02 August 2013

Hawke FOI Review

The Commonwealth Attorney-General has released the report [PDF] of the review by Dr Allan Hawke into the Freedom of Information Act 1982 (Cth) and the Australian Information Commissioner Act 2010 (Cth).

Hawke was required to report on those statutes by April this year and to consider -
a) the impact of reforms to freedom of information laws in 2009 and 2010, including the new structures and processes for review of decisions and investigations of complaints under the FOI Act, on the effectiveness of the FOI system; 
b) the effectiveness of the Office of the Australian Information Commissioner; 
c) the effectiveness of the new two-tier system of merits review of decisions to refuse access to documents and related matters; 
d) the reformulation of the exemptions in the FOI Act, including the application of the new public interest test, taking into account: (i) the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and (ii) the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government; 
e) the appropriateness of the range of agencies covered, either in part or in whole, by the FOI Act; 
f) the role of fees and charges on FOI, taking into account the recommendations of the Information Commissioner’s review of the current charging regime; and 
g) the desirability of minimising the regulatory and administrative burden, including costs, on government agencies. 
In summary, Hawke comments that
The Review finds that the reforms have been operating as intended and have been generally well-received. 
Many concerns in submissions raised issues not directly addressed by the 2009 and 2010 reform packages. 
Administration of FOI represents a significant cost and resource commitment for the Australian Government and its agencies. A key challenge for agencies, and for the OAIC, is to adopt and maintain practices to process FOI requests effectively and efficiently within their resources. 
Legislative and administrative changes to streamline FOI procedures, reduce complexity and increase capacity to manage FOI workload both by agencies and the OAIC are recommended. The Review also recommends changes and adjustments to the operation of the exemptions, fees and charges, and coverage of specific agencies. In making these recommendations, the Review focussed on ensuring that the right of access to government information remains as comprehensive as possible. 
There are exemptions for certain classes of documents and agencies. The Review believes that these are warranted despite their limiting effect on the release of government information. The most used exemption is the personal privacy exemption, being applied in 58% of cases where exemptions were used, or in 17.3% of FOI requests. 
The deliberative processes exemption was applied in 1.5% of requests and the Cabinet documents exemption in 0.5% of requests. This suggests that the use of these two exemptions, contrary to some views, is at a very low level.
His recommendations are -
R 1(a) – Further Comprehensive Review  –  a comprehensive review of the FOI Act be undertaken. 
R 1(b) – Further Comprehensive Review  – that  review might also consider interaction of the FOI Act with the Archives Act 1983, Privacy Act 1988 and other related legislation. 
Office of the Australian Information Commissioner (OAIC) 
R 2 – Online Status of FOI Reviews and Complaints  –  the OAIC consider establishing an online system which enables agencies and applicants involved in a specific FOI review or FOI complaint investigation to monitor progress of the review or complaint. 
Effectiveness of the New Two-Tier System of Review 
R 3 – Delegation of Functions and Powers  –  section 25 of the Australian Information Commissioner Act 2010 be amended to allow for the delegation of functions and powers in relation to review of decisions imposing charges under section 29 of the FOI Act. 
R 4 – Power to Remit Matters to Decision-maker for Further Consideration The Review recommends the FOI Act be amended to provide an express power for the Information Commissioner to remit a matter for further consideration by the original decision maker. 
R 5 – Resolution of Applications by Agreement  –  the FOI Act be amended to make it clear that an agreed outcome finalises an Information Commissioner review and in these circumstances a written decision of the Information Commissioner is not required. 
R 6 – Third Party Review Rights  –  the Act be amended to provide that only the applicant and the respondent are automatically a party to an Information Commissioner review. Any other affected person would be able to apply to be made a party to the review. 
R 7 – Extensions of Time  –  the Act be amended to: remove the requirement to notify the OAIC of extensions of time by agreement; and restrict the OAIC’s role in approving extensions of time to situations where an FOI applicant has sought an Information Commissioner review or made a complaint about delay in processing a request. 
R 8 – Agreement to Extension of Time Beyond 30 Days  –  section 15AA of the Act be amended to provide an agency or minister can extend the period of time beyond an additional 30 working days with the agreement of the applicant. 
R 9(a) – Extension of Time for Consultation on Cabinet-related Material –  the Act be amended to allow an agency to extend the period of time for notifying a decision on an FOI request by up to 30 working days where consultation with the Department of the Prime Minister and Cabinet on any Cabinet-related material is required. 
R 9(b)  – Extension of Time for Consultation on Cabinet-related Material  –  the Cabinet Handbook should be revised to accord with this recommendation. 
R 10 – Two-Tier External Review  –  the two-tier external review model be re-examined as part of the comprehensive review of the FOI Act. 
Reformulation of the FOI Act Exemptions 
R 11 – Law Enforcement and Public Safety  –  the exemption for documents affecting the enforcement of law and protection of public safety in section 37 of the Act be revised to include the conduct of surveillance, intelligence gathering and monitoring activities. This revision should also cover the use of FOI as an alternative to discovery in legal proceedings or investigations by regulatory agencies. 
R 12 – Cabinet Documents  –  the exemption for Cabinet documents be clarified by including definitions of ‘consideration’ and ‘draft of a document’. 
R 13 – Ministerial Briefings  –  the Act be amended to include a conditional exemption for incoming government and incoming minister briefs, question time briefings and estimates hearings briefings. 
R 14 – Information as to Existence of Documents  –  section 25 of the FOI Act be amended to cover the Cabinet exemption. 
Consideration of Specific Agencies Covered by the FOI Act 
R 15 – Parliamentary Departments  –  the Act be amended to make the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services subject to the Act only in relation to documents of an administrative nature. The Act should also be amended to provide an exclusion for the Parliamentary Librarian. 
R 16 – Exclusion of Australian Crime Commission from the FOI Act  –  the Australian Crime Commission be excluded from the operation of the Act. Section 7(2A) of the Act should be amended to refer to an ‘intelligence agency document’ of the Australian Crime Commission. 
R 17(a) – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act  –  he intelligence agencies remain in Part I of Schedule 2 to the FOI Act. The parts of the Department of Defence listed in Division 2 of Part I of Schedule 2 should also remain. 
R 17(b) – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act  – All other agencies currently in Part I of Schedule 2 should justify their exclusion from the FOI Act to the satisfaction of the Attorney-General. If they do not do this within 12 months, they should be removed. 
R 17(c)  – Review of Agencies Listed in Part I of Schedule 2 to the FOI Act –  the Attorney-General should also consider whether there is a need to include any other agencies in Schedule 2. 
R 18 – Criteria for Assessment of Agencies Exempt in Respect of Particular Documents  –  the Act contain criteria for assessment of agencies which are exempt from the FOI Act in respect of particular documents. 
R 19(a) – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act –  Section 47 of the Act be amended to make clear that it applies to documents that contain information about the competitive or commercial activities of agencies. 
R 19(b)  – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act – All agencies in Part II of Schedule 2 to the Act should justify their exclusion from the FOI Act to the satisfaction of the Attorney General. If they do not do so, they should be removed from Part II of Schedule 2. 
R 19(c) – Review of Agencies Listed in Part II of Schedule 2 to the FOI Act – The Attorney-General should also consider whether there is a need to include any other agencies in Part II of Schedule 2.    
R 20(a) – Review of Agencies Listed in Schedule 1 to the FOI Act  – Schedule 1 to the FOI Act be amended to repeal the bodies listed, as they no longer exist. 
R 20(b) – Review of Agencies Listed in Schedule 1 to the FOI Act – the Attorney-General should also consider whether there is a need to include any tribunals, authorities or bodies in Schedule 1. 
Fees and Charges 
R 21(a) – Administrative Access Schemes  – the OAIC consider the development of appropriate guidance and assistance to encourage agencies to develop administrative access schemes. 
R 21(b) – Administrative Access Schemes  – While the Review acknowledges the desirability of encouraging the use of administrative access schemes, it does not believe it appropriate for this to be done by reintroduction of application fees for FOI requests. 
R 22(a) – FOI Processing Charges – a flat rate processing charge should apply to all processing activities, including search, retrieval, decision-making, redaction and electronic processing. No charge should be payable for the first five hours of processing time. Processing time that exceeds five hours but is ten hours or less should be charged at $50 per hour. The charge for each hour of processing time after the first ten hours should be $30 per hour. 
R 22(b) – FOI Processing Charges –  current provisions for no processing charges for access to an applicant’s personal information and for waiver of charges should continue to apply. 
R 23(a) – FOI Access Charges  – a flat rate access charge should apply to all access supervision activities of $30 per hour and that no other access charges should apply. 23(b) The current provisions for no charges for access to an applicant’s personal information and for waiver of charges should continue to apply. 
R 24 – Ceiling on Processing Time for FOI requests  –  introduction of a 40 hour processing time ceiling for FOI requests. 
R 25 – Reduction and Waiver of FOI Charges  –  an agency should be able to waive or reduce charges in full, by 50% or not at all. However, it considers that it would be better for these options to be set out in guidelines rather than in the FOI Act itself and recommends the OAIC consider amending its guidelines accordingly. 
R25(b)  – Reduction and Waiver of FOI Charges  – the current requirement to consider whether access to a document would be in the general public interest or in the interest of a substantial section of the public should remain unchanged. 
26(a) – Reduction Beyond Statutory Timeframe –  adoption of a sliding scale for reduction of charges where decisions are not notified within statutory timeframes in accordance with recommendation 6 of the FOI Charges Review. 
R 26(b)  – Reduction Beyond Statutory Timeframe – No charge should be payable if the delay is longer than 30 working days. 
R 27(a) – Application Fees for Information Commissioner Review for Review of Access to Non-personal Information –  an application fee of $400 apply for a review of an FOI decision for access to non-personal information. This fee would be reduced to $100 in cases of financial hardship. 
R 27(b) – Application Fees for Information Commissioner Review of Access to Non-personal Information –  if  proceedings terminate in a matter favourable to the applicant, a $300 refund would apply. There would be no refund of the reduced fee. 
R 27(c)  – Application Fees for Information Commissioner Review of Access to Non-personal Information –  No fee would apply for an Information Commissioner review of an access grant decision by an affected third party.
R 27(d)  – Application Fees for Information Commissioner Review of Access to Non-personal Information –  In all other cases, fees would be payable for Information Commissioner review of decisions for access to non-personal information. 
R 27(e)  – Application Fees for Information Commissioner Review of Access to Non-personal Information –  no remission of the fee where an applicant has first sought internal review or where internal review is not available. 
R 28 – Indexation of Fees and Charges  – all fees and charges are adjusted every two years in accordance with the CPI based on the federal courts/AAT provision for biennial fee increases. 
R 29(a) – Timeframes for Applicants to Respond to Agency Decisions  –  an applicant should be required to respond within 30 working days after receiving a notice under section 29(8), advising of a decision to reject wholly or partly the applicant’s contention that a charge should not be reduced or not imposed. The applicant’s response should agree to pay the charge, seek internal review of the agency’s decision or withdraw the FOI request. 
R 29(b) – Timeframes for Applicants to Respond to Agency Decisions  –  If an applicant fails to respond within 30 working days (or such further period allowed by an agency) the FOI request should be deemed to be withdrawn. 
Minimising Regulatory Burden on Agencies 
R 30 – Practical Refusal Mechanism  – s 24AA(1)(b) of the Act be repealed to make it clear that the practical refusal mechanism can only be used after an applicant has provided information to identify the documents sought. 
R 31(a) – Time Periods in the FOI Act to be Specified in Working Days  –  where appropriate, the Act be amended so that time periods are specified in terms of ‘working days’ rather than calendar days. 
R 31(b)  – Time Periods in the FOI Act to be Specified in Working Days  – The timeframe for processing an FOI request (not taking into account any extensions of time) should be 30 working days. Provision should be made to exclude any period in which an agency is closed such as during the ‘shut-down’ period between Christmas and New Year. 
R 32 – Repeat or Vexatious Requests  –  the Act be amended to permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant can appeal against such a decision to the OAIC. 
R 33(a) – Anonymous Requests  –  the Act be amended so that an FOI request cannot be made anonymously or under a pseudonym. 
R 33(b) – Anonymous requests – It should be necessary for an applicant to provide an address in Australia. 
R 34 – Inspector-General of Intelligence and Security  –  the FOI Act and the Archives Act 1983 be amended to clarify procedural aspects concerning the Inspector-General of Intelligence and Security giving evidence in FOI and archive matters before the AAT and FOI matters before the Information Commissioner. 
R 35 – Amendment of Personal Records and the Archives Act – the FOI Act be amended to enable a personal record to be amended when the amendment is authorised under the Archives Act 1983
R 36 – Single Website for all Disclosure Logs  –  the disclosure log for each agency and minister should be accessible from a single website hosted by either the OAIC or data.gov.au to enhance ease of access. 
R 37 – Minimum Timeframe for Publication of Disclosure Log – there should be a period of five working days before documents released to an applicant are published on the disclosure log. However, it considers that it would be better for this to be set out in guidelines rather than in the Act itself and recommends the OAIC consider amending its guidelines accordingly. 
R 38 – Copyright  – the Government consider issues concerning the interaction of the Act and the potential impact that publication of third party material under the FOI Act may have on a copyright owner’s revenue or market. 
R 39 – Suspension of FOI Processing During Litigation  – the Act be amended so that the processing of an FOI request is suspended where the applicant has commenced litigation or there is a specific ongoing law enforcement investigation in progress. 
R 40 – Backup Tapes  –  the Act be amended so that a search of a backup system is not required, unless the agency or minister searching for the document considers it appropriate to do so.

Cultural Elites and Copyright

What about the no-brows?

'Copyright and Cultural Capital' by Xiyin Tang in (2013) Rutgers Law Review offers an - to my mind unpersuasive - analysis of copyright and class.

Tang's article
explores the oft-ignored relationship between copyright law and class stratification. Copyright law widens and perpetuates the gulf between the elite and the masses in three ways. First, within copyright doctrine, the values of originality, lone artistic creation, and a fetishism of the original over the copy (evident in the Visual Artists Rights Act of 1990) align with the American high-brow's claim to avant-garde newness, utter originality, and the demoted status of art forms dependent on copies (chromolithography, photography, industrial arts). Second, copyright's legal remedies — including control over rote copying and the derivative works right — facilitate the high-brow's obsession with limited production and against appropriation ("watering down") by the middle brow and low brow. Third, a copyright holder’s monopoly power puts a high price on cultural fluency that may be impossible to achieve for those in emerging economies and the less affluent. In this way, copyright law incorporates, perpetuates, and exacerbates the cultural and capitalist class divide. As the late '80s and early '90s gave way to what I term a reverse-culturalization, or, the high-brow appropriating from the low-brow and making it high art, the relevance of copyright to the domestic artistic elite has diminished. Instead, copyright is now being deployed by big Hollywood studios and the recording industry as a means of denying equal access to knowledge in foreign countries. If the sociologist Pierre Bourdieu had written many years ago that it is only the rich, upper-class who can afford to engage in limited production or the coded literary language of high-brow culture, we are now seeing that adage playing itself out on the global arena in relation to culture as a whole — with copyright as its means of separating the cultural elite from the culturally less affluent.
Tang concludes -
Much of this Article has focused on the seemingly illogical fact that copyright law, almost always viewed as a facilitator of greed by Hollywood and the recording industries, can also serve a much “loftier” purpose: ensuring the artistic integrity of a work of “high” art. Ironically, then, the profit-via-proliferation model of copyright is unimportant to high artists (if indeed the relationship between profit-making and cultural status is inverse as Bourdieu claimed) — it is the control aspect that they care about. For if having dominion over the right to make copies can result in more profits (which was what the founding fathers contemplated when they drafted the Copyright Clause), it could also allow an author to choose not to make copies at all, or to limit them. This certainly is the method that Macdonald would champion — and if the masscults below printed and distributed copies of his beloved Partisan Review, he would be incensed not because he was denied the right to make money off those copies—but because those copies have diluted the sacred highbrow status of Partisan’s small circulation. 
The passage of the Visual Artists Rights Act of 1990 a few years ago as a subset of American copyright law lends new credence to the idea that Macdonald’s vision of a lofty art unmarred by others’ uncultured hands continues to prevail today. VARA, after all, is premised on the belief that the artwork is perfect as the artist intended it, and symbolizes the ultimate form of despotic dominion and control by preventing any modification, alteration, or mutilation of an artwork altogether (leading some scholars to call it “elitist”). Yet copyright law today certainly serves a much more ambivalent relationship to the high-art artist: it both protects the purity of an artist’s vision as it also antagonizes the new form of appropriation art. But whereas the American highbrow will undoubtedly continue to exist via an entire network of cultural vetting—critics, museums, “highbrow” publications—the American masscult will likely continue to wage its war against developing countries in a game where money for cultural goods represents ransom in return for becoming a fully-formed, global citizen—not just of the purse, but in the deeper sense of the enriched mind. 
Bourdieu was unique in recognizing that cultural power “is closely intertwined with—but not reducible to — economic and political power,” and thus “serves a legitimating function” unique and apart from the economic and political.  In many ways, cultural capital presents the greatest barrier to a true equality vision of democracy because it works in less obvious, more invidious, ways than political and economic power. As political speech is still the core First Amendment protection and most cultural goods are locked down by copyright (with the blessing of the Court), our willingness to demote cultural fluency as somehow less important toward the makings of a fully participatory citizen means that methods of gate-keeping in preserving the high-brow or even masscult culture can continue to exist unabated.  As emerging economies begin to burgeon with newly-minted wealth and conspicuous consumption, the elite upper-class can rely on other methods of separating the vulgar rich from the truly so: via knowledge itself. 
In recent years, there has been a proliferation of defenses of humanism — that is, the pursuit of knowledge for its own sake and not as a means toward attaining more wealth or social status — aided, no doubt, by recession-era concerns about the lack of jobs for liberal-arts graduates.  Such defenses, most commonly published in Macdonald’s then-favored, probably still-favored publication The New Yorker, evinces a beautiful desire about the will toward human enrichment absent some grotesque economic motive, divorced from even the more democratic ideal of increasing one’s share of power in a world where power is unequally distributed. Such humanist pleas are oftentimes compelling, soulful, and beautiful, such as when New Yorker staff writer Adam Gopnik wrote:
What really is lost [in the emphasis on status and power] is the horizon of the good life that is included in what we have called, since the Renaissance—humanism—the belief that, while our lives may be devoted to happiness, they're impoverished without an idea of happiness deeper than mere property-bound prosperity. The special virtue of freedom is not that it makes you richer and more powerful but that it gives you more time to understand what it means to be alive.
We are aptly moved by such beliefs in the beauty of knowledge itself, yet what is missing from such humanist accounts is the idea that many simply cannot afford to dwell on such lofty endeavors. Humanism—the belief that in art, literature, music, and film resides a certain kind of truth unparalleled in all other economic-bound pursuits, carries with it the Renaissance idea of the bourgeoisie—rich enough to idle in salons, free enough to forsake the vulgarities of money. But not everyone may be so lucky. Capitalism and culture are necessarily intertwined.


In ACP Machinery Australia Pty Ltd v Aerospace Technologies of Australia Ltd (No 3) [2013] FCA 718 the Federal Court of Australia FCA has declared that Boeing Aerostructures Australia infringed copyright of a manufacturer of machine tools for the Boeing aircraft when Boeing reproduced and handed to another company the technical drawings of a custom-built 'universal holding fixture' developed by that manufacturer.

ACP Machinery Australia Pty Ltd (ACP) sought injunctions and damages against Aerospace Technologies of Australia Limited (ASTA) and Boeing Aerostructures Australia Pty Ltd (BAA), for what were alleged to be breaches of contract and infringements of copyright. The contract was made in 2001; the works alleged to be protected by copyright were created at about the same time. At the time, the party with whom ACP dealt, and contracted, was ASTA. In October 2003 the business of ASTA was sold to BAA, then named Hawker de Havilland Aerospace Pty Ltd. No party in the proceedings suggests that any material difference was made by these reorganisations, with the respondents defending ACP’s allegations as though BAA now is the embodiment of, and responsible for the agreements and actions of, ASTA.

The FCA refused the manufacturer's other claim for infringement and damages for breach of contract because court held that the manufacturer was unable to substantiate its claims.

31 July 2013

Workplace Surveillance

'In Defense of Snooping Employers' by Jessica Fink argues that
In recent months, a plethora of [US] states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the "social media privacy" of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers’ efforts to monitor their employees’ email, Internet and telephone usage. Employees rage about perceived invasions of their privacy. Politicians heatedly debate how to limit employers’ prying conduct, passing laws designed to reign in certain types of monitoring by employers. At the same time, employers also find themselves perplexed, as they grapple with how they can gather the information that they need to make important business decisions within an environment that views such efforts with disdain. In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy. 
This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to "snoop" into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees. 
At bottom, this paper attempts to put the "problem" of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.

30 July 2013


In Candy v Bauer Media Ltd [2013] NSWSC 979 the Supreme Court of New South Wales has dismissed an application for an injunction to restrain the publication of photographs - taken on a yacht off the Italian coast - showing actress Holly Rachel Candy in an advanced state of pregnancy.

The Court held that there was no reasonable means of preventing the widespread distribution and publication of Woman's Day, the magazine containing the photographs. The fundamental principle was that orders for injunction should only be made where they can be enforceable or where they can reasonably achieve the objective which was intended.

Pembroke J commented that
At a final hearing, the plaintiff may, in due course, be entitled to recover substantial damages for breach of confidence. The issue for me is whether, assuming that there is a serious question to be tried, there is any utility in granting the injunction sought by the plaintiff in the circumstances that have transpired. Those circumstances persuade me that it is now too late to issue the injunction which the plaintiff seeks. 
It may well be that the defendant has acted hastily, possibly even flagrantly, knowing of its potential liability to the plaintiff for breach of confidence. I need not decide that. But the practical reality is that no reasonable means of preventing the widespread distribution and publication of the Woman's Day magazine containing the offending photographs was revealed to me. 
Indeed, the submissions as to what should be done bordered from time to time on the surreal. Woman's Day has approximately 27,870 subscribers who receive the issue by post. The defendant uses a third party mail house to bag, label and lodge subscription copies with Australia Post. The postal subscription copies were received by the mail house at approximately 9am on 19 July and were lodged with Australia Post at approximately 2.30pm on that day. Those postal subscription copies are in the course of distribution and there is no practical means by which the defendant can retrieve them from Australia Post. 
A variety of speculative submissions was put to me as to what might be done to endeavour to prevent the distribution to subscribers of 27,870 copies of the magazine. I cannot see how that can be achieved and I cannot see how I can make any sensible, practical or useful order that might assist that objective. 
In addition to the postal subscription process, the Woman's Day magazine is distributed to approximately 5,000 retail outlets across Australia. After copies of the magazine are bound, they are transported by contractors by road to distribution centres in each state to ensure the magazine is available for sale by retailers on Monday morning. Except for New South Wales and Victoria, each distribution centre throughout Australia is operated by an independent contractor and is not controlled by the defendant. At the distribution centres copies of the magazine are packed and labelled for further distribution to individual retailers according to the quantity required by those retailers. Some of those bundles only contain copies of the Woman's Day magazine, but many of them contain a number of different magazines published by various publishers. Furthermore, to make any attempt to stop the process even more difficult, distribution to retailers is carried out by a range of different contractors and sub-contractors, none of whom was able to be identified in the evidence. 
The process of distribution has occurred in all States at different rates of progress. In Queensland country areas, copies of the magazine were dispatched to the Queensland distribution centre at approximately 5pm on 19 July. Packing of the magazine into retailer bundles commenced at 11am this morning and the magazine has commenced to be transported from the distribution centre to individual retailers throughout Queensland including in mixed bundles. Naturally, it was not possible to identify the retailers to whom the retailer bundles have been transported. Nor was it possible to identify the contractors and sub-contractors engaged in that process of transportation.
Pembroke J went on to state that
I make it quite clear that the conduct of the defendant is disdainful. It clearly puts a premium on its own commercial advantage ahead of the privacy of the plaintiff. I have no doubt that not all publishers would have acted in the same way. This is particularly so given that the licensor to the defendant notified it that it had chosen to withdraw its licence. The licensor assumed wrongly, it now turns out, that the publication of the photographs by the defendant would not subsequently occur. 
Pragmatic Considerations 
The question which reluctantly causes me to refuse the application is a pragmatic one. There is a fundamental principle under which this Court operates. That principle is that orders should only be made where they can be enforceable; where they can reasonably achieve the objective which is intended. If orders are made which lack utility, the effect will be to reduce the respect of the public for orders of the Court. There is simply no point making orders which are futile in the circumstances. 
I do not accept the argument that in some way it is a ground for granting the injunction, that by making orders the Court may at least reduce the number of copies of the magazine containing the photographs which are distributed to the public. On the evidence before me this afternoon, over 100,000 copies of the magazine will be distributed. It is impossible to see how any of them could be prevented from being read and disseminated. If the objective of the plaintiff is to protect her own opportunity to reveal the fact of her pregnancy at a time of her choosing, then that opportunity has been lost by the events which have occurred. There is no point in restraining the defendant from further distributing copies that remain as part of the print run for this issue. 
I make it clear that I am abundantly satisfied there is a serious question to be tried as to the plaintiff's underlying cause of action. She will, however, have to address that cause of action in a claim for damages. The conduct of the defendant, having had notice since 18 July of her claim, may well be regarded as exacerbating the situation. It may well enhance her claim for damages. That will be a matter for the judge at a final hearing.

29 July 2013

IP and IT Pricing

The House of Representatives Standing Committee on Infrastructure and Communications has released At what cost? IT pricing and the Australia Tax, its report about IT pricing.

The Committee was to
  • inquire whether a difference in prices exist between IT hardware and software products, including computer games and consoles, e-books and music and videos sold in Australia over the internet or in retail outlets as compared to markets in the US, UK and economies in the Asia-Pacific; 
  • Establish what these differences are; 
  • Determine why these differences exist; 
  • Establish what the impacts of these differences might be on Australian businesses, governments and households; and 
  • Determine what actions might be taken to help address any differences that operate to the disadvantage of Australian consumers.
The report states that
The importance of IT products to every sector of Australian society can hardly be overstated. IT products are woven into the fabric of our economy and society, and have driven rapid change in the way Australians communicate, the way we work, and the way we live.
Australian consumers and businesses, however, must often pay much more for their IT products than their counterparts in comparable economies. In many cases Australians pay 50 to 100% more for the same product. 
Consumer and business concern over IT price differences prompted the Minister for Broadband, Communications and the Digital Economy, Senator the Hon. Stephen Conroy, to refer the question of IT pricing in Australia to the House of Representatives Standing Committee on Infrastructure and Communications for an inquiry and report.
Evidence presented to this inquiry left little doubt about the extent and depth of concern about IT pricing in Australia. Consumers are clearly perplexed, frustrated and angered by the experience of paying higher prices for IT products than consumers in comparable countries. 
High IT prices make it harder for Australian businesses to compete internationally and can be a significant barrier to access and participation for disadvantaged Australians (in particular Australians with a disability).
Based on the evidence received over a 12 month inquiry, the Committee has concluded that in many cases, the price differences for IT products cannot be explained by the cost of doing business in Australia. Particularly when it comes to digitally delivered content, the Committee concluded that many IT products are more expensive in Australia because of regional pricing strategies implemented by major vendors and copyright holders. Consumers often refer to these pricing strategies as the ‘Australia tax’.
While the Committee recognises that businesses must remain free to set their own prices in a market economy, it has nonetheless made a range of recommendations that are intended to sharpen competition in Australian IT markets. The Committee hopes that these measures will increase downward pressure on IT prices and improve the access of Australian businesses and consumers to cheaper IT products. 
Given the ever-increasing importance of IT products to Australian society and the economy – in driving innovation, reducing isolation in regional and rural Australia, or improving the lives of Australians with a disability – it is essential that Australians get a fair deal.
In response the Committee recommends -
Price discrimination and consumer impacts 
R 1 The Committee recommends that the ABS develop a comprehensive program to monitor and report expenditure on IT products, hardware and software, both domestically and overseas, as well as the size and volume of the online retail market. 
R 2 Considering the importance of IT products to education, and in the interests of greater transparency in this area, the Committee recommends that the Australian Government, in consultation with Universities Australia and CAUDIT, conduct a comprehensive study of the future IT needs of and costs faced by Australian Universities, in order to provide clearer financial parameters for negotiations. 
R 3 The Committee recommends that the Australian Government consider a whole-of-government accessible IT procurement policy, to be developed by relevant agencies including AGIMO, and in consultation with relevant stakeholder groups including ACCAN. 
Copyright, circumvention, competition, and remedies 
R 4 The Committee recommends that the parallel importation restrictions still found in the Copyright Act 1968 (Cth) be lifted, and that the parallel importation defence in the Trade Marks Act 1995 (Cth) be reviewed and broadened to ensure it is effective in allowing the importation of genuine goods. 
R 5 The Committee recommends that the Australian Government amend the Copyright Act’s section 10(1) anti-circumvention provisions to clarify and secure consumers’ rights to circumvent technological protection measures that control geographic market segmentation. 
R 6 The Committee further recommends that the Australian Government investigate options to educate Australian consumers and businesses as to:
  • the extent to which they may circumvent geoblocking mechanisms in order to access cheaper legitimate goods; 
  • the tools and techniques which they may use to do so; and 
  • the way in which their rights under the Australian Consumer Law may be affected should they choose to do so.
R 7 The Committee recommends that the Australian Government, in conjunction with relevant agencies, consider the creation of a ‘right of resale’ in relation to digitally distributed content, and clarification of ‘fair use’ rights for consumers, businesses, and educational institutions, including restrictions on vendors’ ability to ‘lock’ digital content into a particular ecosystem. 
R 8 The Committee recommends the repeal of section 51(3) of the Competition and Consumer Act 2010
R 9 The Committee recommends that the Australian Government consider enacting a ban on geoblocking as an option of last resort, should persistent market failure exist in spite of the changes to the Competition and Consumer Act and the Copyright Act recommended in this report. 
R 10 That the Australian Government investigate the feasibility of amending the Competition and Consumer Act so that contracts or terms of service which seek to enforce geoblocking are considered void.