalism in Australia

The shift from 20th century mass communications media towards convergent media and Web 2.0 has raised the possibility of a renaissance of the public sphere, based around citizen journalism and participatory media culture. This paper will evaluate such claims both conceptually and empirically. At a conceptual level, it is noted that the question of whether media democratization is occurring depends in part upon how democracy is understood, with some critical differences in understandings of democracy, the public sphere and media citizenship. The empirical work in this paper draws upon various case studies of new developments in Australian media, including online-only newspapers, developments in public service media, and the rise of commercially based online alternative media. It is argued that participatory media culture is being expanded if understood in terms of media pluralism, but that implications for the public sphere depend in part upon how media democratization is defined.

Value for money : procuring infrastructure

Australia is just one of many developed countries facing the challenge of delivering value for money in the provision of a substantial infrastructure pipeline amidst severe construction and private finance constraints. To help address this challenge, this chapter focuses on developing an understanding of the determinants of value at key procurement decision points that range from the make-or-buy decision, to buying in the context of market structures, including the exchange relationship and contractual arrangement decision. This understanding is based on theoretical pluralism and illustrated by research in the field of construction and maintenance, and in public-private partnerships.