Australian Law Reform Commission Research Articles

Comments on ALRC Discussion Paper 79, Copyright and the Digital Economy

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated type exception in Australia, and other related issues. The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be made about whether a particular use is fair; certainly experienced practitioners make such judgments daily. But fair use decisions are often complicated, and advice frequently depends as much on the amount of risk the user is willing to undertake as it does on the evaluation of the substantive law. Our point is not that fair use caselaw absolutely resists synthesis, but rather that the synthesis most successfully occurs at a high level of abstraction; individual actors, by contrast, need to know whether their particular plans will run afoul of the law. Legal literature has seen many attempts over the years to simplify or clarify fair use, both descriptive and prescriptive. But it would be premature to conclude that the law of fair use is or soon will be coherent and predictable. Guidelines could theoretically help in interpreting fair use, but the weight and value of guidelines depends on how they were developed.The ALRC Discussion Paper’s proposals could result in a broader fair use doctrine in Australia than in the US. Notably, fair use in Australia, as in the US, would exempt certain uses without countervailing compensation. But the proposed Australian version may embrace a greater range of commercial actors, thus altering the balance. The proposals include additional illustrative purposes; they would also permit commercial users to stand in the shoes of clients entitled to exceptions. The ALRC also proposes that contracts or contract provisions that attempt to bargain around library exceptions and certain fair use exceptions would be unenforceable. In the US, contracts concerning copyrighted materials are usually upheld. As a general rule, contract preemption does not serve to invalidate contract provisions that limit the exercise of copyright exceptions, and the doctrine of copyright misuse does so only in the most egregious of cases.Finally, in the US there is no exemption from anti-circumvention of technological access controls for such broad purposes as exercising fair or making noninfringing use. Certain narrow fair uses have been deemed exceptions pursuant to a triennial rulemaking conducted by the Copyright Office, but those exceptions must be revisited every three years.

The Copyright Tribunal As Exception-Maker: Are Both Flexibility and Certainty Achievable?

This article proposes an approach to address the current fair use impasse in Australia. This is by the conferral of delegated legislative power upon the Copyright Tribunal of Australia for it to periodically determine new public interest exceptions. The reform would require, for separation of powers reasons, that the Tribunal be reconstituted to perform such a legislative function. The proposal is one that navigates a course between the current law and the open slather adoption of US-style fair use recommended by the Australian Law Reform Commission by creating a public interest rule-making power within an existing Australian copyright institution. It is also proposed to use as the vehicle for the delegation of power an overhauled section 200AB, so that the three-step test no longer nakedly applies in domestic law, but instead operates as criteria to inform the legislative choices of the Tribunal.

Should Australia Ban the Use of Genetic Test Results in Life Insurance?

Under current Australian regulation, life insurance companies can require applicants to disclose all genetic test results, including results from research or direct-to-consumer tests. Life insurers can then use this genetic information in underwriting and policy decisions for mutually rated products, including life, permanent disability, and total income protection insurance. Over the past decade, many countries have implemented moratoria or legislative bans on the use of genetic information by life insurers. The Australian government, by contrast, has not reviewed regulation since 2005 when it failed to ensure implementation of recommendations made by the Australian Law Reform Commission. In that time, the Australian life insurance industry has been left to self-regulate its use of genetic information. As a result, insurance fears in Australia now are leading to deterred uptake of genetic testing by at-risk individuals and deterred participation in medical research, both of which have been documented. As the potential for genomic medicine grows, public trust and engagement are critical for successful implementation. Concerns around life insurance may become a barrier to the development of genomic health care, research, and public health initiatives in Australia, and the issue should be publicly addressed. We argue a moratorium on the use of genetic information by life insurers should be enacted while appropriate longer term policy is determined and implemented.

Confronting words: Driving a new legal lexicon of disability

In July 2013, the Australian Law Reform Commission (ALRC) was given Terms of Reference to consider the recognition of people with disability before the law and their exercise of legal capacity on an equal basis. In considering what, if any, changes to Commonwealth law could be made, the ALRC was directed to consider, among other things, ‘the language used in laws and legal frameworks’.

The need for an intrusion upon seclusion privacy tort within English law

In the United States, New Zealand and the Canadian province of Ontario, recognition has been afforded to privacy torts remedying intrusions upon seclusion or solitude, and the creation of such a tort has also been recommended by the Australian Law Reform Commission. In England and Wales, recognition has so far only been afforded to a privacy tort remedying misuse of private information. This article considers the current prospects for the recognition of an intrusion upon seclusion tort within English law. It will be suggested that there is less necessity for such recognition following the apparent recent confirmation by the decisions in Gulati v MGN and Vidal-Hall v Google that misuse of private information claims may still be brought where there is no ensuing publication of wrongly acquired private information. Given that intrusions commonly result in the acquisition of private information, it will be suggested that many of the privacy interests protected by the intrusion torts in other jurisdictions may now therefore be protected in English law through a claim for misuse of private information.

Best Practice for Estimating Elder Abuse Prevalence in Australia: Moving towards the Dynamic Concept of ‘Adults at Risk’ and away from Arbitrary Age Cut-Offs

In June 2017, the Australian Law Reform Commission (‘ALRC’) released the Inquiry on Protecting the Rights of Older Australians from Abuse. A national elder abuse prevalence study was a key recommendation to: (1) measure the extent of this problem within Australia; (2) help arrange availability and demand for resources, and responses delivered by statutory authorities and organisations; and (3) evaluate the effectiveness of services designed to prevent elder abuse (ALRC 2017). In the past, elder abuse prevalence research has relied on age ‘cut-offs’ to determine the older population and what proportion of this population has experienced abuse. This comment questions the validity of using static age ‘cut-offs’ in measuring elder abuse and suggests a move forward to dynamic measures of risk for adults in prevalence studies.

MENA Region Transformed Media Environment and Media Convergence: UAE Case Study

It is worth noting that the concept of media convergence entails the process of multiple media platforms coming together to combine their equipment and tools towards enhancing the production and distribution of news or information (Dwyer, 2010). In essence, it demonstrates the collaboration or cooperation between diverse media platforms to create a blend of computer, telecommunications, and media industries that can eliminate the barriers to media unity (Lugmayr & Dal, 2016). It embraces the integration of various media forms into a single digital platform. The diversity and dynamic experience encountered through the process of media convergence enables the professionals in the sector to elaborately communicate information and tell stories (Latzer, n.d.). They can offer entertainment to the audience in a convenient manner while enhancing the interactivity of the media platforms for the unique experience. Ideally, Jin (2011) explains that the concept of media convergence is related to the aspect of technology convergence in the sense that it entails the combination of diverse technologies used in the media system in conveying information. The technology convergence facilitates the media content production through the expansion, acceleration, and enhancing its distribution with the reduction in costs (Jacobs, 2013). According to the Australian Law Reform Commission (n.d.), the technology convergence relies on the diversity of available media devices or gadgets that are utilized in the transmission of information and data. As such, the application of technology convergence enhances quick, safe, and convenient mechanisms of passing information to the consumers through the digital platform. Lugmayr and Dal (2016) indicates that the development of the cross-media content enables the media stations and professionals to provide the information in varied modes including videos, texts, audio, print, and the podcasts. Notably, this paper focuses on discussing the concepts of media convergence within the context of the MENA region, specifically in the UAE.

Including People with Dementia in Research: An Analysis of Australian Ethical and Legal Rules and Recommendations for Reform.

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation precludes a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives.

Whose Fair Dealing? Third-Party Reliance on the Fair Dealing Exception for Parody or Satire

The Copyright Act 1968 (Cth) exempts from infringement a fair dealing “for the purpose of parody or satire”. The statute is silent as to whose purpose falls within the ambit of the exception, and whether it extends beyond the parodist’s purpose to the purpose of third parties involved in the production and dissemination of parody. A 1990 Federal Court case, De Garis v. Neville Jeffress Pidler Pty. Ltd., effectively excluded third-party purpose, and while occasionally overlooked it has not been overruled or expressly disapproved. De Garis isolates many third parties from immunity, and its potential application to the parody exception is particularly problematic, because parody relies on third parties for its dissemination. This may defeat or seriously hamper Parliament’s objective in introducing the exception, which was to enhance public access to copyright material and allow it to be used for socially useful purposes. The potential for De Garis to fetter the parody exception has been noted by the Australian Law Reform Commission and others in advocating the introduction of a US-style fair use exception. The Commission’s 2013 recommendation to introduce a fair use defence was ignored, which dilutes confidence that the Productivity Commission’s identical recommendation in 2016 will be adopted. If fair use reform seems unlikely, it is more important than ever to perfect the purpose construction in the fair dealing regime. This article explains the problems generated by De Garis and advocates for a flexible interpretation of purpose that accommodates the important role played by third parties in disseminating parody.

Accuracy of a cut-off value based on the third molar index: Validation in an Australian population

According to Recommendation N°196 of the Australian Law Reform Commission (ALRC), the age at which a child reaches adulthood for the purposes of criminal law should be 18 years in all Australian jurisdictions. With specific reference to age at majority, the only tooth with development spanning adolescence (and thus the legally relevant 18 years of age) is the third molar, which limits the number of methods that can be applied from those available in the published literature. The aim of the present study is to test the accuracy of the third molar index (I3M=0.08), based on the correlation between chronological age and normalized measures of the open apices and height of the third mandibular molar, in order to assess the legal adult age of 18 years. Digital orthopantomographs of 143 living Australian subjects (72 boys and 71 girls) are analyzed. The results demonstrate that the sensitivity is 0.90 in boys and 0.90 in girls; associated specificity values are 0.85 and 0.87 respectively. We conclude that the cut-off value of I3M=0.08 is statistically robust and thus valid for forensic application in an Australian population.

Distance is no hurdle: Reforming the family violence exception to better protect immigrant women in rural, regional and remote communities

After careful consideration consistent with COPE guidelines, the editorial staff has concluded that there is no case of plagiarism associated with this article. (10th August, 2016)The editors have received allegations that the paper references arguments and evidence without attribution to pre-existing literature, and that it exhibits stylistic similarities to other sources on the same topic. The editors are currently conducting an investigation under the Committee on Publication Ethics (COPE) guidelines to confirm or refute the allegations. (29th June, 2016)This article considers the impact of migration laws on immigrant women in rural, regional and remote communities (RRR communities) who are victims of family violence. The Migration Regulations 1994 (Cth) (‘the Regulations’) includes a ‘family violence exception’ that allows for the grant of permanent residency to women who hold a temporary partner visa in circumstances where the relationship with the Australian sponsor has broken down due to family violence. However, the Regulations impose strict procedural and evidentiary requirements for making a family violence claim. These laws disproportionately impact those in RRR communities by failing to account for their isolation, lack of access to services and particular vulnerabilities. As a result, immigrant women in RRR communities are restricted in their ability to access the family violence exception.This article calls for reform of the Regulations to address the locational disadvantages faced by immigrant women in RRR communities. Building on the work of the Australian Law Reform Commission, it argues for the repeal of the provisions governing evidentiary requirements for ‘non-judicially determined’ claims of family violence. In its place, it is suggested that there should be no restrictions on the types of evidence that can be provided. In addition, all non-judicially determined family violence claims would be referred to an ‘independent expert panel’ for assessment. The independent expert panel should include, at a minimum, a number of community legal centres (CLCs) and family violence centres (FVCs) around Australia. CLCs and FVCs are leveraging technology — such as Skype and teleconferencing — and integrated service responses to provide access to justice to those in RRR communities.

Questioning Law's Capacity

The past ten years have witnessed an increased public awareness of the marginalisation and discrimination experienced by people with disability in the Australian legal system, and an associated proliferation of law reform reports on disability law.1 A particular focus has been legal schemes applicable to people with disability found lacking legal capacity. A recent example is the 2014 report of the Australian Law Reform Commission ('ALRC') in its inquiry into equality, capacity and disability in Commonwealth laws.2 Running parallel to these domestic law reform recommendations, the Convention on the Rights of Persons with Disabilities 3 ('CRPD') has brought about paradigm shifts in legal understandings of disability and the appropriate treatment of people with disability. In particular, Article 12 establishes that people with disability are entitled to legal capacity and places obligations on States Parties to repeal laws that deny legal capacity. Legal capacity has been recast as an international human rights issue, central to recognising the equality of people with disability under domestic legal systems.

Should Supported Decision-Making Replace Substituted Decision-Making? The Convention on the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act 2000

In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The Australian Law Reform Commission has also recommended the introduction of supported decision-making to replace mental health and guardianship laws. This paper critically evaluates the concepts of autonomy and discrimination and the social model of disability which provide the theoretical underpinning of the CRPD. Focussing on coercive treatment of adults with severe mental illness under Queensland’s Mental Health Act 2000, it then evaluates the advantages and disadvantages of supported decision-making, and concludes that the proposed abolition of involuntary treatment laws is not justified.

Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?

Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or “nominee” arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any “off the shelf” measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia’s National Disability Insurance Scheme and “disability trusts” in Australia and Canada).

Supporting People with Cognitive Disabilities with Decision-making: Any Australian Law Reform Contributions?

This article briefly reviews recent law reform achievements or proposals for supported decision-making within Australia against benchmarks such as how well the measure translates supported decision-making principles to cater for the routine needs of people with cognitive impairments; whether it appears robust and workable in practice; and how prone it may be to overreach or unintended consequences. The article suggests that Australian Law Reform Commission reforms are more principled and better targeted on the more mundane needs of people with cognitive impairments, while recent Victorian initiatives rate poorly in terms of avoiding public misunderstandings and unintended outcomes, despite deserving credit for fidelity to the principles of the United Nations Convention on the Rights of Persons with Disabilities and being Australia's first supported decision-making appointments. The article recommends reconsideration of aspects of these proposals, including the retrograde step of an expedited avenue for appointment of parents as guardians or administrators of children with cognitive impairments on turning 18 years of age.

Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era

(2014). Privacy, Free Speech and Ruthlessness: The Australian Law Reform Commission's Report, Serious Invasions of Privacy in the Digital Era. Journal of Media Law: Vol. 6, No. 2, pp. 193-205.

PRIVACY PROTECTION AND MEDIA IN AUSTRALIA: UNFINISHED BUSINESS

In this article the author surveys the development of legal protections for privacy in publication in jurisdictions of the common law. He explains how, in 1937, the High Court of Australia in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) declined to endorse a new legal protection for privacy despite developments favourable to that course in United States courts. He then discusses the advent of universal human rights that include privacy protection and work that he performed in the 1970s and 80s in the Australian Law Reform Commission and Organisation for Economic Co-operation and Development, proposing improved privacy protection. Controversies in the courts, including inAustralian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) are described, followed by an analysis of recent controversies about media excesses in England and Australia resulting in the Finkelstein Report (2012) and the Leveson Inquiry (2012), both recommending improved protections for privacy. Now the Australian Government is once again considering a federal statutory tort. Would this be desirable or would it be an unjustified burden on free expression in Australia? The author concludes, with some telling illustrations, why protection of privacy is needed, and why the rule of self-regulation on this score should now be ended.

Serious Invasions of Privacy: Final APF Submission on ALRC Discussion Paper 80

This submission by the Australian Privacy Foundation (APF) to the Australian Law Reform Commission (ALRC) strongly endorses establishment in national legislation in Australia of a cause of action for serious invasion of an individual’s privacy. It is appropriate to describe the action as an action in tort, or a ‘privacy tort’. The Australian Privacy Foundation (APF) is Australia's leading privacy advocacy organisation. This submission is in response to the proposals in ALRC Discussion Paper 80: Serious Invasions of Privacy. Key submissions made by the APF are as follows: (i) The most effective structure of a cause of action is that which is consistent with an intentional tort; consisting of elements that a plaintiff must satisfy with countervailing defences available to any putative defendant. There should be no requirement for the court to undertake a balancing exercise as an essential element in determining whether the plaintiff can, on his or her own case, succeed or not. (ii) The cause of action for a ‘serious invasion of privacy’ should additionally be described as an ‘interference with privacy’ for the purposes of the Privacy Act 1988 (Cth). (iii) The focus of the tort should be upon the intrusion into a plaintiff’s seclusion or private affairs (including by unlawful surveillance) and/or the misuse or disclosure of private information about the plaintiff. (iv) There is no sound legal or policy basis for limiting the scope of the action to either intentional or reckless acts rather than incorporating negligent acts. (v) There is potential for an undesirable downward ratchet effect in the concept of “reasonable expectations”: the lack of a practical remedy enables continuation of an intrusive practice without restraint, which practice reduces the level of protection that would be “reasonably expected”, which in turn reduces the scope of the tort over time. (vi) The fourth proposed element of the tort, that it is only available where the invasion of privacy is 'serious', is both unnecessary and arbitrary. (vii) There is little utility in incorporating a balancing exercise of the plaintiff’s privacy interest against freedom of expression or other broader public interest, the fifth element of the proposed cause of action. (viii) Federal, State and Territory courts should have jurisdiction to hear a serious invasion of privacy action. However, there are very strong reasons for providing the option to complainants/plaintiffs to take a ‘serious invasion of privacy’ complaint to the Privacy Commissioner. A new sub-section 13(6) should be added to the Privacy Act 1988 (Cth): ‘(6) A serious invasion of privacy under the [title of new Commonwealth Act] is an interference with the privacy of an individual,’ together with such limited consequential changes (if any) as are necessary to make the Privacy Act consistent with the new statutory action and the [title of new Commonwealth Act]. (ix) There may be a case for clarifying the law of breach of confidence even if a statutory tort were to be introduced, but some of the ALRC’s proposals are not justifiable. (x) While it is important to remove inconsistencies and promote uniformity in the the current State and Territory surveillance device and workplace surveillance laws, this must not be at the expense of reducing the level of protection of Australians against unjustified surveillance. Proposed uniform laws should apply to all existing and emerging technologies that are capable of monitoring and recording the activities of people and their data. Surveillance device laws should incorporate a mechanism for awarding compensation, or other forms of relief, to victims of unauthorised surveillance. (xi) The public interest activities of responsible journalists in investigating and reporting on matters of public interest, such as uncovering corruption, do not require a broad or vague exception for journalists. (xii) The ALRC proposal is desirable that a new APP (Australian Privacy Principle) be inserted into the Privacy Act to require an APP entity to provide a simple mechanism for an individual to request the destruction or de-identification of personal information that was provided to an APP entity by the individual. A regulator should be so empowered, preferably the Privacy Commissioner with a right of appeal to the AAT (Administrative Appeals Tribunal). (xiii) The definition of “personal information” in the Privacy Act 1988 (Cth) should be amended so as to confirm that the information will remain personal information, despite any steps to anonymise it, if there is any significant possibility that it may be re-identified in future.

Assessing the Knowledge Ecologies of Media Policy: the Case of Content Classification

This paper considers the role played by statutory bodies such as the Australian Law Reform Commission as case studies in knowledge brokering, or the bringing together of academic knowledge and policy knowledge around areas of public concern. It reflects upon the author's own experience as Lead Commissioner of the National Classification Scheme Review, where areas of knowledge that would not seem immediately relevant to policy-making, such as Michel Foucault's concept of governmentality, can be brought to bear upon debates about media classification and censorship.

Convergence and the Classification of Films in Australia: The Challenge of Assessing the Impact of Interactivity

Australian film classification relies on assessment of the potential impact of film content on audiences. The capacity to assess impact is becoming increasingly complicated by technological convergence blurring the boundaries between films and computer games. This is exemplified by the interactive features offered on DVDs and, more recently, the potential for game-inspired interactive cinema. As a result of convergence, audiences are afforded more control over how they watch films and offered greater opportunities to interact with content. In light of these developments, the Australian government is currently considering recommendations for amending the National Classification Scheme arising from a recent review conducted by the Australian Law Reform Commission (ALRC) that proposes an approach based on platform neutrality, streamlining classification across platforms. This article examines how assessing the impact of film content is problematic, discussing challenges facing the current scheme in reference to convergence, interactivity and related recommendations made by the ALRC.