Denis Muller, The University of MelbourneThe news that Craig Kelly, MP, serial purveyor of COVID misinformation, is to join Clive Palmer’s United Australia Party in order to fund his damaging ravings on a grander scale, confronts Australian democracy with a dilemma.
How is he to be prevented from adding to the harm he is already doing to the public welfare without trespassing unjustifiably on his right of free speech?
It is a classic example of how populists are exploiting the rights conferred by democracy to undermine democracy.
Kelly is frank about what he intends to do. Referring to his joining the UAP, he told The Sydney Morning Herald:
The crude reality is that I’ll have greater resources.
I have been screaming this stuff from the rooftops for a long time. It’s very hard to get this message through. We have a huge war chest, we can run television commercials, ads, we can finance a proper campaign that no other minor party or independent can.
He says that because these advertisements would be considered party-political advertisements, blocking them would be unconstitutional.
Whether or not he is right about that, it reveals his attitude: a preparedness to exploit a law protecting freedom of political speech so he can go on spreading COVID misinformation in pursuit of elected office.
The electoral and trade practices laws have no provisions to stop him. Section 329 of the Commonwealth Electoral Act is confined to the issue of whether a publication is likely to mislead or deceive an elector in relation to the casting of a vote. Sections 52 and 53 of the Trade Practices Act, which make false or misleading representations an offence, have nothing to say about political advertising.
However, there are two philosophical bases for arguing the electoral laws should be amended to thwart this kind of harmful exploitation.
One is John Stuart Mill’s harm principle, which says the prevention of harm to others is a legitimate constraint on individual freedom.
The other is from John Locke’s A Letter Concerning Toleration. Locke’s principle is that society is not obliged to tolerate actions or positions that undermine the civil order. Corrupting the electoral process as Kelly proposes – by misleading voters – falls well within that compass.
To borrow from Locke’s other great contribution to the development of modern democracy, his Second Treatise on Government, such actions or positions would breach the social contract. This contract is built on trust. Individuals submit themselves to the law on the condition that everyone else will do the same. Breaches of that trust are not to be tolerated.
This principle may be extended to other behaviours that breach the public trust: unethical conduct and anti-social conduct that might fall short of illegality but still do harm. Unethical conduct is embodied in Kelly’s stated intention to use Palmer’s millions to amplify his COVID misinformation, which would be to the detriment of public health.
In common with other mature democracies, Australia has predicated its laws on certain norms concerning truth, responsibility and the preservation of the social contract.
The problem is that in an age when populist politicians, social media and influential elements of mass media combine to spread harmful content, these norms – the guard rails of democracy – are being tested to breaking point.
In Washington on January 6 2021, when the mob invaded Congress, we saw what happens when the guard rails give way. For months leading up to and during the US presidential election, the then President Donald Trump and his mouthpiece, Fox News, abandoned the norm of truth-telling and persuaded a significant plurality of voters that the election was fraudulent.
This confronts democracies with a paradox. If they extend free speech even to those who use it to do serious harm, then tolerant societies become defenceless against the baneful effects of this behaviour.
It is akin to Karl Popper’s argument concerning what he called the tolerance paradox:
Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.
In common with other democracies, Australia places restrictions on free speech when it does unjustified harm. The defamation and contempt of court laws are just two examples among many.
There is no reason why this principle should not be extended to speech that causes provable harm to the public welfare in pursuit of election to parliament. Those harms could be defined and circumscribed in the Electoral Act without too much difficulty and would certainly include harms to public health.
There is precedent. In the aftermath of the Christchurch terrorism in March 2019, Parliament enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act. Abhorrent violent material was confined in its definition to mean murder or attempted murder, a terrorist act, torture, rape or kidnapping. There are provisions to allow for the reporting of these acts.
At the same time, great care needs to be taken to avoid overreach, particularly in a society like Australia’s, which has no constitutional protection for free speech. That situation only sharpens the paradox.
As matters stand, Australia is leaving it to powerful foreign sources such as YouTube, unelected and unaccountable, to restrain the likes of Kelly, as when it recently suspended Sky News for spreading COVID misinformation.
Instead of confronting the paradox, the Australian parliament seems content to outsource to the global media platforms control over how our democratic freedoms are governed. Neither of the major parties has shown the slightest interest in engaging with this problem.
Laura Fruhen, The University of Western Australia; Isabel Rossen, The University of Western Australia, and Lisette Kanse, The University of Western AustraliaTo protect cyclists on the roads, state governments in Australia have introduced laws that set a minimum space drivers must give cyclists when overtaking them. These laws are now in place nationwide, with Victoria the final state to join the ranks last month. But do these passing distance laws actually change drivers’ behaviour towards cyclists?
Our research set out to answer this question by evaluating Western Australia’s passing distance law introduced in 2017. We found that since the law took effect drivers do indeed report giving cyclists more space when overtaking. However, there were possible unintended consequences. Drivers also self-reported more aggressive behaviour directed at cyclists, such as beeping horns or swearing.
What is in a passing distance law?
Passing distance laws are based on the understanding that close overtaking by cars greatly increases the risk of accidents involving cyclists and motor vehicles. Previously, drivers had to use their own judgement in providing “sufficient” space when overtaking cyclists. Now the laws instead specify a minimum distance.
In Australia, the distance is usually 1 metre on roads with speed limits less than 60km/h and 1.5 metres on roads with higher speed limits.
Lawmakers understand that legislation can also send important social signals: cyclists are legitimate road users, and the road is a safe place to cycle.
Why do we need these laws to protect cyclists?
Cycling is a healthy and environmentally friendly mode of transport. It can play a key role in reducing pollution and congestion in ever more densely populated cities. Yet cycling rates in Australia are low.
Clearly, it would be desirable for more people to take up cycling. Why is this not happening?
Partly, low cycling rates might be due to the risks involved in cycling. Cyclist fatalities and injuries have been on the rise in Australia in recent years. We know this is not related to the roads becoming more dangerous for everybody, because car driver deaths have been decreasing over the same time.
As well as objective safety, cycling participation is also related to whether people perceive cycling to be safe. Part of this perception comes from how other road users treat cyclists. Unfortunately, cyclists report motorists direct a fair amount of aggressive behaviour at them.
So what difference do these laws make?
However, we found the law may have the unintended side effect of increased aggressive behaviour towards cyclists.
There are several possible explanations for these unintended changes. We think it is an issue of culture: Australia is a car-centric society. Many car drivers in Australia believe cyclists do not belong on the roads.
Passing distance laws signal that cyclists are deserving of space and may “force” drivers to give cyclists more space, against their beliefs. Some drivers may give cyclists more space to comply with the law, but counter any discomfort they experience by being more aggressive towards cyclists.
Drivers often experience frustration with having to overtake cyclists and other slow road users. The law may have actually drawn attention to this frustration, which in turn may have contributed to more aggressive behaviour among drivers.
We also found cycling rates have remained stable since the passing distance law was introduced. Unfortunately, this suggests the law did not translate into greater enthusiasm for cycling.
What can be done to improve the situation?
If these laws have these side effects, what else can we do?
It seems passing distance laws are effective in regulating the specific behaviour of overtaking cyclists. This is great news for cyclists’ safety. However, to make cycling safer overall, and to increase cycling rates, further measures to complement these laws are needed.
Changing drivers’ deeply ingrained beliefs and attitudes towards cyclists may be a longer process, but one worth embarking on. Infrastructure and road layouts also matter and can play a role in shifting priorities away from cars.
Infrastructure that plans space for cyclists would reduce the number of interactions between cyclists and drivers. It also signals that cyclists have a right to this space.
As an added benefit, this type of infrastructure can play a key part in preparing the road network for emerging technology such as e-scooters and other transport modes.
Public policy is an inexact science. Most new laws will have some unintended consequences. Our study confirms the importance of careful evaluation of such laws. It shows the passing distance law is a great first step, but more can be done to protect cyclists on the roads.
Laura Fruhen, Lecturer, School of Psychological Science, The University of Western Australia; Isabel Rossen, Senior Learning Skills Officer, The University of Western Australia, and Lisette Kanse, Senior Lecturer, School of Psychological Science, The University of Western Australia
The spectre of large ships with people desperate to come ashore is not a new sight in Australia.
In 2001, the MV Tampa infamously sought to enter Australian waters off Christmas Island to discharge more than 400 asylum seekers who had been rescued by the Norwegian vessel.
It is estimated that 15,000 crew members are now stranded on 18 cruise ships floating around Australia, with mounting concerns that coronavirus will take hold and spread.
The circumstances for each ship may vary, but the fundamental rules of international law remain the same.
Duty to render assistance
For those at sea, there is a duty for masters of vessels to render assistance to those in distress. States must fulfill this obligation, too.
Australia could be seen as fulfilling this responsibility with its plan to send doctors to the cruise ships to evaluate sick crew members. An at-sea boarding is challenging, though, and requires the consent and cooperation of those on board.
When the vessel itself is in distress, the international law of the sea allows for it to enter a port of refuge.
Though countries exercise sovereignty over their ports and are entitled to control which vessels enter, an exception exists under customary international law to allow ships in distress to dock.
This is what happened in 2001 when the master of the Tampa issued a distress call to warrant his entry to Christmas Island.
But what counts as distress? Essentially, it is when there is a clear threat to the safety of those aboard the ship.
Traditionally, this related to situations when a vessel had a broken mast, damaged sails or malfunctioning engines or other mechanical failures requiring repair. A vessel could enter into port and seek the repairs needed before continuing on its journey.
The Tampa’s distress, however, was caused by the fact it was carrying an excess number of people who required more food, water and medical attention than the vessel was equipped to provide.
International law protections for crews
What about a cruise liner with a crew of 1,000 who live in close quarters and are exposed to the coronavirus? A situation of distress could well arise on these ships, as well.
International law has minimum requirements for the crew operating a ship. At the moment, it would seem the crew on a cruise liner would be divided between those who are essential for the running of a vessel and those whose jobs are to look after the passengers.
A situation of distress would be more easily established when the crew responsible for the actual running of the vessel are unwell and unable to perform tasks essential for the safety of the ship.
The crew members also have core rights that are set out in the Maritime Labour Convention, which came into force in 2013. It sets the working and living standards for crews working on ships internationally.
Under this convention, seafarers who are in need of immediate medical care are to be given access to medical facilities on shore. Australia is bound by this obligation for vessels located in its territorial waters, regardless of whether those ships are foreign-registered.
That order requires the owners of vessels
put in place measures for the health protection, medical care and essential dental care for seafarers on board.
This obligation extends to ensuring that
seafarers have health protection and medical care as comparable as possible to that available to workers on shore, including prompt access to: (i) necessary medicines, medical equipment and facilities for diagnosis and treatment; and (ii) medical information and expertise.
This order applies to Australian vessels. The question is whether the same rules apply to a foreign-registered vessel.
However, the vessel owners do not have full responsibility for the well-being of crews on board. The Maritime Labour Convention makes clear that Australia is duty-bound to offer medical care to crew on ships in its territorial waters.
The convention does not indicate who has primary responsibility to provide medical assistance in cases like these, but the shipowner does have financial liability under the treaty to defray the expenses of such treatment. What matters is the crew receives the necessary medical care.
For Australia, there is still a balance of rights to be achieved. Under international law, a state might refuse access to its ports for a ship that poses a serious and unacceptable safety, environmental, health or security threat to it. A pandemic would no doubt count in this regard.
Port states have the right to protect their local populations in different ways, consistent with international health regulations put forth by the World Health Organisation and with the International Ship and Port Facility Code.
Yet, the safety of persons on board must be assured, as well.
In a recent ruling the Australian Press Council has given a signal to gossip magazines it is OK to make up and publish rubbish about people, so long as the stories aren’t “blatantly incorrect”.
This is despite the council’s own guidelines stating all member publications must strive for accuracy and avoid being misleading.
The council, which adjudicates complaints against the print media, has also suggested it’s OK to have less rigorous standards when reporting on royalty and celebrities.
And all this happened in a ruling against a magazine for publishing falsehoods.
A confused adjudication
The council has upheld a complaint about an article published in Woman’s Day on May 27 2019. The cover declared: “Palace confirms the marriage is over! Why Harry was left with no choice but to end it.”
The inside story was titled “This is the final straw” and claimed: “Prince Harry has been left enraged and humiliated by a series of shock revelations about his wife’s past” and he “has finally reached breaking point”.
In upholding the complaint, the Press Council said the headline was “blatantly incorrect” and not supported by the article’s contents. It also ruled the headline “was more than just an exaggeration […] it was misleading”.“
But the council has sent a strong signal it will be lenient with publications that exaggerate.
It said: ”[A]n entertainment publication can be expected to use some exaggeration” and “celebrity and gossip magazines are purchased for light entertainment, with readers not necessarily assuming that everything presented is factual”.
The phrase “not necessarily” suggests some people might believe what’s presented is factual. But, that aside, why is the Press Council making rulings at odds with its own general principles?
The first principle says publications should “ensure that factual material in news reports and elsewhere is accurate and not misleading and is distinguishable from other material such as opinion”.
How does it reconcile these two contradictory ideas? It’s a question Marcus Strom, the president of the journalists’ union, MEAA Media, has been considering. He told The Conversation:
The Press Council guidelines are clear that all member publications must strive to be factual and not misleading. I’m surprised that falsehoods – where not “everything presented is factual” – are allowed within that definition.
If you’ve walked past a rack of magazines in the supermarket and wondered just how many times the same celebrity can become pregnant, you may have asked yourself why these publications can print falsehoods on an almost industrial scale. You might have concluded they’re just gossip magazines and no one takes them seriously.
That same thinking seems to be driving the Press Council’s comments. But is that good enough?
The idea these publications have a special exemption from journalistic standards is a concept with almost no foundation in law. There is no special provision under Australia’s defamation laws for this class of magazines.
There is no “celebrity” defence that allows the media to make up lies about people. Even the defamation law’s defence of “triviality” offers very little protection. The Rebel Wilson case made that perfectly clear.
Lawyer Dougal Hurley, of Minter Ellison, tells The Conversation gossip magazines trade on light entertainment, and readers “can and do expect a level of hyperbole that they would not in news media”.
However, he concludes:
This does not mean that the defence of triviality will succeed if these magazines are sued for defamation. Indeed, the rejection of triviality defences by the jury [in the case of] Wilson is evidence of this. Gossip magazines that have not already changed their editorial practices risk being liable for significant defamation payouts.
The other controversial suggestion in the ruling is that the media can apply less rigorous standards when reporting on the royal family and celebrities.
The Council also acknowledges that the reasonable steps required to be accurate and not misleading in an article concerning royalty and celebrities can, depending on the circumstances, be different to those required in respect of other persons, particularly those who are not usually in the public eye.
The council offers little reasoning for this, but is no doubt assuming that, as public figures, they should expect incursions on their privacy and sensationalised coverage. Again, the council’s thinking is looking out of step with the increased use of the courts to combat inaccurate reporting and false gossip.
Hurley says: “Although in many respects gossip magazines are as they ever were, it is also true that they are bearing more risk in circumstances where they purport to report news and publish to a global audience instantaneously.”
While international celebrities may appear to be easy targets for gossip magazines, our notoriously plaintiff-friendly defamation laws mean that these celebrities can and will sue in Australia. Only a major overhaul of Australia’s defamation laws will prevent the libel tourism that has contributed to Australia becoming the defamation capital of the world.
Perhaps in these circumstances, the Press Council might do its members – and the public – a greater service by insisting proper standards apply to all reporting, and that accuracy and fact checking be the norm, even for the magazines at the supermarket checkout.
Tasmanian Senator Jacqui Lambie has some sobering reading to do over the coming weeks: an 88-page Senate report into the government-sponsored bill to repeal the medevac law that allow refugees and asylum seekers in Papua New Guinea and Nauru to seek medical care in Australia. The publication of the report last Friday paves the way for a Senate vote on the bill in mid-November.
As predicted, the Senate committee that issued the report split along party lines, with the Coalition majority calling for the medevac provisions to be repealed and the ALP, Greens and Centre Alliance senators releasing dissenting reports.
What is less predictable is how the report will influence Lambie’s deciding vote. She has indicated she will approach the bill as a conscience vote, saying
Tasmanians don’t want deals done over humanity.
An overwhelming health crisis in offshore detention
The medevac law allows a person to be transferred to Australia for medical treatment or assessment if two Australian-registered doctors recommend such care is necessary and unavailable in PNG or Nauru. There are limited exceptions for the minister of home affairs to reject a transfer on security and character grounds.
Since the law came into effect in March, over 130 people have been transferred for care.
The Coalition government maintains the pre-medevac medical transfer policy for refugees was adequate. This allowed transfers only in life-threatening cases in which the required specialist medical care could not be provided on PNG, Nauru or a third country like Taiwan.
However, evidence given to the Senate committee showed a drastic drop in medical transfers to Australia from 2015 to mid-2018, despite clear medical need.
Statistics given to the committee by the National Justice Project, a not-for-profit legal service that acts on behalf of refugees, documented how some patients had to wait more than four years for medical transfers to Australia.
Tony Bartone, the Australian Medical Association president, described the government’s pre-Medevac process as “torturous” and involving “long periods of delay,” without any appropriate oversight.
Court injunctions and prospective litigation from mid-2018 onwards did compel the government to bring around 350 people to Australia for urgent medical treatment or as an accompanying family member. But such court interventions can be costly, slow and resource-intensive for those in need of immediate medical attention.
And that need is still extremely high for those refugees remaining in offshore detention. An independent health assessment in June found a staggering 97% of those in detention and processing facilities have been diagnosed with physical health conditions. A further 91% were experiencing mental health problems, including severe depression and PTSD.
All but two of the 95 public submissions received by the committee were strongly in favour of retaining the medevac law.
Tellingly, those two submissions were from the Department of Home Affairs and the International Health and Medical Service, a government-contracted health provider on Nauru.
Overlooked refugee suffering in Australia
What is missing from the Senate report is any mention of the intolerable situation that refugees and asylum seekers face even after they have been transferred to Australia.
Although people can access critical medical treatment here, most remain in community detention, facing economic insecurity and legal uncertainty about their future. Research shows such legal limbo can lead to feelings of despair and dehumanisation.
The day before the report’s release, 32-year-old Afghan doctor Sayed Mirwais Rohani died in Brisbane, the victim of an apparent suicide. Rohani had come to Australia for medical treatment two years ago, after spending four years in immigration detention on Manus Island.
After his death, his former roommate posted on Facebook:
We shared same pain for long time, long enough to destroy someone’s life.
Rohani’s death was at least the 13th among refugees held in offshore detention on Manus or Nauru.
‘Trying to kill themselves because they’ve lost hope’
No doubt the government will use the Senate report to convince Lambie to support its bill when the vote happens next month.
So far, Lambie has remained relatively reticent, even if she did rebuff Dutton’s claim that the “vast majority of veterans” want her to vote to repeal medevac.
Instead, Lambie indicated she would look to “national security” considerations in weighing up the report’s findings, including the dissenting reports. She has in the past called for children not to be in immigration detention and voted against the Coalition government’s bill to introduce temporary refugee visas in 2014.
Even if the medevac provisions stay in place, the status quo of Australia’s offshore detention regime remains unsustainable and inhumane.
As former MP Kerryn Phelps, a key architect of the medevac law during her brief time in parliament, stated in her evidence to the Senate committee, refugees and asylum seekers are
not trying to make a point; they’re trying to kill themselves because they’ve lost hope.
With all the hyperbole about the medevac law, it is easy to lose sight of its purpose.
Refugees have been transferred off Nauru and Manus Island for emergency medical treatment since offshore detention restarted on these islands in 2013. The Department of Home Affairs reported to Senate estimates that 898 refugees and asylum seekers had been sent to Australia for medical treatment prior to the passage of the medevac law earlier this year. Of those, 282 were returned to Manus and Nauru after receiving treatment, and the rest remained in Australia in detention.
These transfers occurred in response to pleas from doctors and health professionals on an ad hoc basis. And it was up to the Home Affairs Department and Minister Peter Dutton whether to comply with such a request. Medical emergencies could include life-threatening brain or heart conditions, complex abortions, or emergency psychiatric care for children at risk for suicide – all of which are beyond the capacity of the health systems on Nauru and Manus to treat.
Although some refugees were granted emergency medical evacuation, many others were not. In response, legal cases were brought against the government for breaching its responsibility to care for the refugees.
This required the federal court to convene at short notice to hear cases. It also required the expenditure of huge amounts of taxpayer money to call expert medical witnesses and file thousands of pages of supporting documentation.
Because of the delays in treatment, these legal battles were enormously risky for those in need of medical care.
Through these early cases, the court established that it was a breach of the government’s duty not to provide refugees with emergency medical treatment. And yet, the Home Affairs Department continued to fight applications for transfers for emergency medical treatment, only to be overturned by the courts, time and time again.
How the process works under the medevac law
The medevac law was passed due to concerns the department was rejecting transfer applications for political rather than medical reasons. The point was to provide an expedient, objective process to determine whether transfers were required.
And despite the Coalition government’s opposition to the bill, the process for determining which refugees are moved off Nauru and Manus for treatment remains highly deferential to the minister and Department of Home Affairs.
There are two stages to this process.
First, two doctors must assess the person and make a recommendation for transfer. The federal court recently ruled it was possible to make this medical assessment based on documentation alone, as opposed to an in-person or teleconference assessment. This was a necessary adjustment to the law, given that the Nauru government has banned teleconferences for residents.
The minister is required to approve or refuse the recommendation for transfer within 72 hours. There are three grounds for refusal:
- the person is deemed a security risk
- the person has a “substantial criminal record” (which equates to having been convicted of an offence with a sentence of imprisonment for 12 months or more)
- the minister does not accept the transfer is necessary on medical grounds.
If the minister rejects the transfer on medical grounds, the second stage of the process kicks in, with an independent health advice panel (IHAP) assessing the doctors’ recommendation. It is important to note that this panel is comprised of government medical officers and other health professionals appointed by the minister.
To date, there have been 31 medical transfers under the law. In addition, nine recommendations were refused by the government. The panel of health experts upheld seven of the minister’s refusals, and overturned two.
Dutton’s claims don’t stand up under scrutiny
Dutton has made a number of claims about the impact of the medevac law that he argues justify its repeal. All defy reason and logic.
First, the minister has claimed “activist doctors” were using the law to bring people to Australia when they do not require emergency medical care.
This is frankly highly offensive to the medical profession in Australia, and contradicts the clear intention of the law to take politics out of transfer decisions. Even if doctors making the initial recommendation are too left-leaning for Dutton, the expert panel is stacked with medical practitioners of his choosing.
Second, the minister has argued that the capacity to be transferred to Australia for emergency medical treatment will lead to a resumption of the people-smuggling trade.
This is patently absurd. It is true that people smugglers can make up all sorts of stories about Australia relaxing its policies and it being easier to get to Australia. But the facts are crystal clear: the Coalition government maintains a policy of boat turn-backs and indefinite offshore detention for anyone thinking of making the journey.
Medical transfers to Australia are for a temporary period. Once people have been treated, they are returned to detention on Nauru or Manus. It is true that many asylum seekers have remained in Australia for extended periods for ongoing treatment, but these refugees remain within the immigration detention system. They are escorted to medical appointments and remain under guard while receiving treatment. They are given no hope of putting down roots in Australia.
The deterrent to people smugglers remains overwhelming. And, unsurprisingly, we have not seen a restarting of boat arrivals following the passage of the medevac law. Dutton’s own department has signalled this is unlikely in a briefing:
[Potential illegal immigrants] will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures.
The only possible messaging that people smugglers might use to persuade people to get on a boat is the Coalition government’s own dire warnings of reopening the floodgates and political stunts like the brief resurrection of the Christmas Island detention centre at the staggering cost to taxpayers of over A$180 million.
Dutton’s third claim is that some refugees are refusing resettlement offers in the US because of the medevac law.
Again, it defies logic for refugees to refuse the US option – it is the only hope of resettlement currently on offer. One wonders whether the minister is using this claim as a cover for the fact that transfers to the US have come to a grinding halt under President Donald Trump.
The medevac law and human compassion
For over six years, successive Australian governments have maintained an unwavering narrow focus on stopping refugee boats with no concern for the victims of this policy – the innocent people on Manus and Nauru.
These people are under Australia’s care. It is Australia that pays the governments of Nauru and PNG to house offshore detention centres to create the disincentive for others to travel by boat to Australia. It is Australia that pays the security companies to keep them detained. And so it is Australia that is responsible for the dramatic decline in their mental and physical health.
It is the narrowest of concessions to offer emergency medical treatment in Australia to people we have so mistreated.
For social media and search engines, the law is back in town.
Prompted by privacy invasions, the spread of misinformation, a crisis in news funding and potential interference in elections, regulators in several countries now propose a range of interventions to curb the power of digital platforms.
A newly published UK report is part of this building global momentum.
Why are Australians still using Facebook?
Shortly after Valentine’s Day, a committee of the British House of Commons published its final report into disinformation and “fake news”. It was explicitly directed at Facebook CEO Mark Zuckerberg, and it was less a love letter than a challenge to a duel.
The report found:
Companies like Facebook should not be allowed to behave like ‘digital gangsters’ in the online world, considering themselves to be ahead of and beyond the law.
The committee was particularly vexed by Zuckerberg himself, concluding:
By choosing not to appear before the Committee … Mark Zuckerberg has shown contempt.
Its far-reaching recommendations included giving the UK’s Information Commissioner greater capacity to be “… an effective ‘sheriff in the Wild West of the Internet’.”
The law is back in town
Then, on February 12, the Cairncross Review – an independent analysis led by UK economist and journalist Frances Cairncross – handed down its report, A Sustainable Future for Journalism.
Referring to sustainability of the production and distribution of high-quality journalism, “Public intervention may be the only remedy,” wrote Cairncross. “The future of a healthy democracy depends on it.”
And a week later, the Digital, Culture, Media and Sport Committee of the House of Commons issued its challenge in its final report on disinformation and “fake news”:
The big tech companies must not be allowed to expand exponentially, without constraint or proper regulatory oversight … only governments and the law are powerful enough to contain them.
How do the responses of the three reports compare?
ACCC inquiry broadest in scope
First, it’s important to note that the scope of these three inquiries varied significantly.
The ongoing ACCC inquiry, billed as a world-first and set to hand down its final report in June, is seeking to assess the impact of digital platforms on media and advertising, with a focus on news.
The Cairncross Review was narrower in intent, addressing “the sustainability of the production and distribution of high quality journalism, and especially the future of the press, in this dramatically changing market.”
And the House of Commons committee had a very direct brief to investigate fake news. It then chose to focus on Facebook.
As such, the three inquiries overlap substantially, but the ACCC investigation is unequivocally the broadest in scope.
Not just distribution platforms
However, all three reports land in roughly the same place when it comes to characterising these businesses. They all see digital platforms as more than just conduits of other people’s content – and this brings certain responsibilities.
The ACCC says digital intermediaries are “considerably more than mere distributors or pure intermediaries” when it comes to the supply of news and journalism.
The Cairncross Review stresses there is a “fundamental difference” between distributors and content creators.
The House of Commons committee proposes “a new category of tech company” as a legal mechanism for having digital platforms assume liability for harmful content.
Need more oversight
A related important point is that all three reviews recommend that digital platforms are brought more squarely into the legal and regulatory environment.
By this, they don’t just mean cross-industry laws that apply to all businesses. There is some of that – for example, adapting competition laws so certain conduct is regulated.
But these inquiries also raise the prospect of specific rules for platforms as part of communications regulation. How they go about this shows the point at which the inquiries diverge.
The ACCC has flagged the need for further work on a platforms code of practice that would bring them into the orbit of the communications regulator, the ACMA.
The platforms would be bound to the code, which would require them to badge content produced under established journalistic standards. It would be the content creators – publishers and broadcasters, not platforms – that would be subject to these standards.
In the UK, Cairncross proposes a collaborative approach under which a new regulator would monitor and report on platforms’ initiatives to improve reliability of news – perhaps, in time, moving to specific regulatory obligations.
In Australia, the ACCC has proposed what others refer to as a new “algorithms regulator”. This would look at how ads and news are ranked in search results or placed in news feeds, and whether vertically integrated digital platforms that arrange advertising favour their own services.
The algorithms regulator would monitor, investigate and report on activity, but would rely on referral to other regulators rather than have its own enforcement powers.
Unsurprisingly, the leading digital platforms in Australia oppose the new algorithms regulator. Equally unsurprisingly, media companies think the proposal doesn’t go far enough.
For its part, Cairncross does recommend new codes on aspects such as indexing and ranking of content and treatment of advertising. The codes would be overseen by a new regulator but they would be developed by platforms and a move to a statutory code would only occur if they were inadequate.
In contrast to both these reviews, the House of Commons committee’s Code of Ethics is concerned with “online harms”. Right from the outset, it would be drawn up and enforced by a new regulator in a similar way to Ofcom, the UK communications regulator, enforcing its Broadcasting Code.
It says this would create “a regulatory system for online content that is as effective as that for offline content industries”. Its forcefulness on this is matched by its recommendation on algorithms: it says the new regulator should have access to “tech companies’ security mechanisms and algorithms, to ensure they are operating responsibly”.
Both the ACCC and Cairncross pointedly avoid this level of intervention.
However, the ACCC does raise the prospect of a new digital platforms ombudsman. Apart from delivering 11 preliminary recommendations, the ACCC also specified nine proposed areas for further analysis and assessment. Among these areas, the ACCC suggested the idea of such an ombudsman to deal with complaints about digital platforms from consumers, advertisers, media companies and businesses.
And then there is data privacy.
This is where the ACCC and the House of Commons committee delivered some of their most significant recommendations. It’s also where regulators in other jurisdictions have been turning their attention, often on the understanding that the market power of digital platforms is largely derived from their ability to access user data.
Earlier this month, Germany’s Federal Cartel Office (Bundeskartellamt) found that Facebook could no longer merge a person’s data from their Instagram, Facebook and WhatsApp accounts, without their explicit consent.
In Germany, the law has spoken. In Australia and the UK, it’s still clearing its throat.
Sacha Molitorisz, Postdoctoral Research Fellow, Centre for Media Transition, Faculty of Law, University of Technology Sydney and Derek Wilding, Co-Director, Centre for Media Transition, University of Technology Sydney
Prime Minister Scott Morrison and Treasurer Josh Frydenberg moved very quickly to deliver the interim report of the Royal Commission into Financial Services to the public. It was submitted to the Governor General, tabled in parliament (out of session), and made public on the same afternoon – Friday September 28.
The three-volume report is limited to findings from the first four rounds of hearings, on consumer credit, financial services, lending to small- and medium-sized enterprises, and experiences with regional and remote communities.
So far the commission has received almost 10,000 submissions, mainly related to banking (67%), superannuation (12%), and financial advice (9%). Most address issues relating to personal finance, superannuation, or small business finance.
In receiving the interim report, Frydenberg reiterated its key message that financial institutions have put “profits before people”.
It’s about the money
According to the report, poor culture and conduct in banks have been driven by their remuneration policies, with almost every instance of misconduct being directly linked to monetary benefit.
The interim report is also highly critical of the regulators, painting a disconcerting picture of their determination to detect and monitor misbehaviour and enforce compliance with the law.
The Australian Securities and Investments Commission comes in for particular scrutiny, with Commissioner Kenneth Hayne noting that where the law had been broken, “little happened beyond an apology from the entity, drawn-out remediation, and an infringement notice or an enforceable undertaking that acknowledged no more than ASIC had reasonable concerns about the entity’s conduct”.
The penalties imposed were often immaterial, given the size of the institutions involved.
The letter of the law can smother its spirit
It’s hard to know how to regulate. On occasions, as with the Future of Financial Advice legislation, the spirit of the law has been lost in complexity about prescribed behaviour, and of course so-called “grandfathering provisions” which ensure commissions that began in the past can continue even though they would no longer be legal.
The interim report asks whether, rather than more legislation, the answer lies in less: in simplifying the laws to better reflect their intentions.
It is something Labor had in the original version of the financial advice legalisation – an overarching obligation on advisers to act in their client’s “best interests”, an obligation the Coalition tried to remove on attaining office, arguing that specific provisions would do the job just as well.
On releasing the interim report, Frydenberg was asked where our regulators had been ineffective because they had been captured by industry or had inadequate resources.
Frydenberg replied that culture was indeed substandard, but that giving the regulators more resources would be seriously examined.
The government has already given ASIC and APRA more.
In August, ASIC received A$70 million in additional funding to strengthen supervision and give it the capability to embed its staff members inside major banks.
Earlier this year the government appointed a second ASIC deputy chairman, Daniel Crennan QC, to bolster its enforcement credentials.
The new chairman James Shipton appears to be reshaping the ASIC culture.
But that’s only the beginning of the changes we are likely to see.
It’s our turn now
Public submissions in response to the interim report are now open and are due by Friday October 26, 2018.
Two more rounds of hearings are yet to be held, with the final report due by February 1, 2019.
According to the Department of Home Affairs, encryption already impacts 90% of Australian Security Intelligence Organisation’s (ASIO) priority cases, and 90% of data intercepted by the Australian Federal Police. The measures aim to counteract estimates that communications among terrorists and organised crime groups are expected to be entirely encrypted by 2020.
The Department of Home Affairs and ASIO can already access encrypted data with specialist decryption techniques – or at points where data are not encrypted. But this takes time. The new bill aims to speed up this process, but these broad and ill-defined new powers have significant scope for abuse.
The Department of Home Affairs argues this new framework will not compel communications providers to build systemic weaknesses or vulnerabilities into their systems. In other words, it is not a backdoor.
But it will require providers to offer up details about technical characteristics of their systems that could help agencies exploit weaknesses that have not been patched. It also includes installing software, and designing and building new systems.
Compelling assistance and access
The draft Assistance and Access Bill introduces three main reforms.
First, it increases the obligations of both domestic and offshore organisations to assist law enforcement and security agencies to access information. Second, it introduces new computer access warrants that enable law enforcement to covertly obtain evidence directly from a device (this occurs at the endpoints when information is not encrypted). Finally, it increases existing powers that law enforcement have to access data through search and seizure warrants.
The bill is modelled on the UK’s Investigatory Powers Act, which introduced mandatory decryption obligations. Under the UK Act, the UK government can order telecommunication providers to remove any form of electronic protection that is applied by, or on behalf of, an operator. Whether or not this is technically possible is another question.
Similar to the UK laws, the Australian bill puts the onus on telecommunication providers to give security agencies access to communications. That might mean providing access to information at points where it is not encrypted, but it’s not immediately clear what other requirements can or will be imposed.
For example, the bill allows the Director-General of Security or the chief officer of an interception agency to compel a provider to do an unlimited range of acts or things. That could mean anything from removing security measures to deleting messages or collecting extra data. Providers will also be required to conceal any action taken covertly by law enforcement.
Further, the Attorney-General may issue a “technical capability notice” directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency.
This means providers will be required to develop new ways for law enforcement to collect information. As in the UK, it’s not clear whether a provider will be able to offer true end-to-end encryption and still be able to comply with the notices. Providers that breach the law risk facing $10 million fines.
Cause for concern
The bill puts few limits or constraints on the assistance that telecommunication providers may be ordered to offer. There are also concerns about transparency. The bill would make it an offence to disclose information about government agency activities without authorisation. Anyone leaking information about data collection by the government – as Edward Snowden did in the US – could go to jail for five years.
There are limited oversight and accountability structures and processes in place. The Director-General of Security, the chief officer of an interception agency and the Attorney-General can issue notices without judicial oversight. This differs from how it works in the UK, where a specific judicial oversight regime was established, in addition to the introduction of an Investigatory Powers Commissioner.
Notices can be issued to enforce domestic laws and assist the enforcement of the criminal laws of foreign countries. They can also be issued in the broader interests of national security, or to protect the public revenue. These are vague and unclear limits on these exceptional powers.
The range of services providers is also extremely broad. It might include telecommunication companies, internet service providers, email providers, social media platforms and a range of other “over-the-top” services. It also covers those who develop, supply or update software, and manufacture, supply, install or maintain data processing devices.
The enforcement of criminal laws in other countries may mean international requests for data will be funnelled through Australia as the “weakest-link” of our Five Eyes allies. This is because Australia has no enforceable human rights protections at the federal level.
It’s not clear how the government would enforce these laws on transnational technology companies. For example, if Facebook was issued a fine under the laws, it could simply withdraw operations or refuse to pay. Also, $10 million is a drop in the ocean for companies such as Facebook whose total revenue last year exceeded US$40 billion.
Australia is a surveillance state
As I have argued elsewhere, the broad powers outlined in the bill are neither necessary nor proportionate. Police already have existing broad powers, which are further strengthened by this bill, such as their ability to covertly hack devices at the endpoints when information is not encrypted.
Australia has limited human rights and privacy protections. This has enabled a constant and steady expansion of the powers and capabilities of the surveillance state. If we want to protect the privacy of our communications we must demand it.
The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) is still in a draft stage and the Department of Home Affairs invites public comment up until 10th of September 2018. Submit any comments to firstname.lastname@example.org.