We are reminded almost daily – whether by the gossip magazine we idly browse at the newsagent, morning television, or the casual chat with colleagues – our habitual use of social media has reached dizzying heights. Facebook alone has 1.4 billion daily active users around the world. But in the face of increasingly data-hungry governments and corporations, can we trust social media sites to keep our private information safe?

What is Cambridge Analytica?

If you’ve watched the news at any point over the past few weeks, you’ll know two things: that certain Australian cricketers been very naughty boys, and that Mark Zuckerburg and his fellow Facebook executives may also have been very naughty boys. Zuckerburg has been accused of failing to prevent a massive privacy breach by analytics and marketing firm, Cambridge Analytica (CA). Facebook announced that up to 87 million users have been affected by the scandal, including more than 300,000 Australians whose private data may have been used without their knowledge or permission.

CA shot to worldwide infamy as the campaigning powerhouse behind Donald Trump’s successful election as President in 2016, and later, the Brexit campaign. Since the news broke that CA harvested the data of 50 million Facebook users to target US voters, commentators have been debating the ethicality of its modelling techniques.

The modelling technique used by CA builds what are referred to as ‘psychometric’ profiles. This is a form of very intensive profiling that CA uses to personalise and better target political messaging. Long gone are the days of Myers-Briggs tests and targeted surveys – IBM now has a tool that can infer your personality from Tweets and emails!

While psychometric profiling is pretty common practice, this is the first instance where it has attracted such widespread attention – largely because some claim that it directly influenced two of the most historic votes of the century so far.

Where does Facebook come in?

The trail of breadcrumbs back to Facebook starts with a psychology professor, Aleksandr Kogan, from the University of Cambridge. Kogan created a personality testing app, and Facebook gave him permission to collect participant’s Facebook data, including information on their friends who had not participated in the test. Kogan allegedly sold that data to CA, who subsequently used it in their campaigns, despite this being a breach of Facebook’s rules.

The loophole in Facebook’s Application Programming Interface (API) that allowed Kogan to access the data of the friends of those who used his app has since been closed. But Zuckerberg is still facing questions about Facebook’s conduct. Should Facebook be more transparent with users about how their information is being used? Does Facebook have obligation to keep tabs on how third parties are using our data?

In Facebook we trust?

Unfortunately, using Facebook involves a trade-off between privacy and continuing to use the platform for free.

Facebook’s entire business model is built on selling its user data to other companies so that they can better target their adverts. That’s why you’re seeing the ad for that clothing site you were just browsing and the gym you just googled.

In the aftermath of the scandal, critics have been calling for more regulation of social media platforms, or at the very least, giving users more control over what information Facebook can sell to advertisers.

Zuckerburg will testify before Congress in the coming weeks, a critical first step on the road towards transparency.

Facebook also unveiled a new privacy policy last week that goes some way towards appeasing critics. The policy aims to explain to users what data it gathers but does not change what data the company collects or how it continues to use that data.

Facebook will, however, remove the option to find people using their phone or email address, disallow apps from accessing user data if that person has not used the app for three months, and restrict the information about users’ events that apps are party to.

A need for regulation?

The recent scandal is just the tip of the privacy iceberg and has uncovered an issue that is much bigger than Zuckerberg or even Facebook itself. Chances are, this will not be the last major privacy breach by a corporate giant that we see in our lifetimes.

This week, Australia’s Privacy Commissioner has launched a formal investigation into Facebook to determine whether the Cambridge Analytica scandal has breached the Australian Privacy Act. Under the Notifiable Data Breaches scheme, the Privacy Commissioner, Angelene Falk, has the power to issue fines of up to $2.1 million to organisations that fail to comply with the Act.

Perhaps part of the problem is the lack of regulation, and discrepancies in regulation, when it comes to the usage of private data and social media platforms around the world. From May this year, the European Union will implement the General Data Protection Regulation (GDPR), which addresses the export of personal data outside the EU. The GDPR will not only ensure consistency in data regulation across the EU but will also aim to give citizens and residents more control over their personal data. It may be time that Australia looks into the development of similar legislation.

In the meantime, as social media plays an increasingly integral, and largely unregulated, role in our day-to-day lives, it is up to users of these platforms to start demanding more accountability, transparency and responsible use of our data.

Lead image via Thought Catalog.

In its final sitting week of 2017, the Federal Parliament did us proud.

Of course, the main achievement was legalising same-sex marriage before the year’s end. But the Parliamentary Committee charged with conducting the Inquiry into establishing a Modern Slavery Act in Australia (the Inquiry) also handed down its final report, which has been widely commended for its innovative and ambitious recommendations.

Background

The Inquiry commenced in mid-February 2017 with a pretty demanding mandate. Its Terms of Reference ranged from investigating the nature and extent of modern slavery, both in Australia and globally, to considering international best practice in addressing the problem.

The Committee released its interim report in mid-August, indicating its intent to recommend the introduction of a Modern Slavery Act (the Act) in Australia inspired by similar legislation in the UK. It provided specific support for two aspects of the UK Act: mandatory supply chain reporting and the establishment of an Independent Anti-Slavery Commissioner. In the interim report, the Committee also committed to the consideration of including provisions in the Act relating to orphanage tourism, victim support and Australia’s visa regime.

Even before the release of the interim report, the Government agreed to introduce a supply chain reporting requirement and released a consultation paper seeking comment on a proposed model.

Final report

The final report is both a credit to the Committee members and a testament to the quality of submissions and witnesses who appeared before the Inquiry. Titled Hidden in Plain Sight, the final report provides a detailed and accurate picture of the occurrence of modern slavery in Australia and overseas and how it might best be addressed.

Hidden in Plain Sight is separated into nine sections, each focusing on a different aspect of modern slavery.

The first chapter provides background on the Inquiry, including the initiatives that have already been implemented in Australia to combat modern slavery and an outline of the report’s contents.

The second chapter considers whether there is a need for a Modern Slavery Act in Australia. While many of the provisions of the UK Act are already part of Australia’s legislative framework for addressing modern slavery, the Committee identified several gaps in our approach. It also noted the potential benefit of consolidating Australia’s legislation into a single ‘Modern Slavery Act’ in raising awareness of the issue. Ultimately, the Committee recommended introducing mandatory supply chain reporting and the establishment of an Independent Anti-Slavery Commissioner to bring Australia in line with requirements in the UK. It also made several suggestions for building on the UK Act, including improving support for and protection of survivors of modern slavery.

The third chapter summarises the available data and evidence of the prevalence of modern slavery both overseas and in Australia. The report acknowledges that due to the lack of an agreed definition of ‘modern slavery’ there are significant challenges in measuring its prevalence. However, the Committee maintains that Australia should continue its international leadership role – particularly in the Asia Pacific where estimates indicate that modern slavery is most prevalent – and dedicate more resources to support the Australian Institute of Criminology to develop an enhanced research and monitoring program.

The report then outlines in chapter four in detail the role of the proposed Independent Anti-Slavery Commissioner including the scope of the Commissioner’s powers, level of independence, and its interaction with pre-existing bodies of a similar nature, such as the Attorney-General’s Department and the Ambassador for People Smuggling and Human Trafficking.

The fifth chapter considers the practicalities of introducing a modern slavery reporting requirement for supply chains. Businesses would be required to report annually on the prevalence of modern slavery in their supply chains and a publicly accessible repository of reports would be established. It ultimately recommends that such a requirement be introduced, with a revenue threshold of $50 million and penalties for those who fail to report (applying to the second year of reporting onwards).

The sixth chapter calls for a more victim-centred approach to combating modern slavery. In the past, victim support and protection have been contingent on a victim participating in police investigations and criminal prosecutions. The report makes the laudable recommendation of de-linking access to the Support for Trafficked People Program and the Human Trafficking Visa Framework (including the Bridging F visa and Referred Stay (Permanent) visa) from compliance with criminal investigations. It also recommends extending the period of support for both the Bridging F visa and the Support for Trafficked People Program from 45 to 90 days, with the option of multiple extensions.

Even more encouragingly, the Committee recommends introducing a defence for victims of modern slavery who are compelled to commit a crime during the period in which they are exploited. It also suggests a national victim compensation scheme should be implemented where, at present, the available compensation varies among the states and territories. If the recommendations are implemented by the Government, victims will also have the right to sue those responsible.

In relation to criminal justice responses to incidences of modern slavery, the Committee recommends in chapter 7 a more coordinated approach be adopted. The report also recommends specialised modern slavery training for law enforcement and staff of frontline agencies including Medicare.

Orphanage trafficking breakthrough

The report then addresses in chapter 8 concerns related to orphanage trafficking.

Through the publication of this report, Australia is the first country to formally recognise the connection between orphanage trafficking and modern slavery.

It makes extensive recommendations, including the establishment of a national awareness campaign, the prioritisation of aid and funding to community-based initiatives and family preservation, and introducing minimum ‘external conduct standards’ for organisations operating overseas.

The most innovative recommendation is around introducing a register of overseas institutions that meet these standards. The report then recommends that penalties eventually be imposed on individuals, businesses, organisations and other entities that continue to support unregistered orphanages (by funding ‘orphanage tourism’ visits and/or establishing, funding, or donating to them) after the two year transition period.

Finally, in chapter 9 the report recommends an in-depth review of Australia’s visa framework for migrants to replace or eliminate ‘tied’ visa conditions which often make such migrants vulnerable to exploitation and modern slavery. This recommendation was made in the light of several high profile cases of labour exploitation involving backpackers and working holiday visa holders in the horticultural industry in regional Australia.

Conclusion

While the report is highly comprehensive and represents a strong commitment across the political spectrum towards eliminating modern slavery, more work needs to be done to ensure that the private sector plays its role in complying with the recommendations and actively re-thinking how they can identify and limit modern slavery in the course of business activities.

Hopefully, urgent implementation of the Committee’s report will be at the forefront of the Government’s mind as we head into the first sitting week of 2018.

More on BucketOrange Magazine

• Human Trafficking Training For Flight Attendants Unlikely As Government Sticks Head In Sand
• New Modern Slavery: Australia Leading Fight Against Orphanage Tourism
• Find Another Way To Feel Better About Yourself ‘Do-Gooder’: The Narcissism Of Voluntourism

You may have overheard your colleagues talking about the Netflix show ‘Mindhunter’ recently.

Based on a true-crime book of the same name, ‘Mindhunter’ has quickly attracted a cult following which is hardly surprising given that the infallible David Fincher is an executive producer.

Not one to miss out on a critically acclaimed TV show, I jumped on the bandwagon last week. The day after I finished watching the first season (which I may, or may not, have managed in two consecutive nights), I bought the book. Then I read the ‘sequel’, the ominously titled Journey into Darkness.

Fast forward a few days and here we are. This is the story of my newfound obsession with criminal profiling, how it has assisted in the identification and arrest of some of history’s most notorious serial killers as well as its ongoing and strong influence in pop culture.

Behind ‘Mindhunter’

The ‘Mindhunter’ story follows the genesis and teething problems of the FBI’s ‘Behavioural Science Unit’ (the Unit) in the 1970s when criminal profiling was still a marginalised form of crime investigation and prevention. Up until the 1960s and 70s, theories underlying criminal behaviour were largely influenced by Darwinism. Criminals were not only thought to be born mentally deficient but also biologically predisposed to committing crimes.

While the characters in ‘Mindhunter’ are fictional the criminals, and their crimes, are very real. A co-author of Mindhunter, John Douglas, worked for the FBI for 25 years, interviewing some of the world’s most notorious serial killers. Douglas and his colleague, Robert Ressler, were the first to conduct actual research on ‘serial killers’, a term they coined.

Based on these interviews, the Unit developed the first ever systematic approach to criminal profiling, the ‘Criminal Profile Generating Process,’ which allowed cases to be solved in real time.

Benefits of criminal profiling

Profiling can be used at various stages of the investigative process and is often resorted to when investigators cannot readily ascertain a criminal motive.

It begins at a crime scene where inferences made about an offender’s behaviour which is used to build a profile of the perpetrator or the Unknown Subject (UNSUB). These clues are then used to formulate a detailed picture of the UNSUB’s likely identity.

Based on material facts of crimes and lessons from interviewing serial killers, the Unit generated psychological categories for different types of offenders. Material facts encompass everything from placement of a victim’s body to whether a victim was alive or dead at the time of a sexual assault (in the case of sexually motivated crime).  

Categorisations are used to draw up detailed profiles of UNSUBs in ongoing investigations which ultimately identified many criminals, often to the astonishment of local law enforcement. Raymond Lee Stewart (who went on a killing spree that left four people dead in Rockford, Illinois and two people dead in Beloit, Wisconsin) and the “Clairemont Killer”, Cleophus Prince Jr (who was convicted and sentenced to death in 1993 for the rape and murder of six women in San Diego in 1990) are among those captured using criminal profiling techniques.

Where is criminal psychology now?

Since the 1970s, the phrase ‘serial killer’ and many of the criminal profiling techniques developed by the Unit have become mainstream. Now, criminal psychology is sometimes categorised under the broader umbrella of forensic psychology. 

While the tension between traditional law enforcement and psychology still exists to an extent, criminal profiling is taken much more seriously than in the Quantico basement days of the Behavioural Science Unit. Criminal profiling is now applied not only to violent crime but also to cybercrime.

Since the 1970s, much of the focus of criminal profiling has been on developing the robustness of the science underlying profiling. In recent years, statistical and mathematical techniques have more commonly been employed to analyse crime scene data, and thereby construct profiles, rather than by making behavioural inferences.

It goes without saying that criminal profiling is by no means an exact science and probably never will be given that human behaviour is inherently unpredictable. The reliability and overall validity of criminal profiling continues to be questioned by forensic psychologists and psychiatrists as well as by academics in the field. The criminal profiling process is not standardised, nor is it effective in all cases.

In his book Criminal Profiling: An Introduction To Behavioural Evidence, Brent Turvey dedicates an entire chapter to examples where criminal profilers have actually led police investigators astray. Criminal profiling, for example, infamously failed to lead to the identification and arrest of Dennis Lynn Rader or the ‘Bind, Torture, Kill’ (‘BTK’) serial murderer in Kansas between 1974 and 1991.

Even so, Special Agent Jud Ray was the first member of the FBI’s Investigative Support Unit to testify using criminal psychological profiling. The prosecutor had Ray certified as an expert to testify about the criminal profile he generated which led to the arrest of Kirby Anthoney (who was charged with murdering a mother and her two children). While the judge refused to admit Ray’s criminal profile into evidence, he was able to testify about Anthoney’s post-offence behaviour which spoke to his guilt and led to a jury finding Anthoney guilty.

Special Agent Jud Ray said: 

“In the time that I’d been with the unit, I’d had some reservations about the ability to sit down like that and come up with concepts about what was going on at the scene. But later on I would realise it was not one particular discipline – profiling – that enabled people in the unit to do these kinds of things.

Truly, it is a collection of all the disciplines and an understanding and a good depth of knowledge about forensic psychology, forensic pathology, cultural anthropology, social psychology, motivational psychology – all of the things that when they are properly aligned and understood with a sense of investigative technique behind you, you have all these things kind of synchronised. It is not a panacea in a homicide investigation, but I don’t see how you can effectively work these kinds of cases without those kinds of understandings, all brought to bear upon an analytical process where you walk away saying ‘Hey, I’m reasonably sure that you got the wrong guy, and I’m more than reasonably sure that the guy you’re on now is where you want to expend your energy,’ as I did in this case”.

Should we believe what pop culture tells us?

Opinion about the merit and application of criminal profiling is incredibly divided. Some experts unequivocally denounce profiling as an illusion, while others consider it to be the holy grail of investigative techniques. Perhaps the truth lies somewhere in between.

Although ‘Mindhunter’ is more realistic in its portrayal of the criminal profiling process than something like ‘Criminal Minds’, pop culture has created a public image of criminal profiling that is vastly different to the reality.

In real life, profiling alone is often not enough to identify and capture a perpetrator – the assistance of the public and the investigative acumen of police are crucial.

Developments in science and technology since the 1970s have also removed much of the need for intensive criminal profiling to assist with the identification and arrest of perpetrators. Criminal psychology and profiling now more commonly used to convict perpetrators, rather than to initially identify them, as reliable forensic evidence now plays an integral role.

While criminal profiling may not directly lead to the arrest of offenders as often as pop culture depictions suggest, academics have ascertained that profiling can be useful in enhancing investigative understandings of particular cases.

A 2001 study which surveyed 68 police personnel across 46 departments in the US found that profiling was most useful when it came to the interrogation of suspects and that it was also helpful in directing an investigation. In another study conducted in Britain in 2012, over 75% of police officers found the advice of a profiler useful during investigations.

At the end of the day

Criminal profiling may not be hard science but it can, and does, make a valuable contribution to criminal justice.

Almost a year ago, BucketOrange Magazine published on the dark side of voluntourism. In particular, child traffickers who essentially manufacture orphans by visiting vulnerable communities and convincing parents to give up their children on the promise of an education and better living standards. Traffickers sell these children to ‘orphanages’ and change their identities by falsifying documents meaning that families are no longer able to locate their children. Many charities and NGOs refer to such children as ‘paper orphans’ as they are not genuine orphans.

The demand for volunteering experiences from Western countries in recent years has fuelled a boom in orphanage tourism globally.

According to Unicef, Australia is among the top financial supporters of such orphanages in many South-East Asian countries.

Orphanage tourism, or voluntourism, is big business. According to ReThink Orphanages, in the last
10 years, the volunteer tourism industry has blown up and is now worth a whopping $173 billion globally. Over 8 million children around the world, who have at least one living relative, are living in orphanages.

Orphanage tourism has been described as a new form of modern slavery. Leigh Matthews, founder of ReThink Orphanages says that one of the main drivers behind the explosive growth of orphanages is an increased demand from Westerners who seek volunteering opportunities rather than an increase in the number of orphans.

Of course, tourists and volunteers are unaware that they are actually doing more harm than good by visiting these orphanages which is why public education, awareness and strong leadership by government is urgently required to help put an end to this insidious problem.

Fight against orphanage tourism gains traction

In recent months, the campaign to end orphanage tourism has gained much-needed momentum. Yesterday, Projects Abroad, one of the biggest voluntourism companies in the world, announced that it is severing ties with all overseas orphanages.

In September this year, World Challenge, an organisation dedicated to sending high school students to volunteer overseas pledged that it would end its association with orphanages.

The reality is that Australia has played a prominent role in fuelling the rapid increase in paper orphans for many years with 14% of all Australian schools and more than 50% of Australian universities sending student volunteers and fund-raising efforts to support overseas orphanages.

Education Minister Simon Birmingham says:

It disgusts me that well-meaning students seeking to help vulnerable children overseas might be unwittingly signed up for scam volunteer programs and orphanage tourism that risks further child exploitation.”

In an effort to address the issue, Simon Birmingham has asked the Education Department to work with the Department of Foreign Affairs and Trade on a range of policies to be discussed at the next COAG Education Council in December this year.

Introduction of a Modern Slavery Act in Australia

Orphanage tourism has garnered media attention recently after several submissions to the Inquiry into establishing a Modern Slavery Act in Australia addressed the problem and a number of prominent figures have called for urgent action.

West Australian senator Linda Reynolds is pushing for orphanage tourism to become an internationally recognised form of modern slavery.

Submissions to the Inquiry from Cambodian Children’s Trust, Forget Me Not, ReThink Orphanages, and Hagar International recently prompted a day of hearings dedicated to orphanage tourism.

Tara Winkler, co-founder and Managing Director of the Cambodian Children’s Trust, gave evidence about an orphanage director lining his pockets with donations from well-meaning visitors and overseas donations, as well as physically and sexually abusing the children in his care. While this director profited, children suffered from such gross neglect that they were forced to catch mice to feed themselves.

A parliamentary submission by Kate van Doore, Secretary of Forget Me Not and a law and human trafficking expert at Griffith University, describes children who are deliberately kept malnourished in an effort to facilitate donations from foreigners:

The orphanage was receiving approximately USD$6000 per child per year from foreign donors with no efforts made to reunify the children with their biological families,” says Kate van Doore.

Often orphanages are utilised by paedophiles posing as volunteers and visitors to access vulnerable children,” says Kate van Doore.

The global orphanage crisis is not fuelled by an increase in poverty or the number of orphaned children – both of which are in decline in Cambodia and in many of the other developing countries where sham orphanages are rife – but by overseas donations. Such donations from international organisations, universities and schools support traffickers and the proliferation of orphanage tourism.

What is the government likely to do about it?

It seems the Government has finally got wind of the issue, largely thanks to the efforts of Senator Linda Reynolds who has been advocating for the rights of paper orphans since last year.

There is now strong support among Committee members to ban Australians from visiting orphanages overseas as an immediate priority, ahead of a proposed Modern Slavery Act, which could take another 12 months to implement.

The committee is penning a letter to the Attorney-General, the Hon. George Brandis QC, and the Minister for Justice, the Hon. Michael Keenan, recommending an immediate ban on Australia’s involvement in orphanage tourism. Exactly what constitutes ‘involvement’ is yet to be established. It could refer to funding orphanages, to visiting them, or both. Exactly how the proposed ban will operate in practice is also unclear.

It is possible that the Committee is now considering the implementation of a more transitional model, such as that advocated by Kate van Doore. Along with other experts, she has cautioned against immediately cutting off support to overseas orphanages from Australian schools and universities, instead urging them to ask the right questions, such as whether the orphanage has a reintegration program, before they support an orphanage.

It is also important that such support and resources are redirected to aid agencies and non-government organisations actively working towards locating the biological families of trafficked children and reintegrating them with their communities. An increased focus on supporting vulnerable communities and keeping children within those communities is also critical.

What more should be done?

Legally acknowledging the connection between modern slavery, child trafficking and orphanage tourism as well as raising community awareness about the importance of selecting legitimate volunteer programs are vital first steps.

Part of the solution requires Australians to be informed travellers and to find legitimate ways to volunteer overseas, namely by supporting community-based programs and working with organisations that locate and reunite paper orphans with their families. These include Australian charities such as the Cambodian Children’s Trust, Forget Me Not, and the Born to Belong Foundation.

An important protective measure should be to require Australian volunteers to obtain a Working With Vulnerable People card before departure.

On a global scale, due to of our particular responsibility for contributing to the problem, Australia should also be pursuing a vigorous strategy to bring pressure on relevant foreign governments that have permitted sham orphanages to operate. By withholding foreign aid, we can take immediate steps to ensure that this destructive practice is stamped out.

There is also a real need for more targeted legislation that acknowledges the severity of the harm inflicted on children by this exploitative form of modern slavery. An amendment to the UN Convention on the Rights of the Child that specifically deals with orphanage tourism is one possible approach.

Where we find ourselves 

Orphanage tourism is not yet formally acknowledged as a form of human trafficking but thanks to consistent lobbying by a few key experts, we are well on our way to leading the charge for change in this arena.

It is not often that Australia finds itself a world leader in something that has the potential to make a profoundly positive change by taking strong action to end the abuse of vulnerable children and prevent thousands of others from reaching the clutches of child traffickers.

Through legislation, awareness and public education, we have a real opportunity here to set the standard on the international stage and to spearhead a movement that contributes to ending modern slavery in our lifetime.

Let’s hope the Committee provides further, in-depth consideration of this issue in their final report and recommendations.

More on BucketOrange Magazine

Find Another Way To Feel Better About Yourself ‘Do-Gooder’: The Narcissism Of Voluntourism

Further Information

• Think Child Safe
• Smartraveller
• Better Care Network
• Australian Council For International Development
• Australian Volunteers International – provides opportunities for skilled Australians to contribute to the Australian Government’s aid program.
• United Nations Volunteers – (UNV Program)
• ReThink Orphanages – a group of non-governmental organisations that campaign to end the exploitative trade of children. They advise anyone considering volunteering overseas to research carefully before deciding to support assistance programs and orphanages.
• Forget Me Not – an international NGO originally established to fund best-practice orphanages. It has since changed its focus to finding and returning paper orphans to their families. Forget Me Not also assists children to reintegrate with their community.
• Cambodia Childen’s Trust – focused on reuniting paper orphans with their families and communities.
• Next Generation Nepal – reunites orphanage-trafficked children with their families.

Help us to educate the public about the far-reaching and destructive impact of supporting orphanage tourism by sharing this story with your friends! 

Dig a little deeper though, and you’ll realise as I did that a postal plebiscite is just about the furthest thing from an ideal solution the Government could’ve gone done and thought up.

As it turns out, most people aren’t happy with the whole shebang, except perhaps the more right-leaning members of the Coalition. Former Justice of the High Court Michael Kirby has initially publicly stated his intention to boycott the vote, saying it sets a “dangerous precedent”. He joins countless others who rejected the idea of a SSM postal plebiscite on principle. Former Justice Kirby has, however, subsequently indicated that if there is no High Court challenge, or if there is no successful High Court challenge, he will be voting in the postal survey. And while I’ll still be voting, in spite of the Charlie Foxtrot that this has become, I think it’s important that people are informed before they decide whether or not to vote. So here goes my attempt to guide you through the minefield that is the SSM postal plebiscite.

A ‘novel’ approach (and a dangerous precedent)

A vote of this nature is unheard of in the Australian context.

By definition, it’s not even a plebiscite – it’s a national, non-binding, voluntary survey (which is reflected in its formal name: The Australian Marriage Law Postal Survey). This is a totally novel approach and one that bypasses parliamentary process. Legislation does not need to be passed to hold a national survey of this nature – that’s why it can happen in spite of opposition from the other major parties in Parliament.

Whoever came up with this is a pretty smart cookie, albeit one who perhaps lacks an appreciation for ethics and human rights.

Symbolically, the SSM postal plebiscite subjects the rights of a minority group to the will of the majority, despite the fact that such rights are typically considered to be fundamental and inalienable.

This is a backwards step in terms of social progress, and that’s without even mentioning the vilification that a vote of this nature is likely to expose LGBTI people to. In fact, what Malcolm Turnbull maintained would be a respectful debate has already turned very nasty, and the postal plebiscite isn’t even guaranteed to happen yet (more on that later).

Anti-LGBTI posters featuring the slogan “stop the fags” (not to mention some horrendously inaccurate statistics) appeared in Melbourne last week, prompting Malcs to come out and plead with both sides of the debate to be respectful.

There’s even bigger issues at stake here. The SSM postal plebiscite sets a dangerous precedent that may see other minority rights subjected to a voluntary postal vote in the future. Being in Government is not supposed to be all smooth sailing – if our politicians can’t make the decisions they are elected to make, what is the basis for the social contract between citizen and government?

Show me the money

Under normal circumstances, the Government can only spend money if it has been authorised to do so by statute or where such spending is incidental to the executive power of the Commonwealth. Since the postal plebiscite has no legislative underpinning and does not satisfy the ‘incidental to the executive power of the Commonwealth’ provision, the Government had to find another way to fund the plebiscite.

Enter Finance Minister Mathias Cormann.

The Government is planning to fund the postal plebiscite under the Finance Minister’s Advance, which is provided for in the Appropriation Act and allows the Finance Minister to make $295 million available under certain circumstances. Still with me? Okay, good.

Constitutional challenges

That brings us to the Constitutional challenges that have been brought against the postal vote, which will be heard by the High Court in early September. The postal plebiscite is being challenged on two grounds, the first being whether the Government has the authority to spend money on an ABS-run postal survey. It appears that Minister Cormann may not have saved the day just yet.

The second challenge centres on the constitutionality of directing the ABS to run the survey, and in particular the meaning of ‘statistical information’. Even though ‘statistical information’ is not defined in the Census & Statistics Act, the ABS can’t just conduct surveys willy-nilly. The Bureau can only collect statistical information by means other than the Census on a list of topics, which is contained in the regulations that the ABS is administered under. Even when directed to do so by Government, the ABS cannot stray from this exhaustive list of topics. And while ‘marriage’ is on the list, some experts are questioning whether voters’ opinions can be classed as ‘statistical information’.

This already doesn’t bode well for the Government’s stroke of genius.

For something to be ‘statistical’, it must be weighted to counteract any skewing. This ensures that the views of all demographics are accurately and proportionately represented in the result. The Government is yet to reveal any plans it has to correct the results of the postal plebiscite for the likelihood that it will over-represent the opinions of baby boomers, and under-represent those of the homeless, silent electors, rural populations, and people overseas. Further, the only way to ensure the integrity of the voting process would be to issue voting papers with personal identifiers, which flies right in the face of privacy laws that dictate how the ABS can use the data they collect about us.

This is a recipe for High Court failure if I ever heard one.

What exactly are we to make of all this?

If either (or both) of the High Court challenges are successful, we’ll be back to a Parliamentary deadlock on same-sex marriage. This deadlock would likely persist until the next change of Government.

Even if the postal plebiscite does go ahead, the result will not be binding on the Government, and we could end up back where we were before the phrase ‘postal plebiscite’ was even so much as uttered.

This is an undemocratic, unjust, and downright backwards proposal. I’m living in New Zealand at the moment and, to be honest, I’ve been trying to avoid telling people where I’m from. The accent is a bit of a giveaway but, fortunately, I lived in the UK for 12 years so it’s passable for British (although then I have to answer questions about Brexit so it’s a bit of a Catch-22). New Zealand politics is much more sensible, even with an election fast approaching. Trying to explain how Australia got where it is regarding SSM as if it’s anything but an absurd reality has been painful, to say the least.

In an ideal world, we’d settle this with a fight to the death between Tony Abbott and Malcolm Turn- I mean, uh, a conscience vote on the floor of Parliament. Jokes aside, this is a sad moment for Australian politics and democracy. But, ultimately, any shot at legalising same-sex marriage is better than nothing.

That’s why I’ll be voting if the postal plebiscite goes ahead.

*Editor’s note: BucketOrange Magazine supports marriage equality and encourages our readers to vote in the upcoming postal plebiscite.

Further Information

• How To Enrol To Vote In The Same-Sex Marriage Plebiscite
• Same-Sex Postal Plebiscite: Where The Circus Is Headed From Here
• Everything You Need To Know About The Same-Sex Marriage Plebiscite

For decades, models that are ‘too thin’ have hidden in plain sight in the fashion industry on catwalks and magazine spreads. Recently, France joined the likes of Italy, Spain and Israel in implementing legislation that aims to regulate the fashion and media industries and to promote positive body image by banning unhealthily thin models.

Since May this year, French models have been required to provide a doctor’s certificate as evidence of their overall physical health, the key metric being a healthy body mass index (BMI). Modelling agencies that break the law by employing models whose weight falls below the required minimum can face a fine of €75,000 and a jail sentence of up to six months. An earlier draft of the legislation went one step further, establishing a set minimum BMIs for models but this was abandoned after an outcry from modelling agencies. Now, doctors are in a position to determine a healthy weight for models based on individual weight, height, age and body shape.

An international response to France’s legislation

France’s new legislation has inspired debate in other countries about how the fashion industry should be regulated with respect to the health of models.

Many experts in Australia have raised concerns about our Voluntary Industry Code of Conduct on Body Image (the Code), which permits the industry itself to determine what constitutes a ‘healthy’ model.

While the Code stipulates that models should be “clearly of a healthy weight”, its voluntary nature means that the industry’s wallet, rather than metrics of health and well-being, have been allowed to dictate Australian beauty standards for decades.

Modelling agencies don’t exactly make a habit of employing medical professionals, so why should a few key unqualified individuals be left to determine what constitutes a healthy, or indeed a beautiful, body?

France’s new legislation has divided academics in the field, with some commentators suggesting that it is a legislative overreach. Some of those against introducing similar legislation in Australia have instead suggested that the Code be made compulsory. The extent of the difference this would make is debatable, and little has been done to develop the proposal – what, if any, enforcement mechanisms would be established? How would compliance be monitored?

Given the psychological impact of being bombarded by images of models with unattainable weights and body types – particularly where images have been digitally retouched – not to mention the physical and mental harm that models inflict on themselves in an effort to live up to such an ideal, this issue is too important to be left under the purview of those who have a vested interest in maintaining such unrealistic standards. Just hearing the shocking reports about models eating tissue paper and cotton wool to reduce their weight and secure work should be enough to galvanise any government to take action.

Is a BMI the best metric to be using?

Using the BMI as an indicator of physical health is not without controversy, even outside this context. It has frequently been known to misclassify people and was not designed to be used at an individual level. Some have argued that using a BMI as the sole indicator of suitability to work discriminates against ‘naturally thin’ models. Others still have argued that it fails to consider other relevant factors such as age, bone density, and muscle mass.

Models have also been known to cheat the system, adding weights to their hair to influence their BMI. Even models that have a ‘healthy’ BMI may appear to the average person to be ‘too thin’.

Psychological impact on everyday Australian women

The depiction of unhealthily thin models in the media is a serious problem that extends far beyond the fashion industry and those working in it.

According to Marylin Krawitz:

Media images showing models who are unhealthily thin or who were photoshopped can damage women’s psychological health because women may believe the images depict reality. Photographs of very thin people in the media can amplify women’s dissatisfaction with their own bodies even if they are highly accomplished in other aspects of their lives. Women may believe that the models’ figures in the photographs are typical, when they are not. Seeing these images can lead some women to start dieting and to develop eating disorders.”

According to Eating Disorders Australia, approximately 9% of the general Australian population suffers from an eating disorder with the social and economic cost of eating disorders in 2012 alone estimated to have reached $69 billion.

When it comes to youth body image, Mission Australia’s 2016 National Youth Survey found that Australia is moving backwards. For seven consecutive years, young Australians identify body image as one of their top three personal concerns. The trend has increased from 20.4% in 2012 to 30.6% in 2016 highlighting the need for body image to be recognised and acted upon as a national priority.

According to the Butterfly Foundation, poor body image can be a precursor to serious eating disorders, particularly for young people experiencing mental health issues who are 55.4% more likely to be concerned about body image than someone without a mental imbalance.

But staggering statistics surrounding negative body image are not isolated to young women. A report commissioned by Dove in June 2016 surveyed women aged between 10 and 60 years of age in 13 countries found that 89% of participants cancel plans, job interviews or other important events just because of how they look.

Study participants also listed growing pressure from the media and other sources as contributing to body image problems. 77% of Australians cite “unrealistic standards” set by the media, advertising and fashion industries as one of the biggest contributing factors with 1 in 2 Australian women feeling worse about themselves after looking at images of models in magazines.

Of the countries surveyed, Australia came in with the third worst body image rates (even ahead of the US at 24%), with only 20% of research participants claiming to experience positive body image.

Low body confidence is a serious health problem for Australian women

Last month, the potentially deadly consequences of negative body image and related eating disorders was brought into sharp focus when 18-year-old Rebecca Gallagher was found dead in her University of Sydney dormitory. She had suffered complications associated with anorexia nervosa.

University of Melbourne Researcher, Marie Camin told the Sydney Morning Herald:

Communal living, rigid meal times, and the college culture of sexual objectification could exacerbate eating disorders which affect up to one million Australians, according to a report from Deloitte Access Economics and The Butterfly Foundation. If these girls have those risk factors to begin with and are exposed to a critical appearance focused culture it can serve as a trigger.”

The mortality rate for people who experience eating disorders is the highest of all psychiatric illnesses and over 12 times higher than the mortality rates of people without an eating disorder.

Lack of regulation is exposing Australian women to unnecessary risk. What is the government doing about it?

One 2011 study found that just one in seven Australian magazines fully complies with the Code, although most comply with part of it. Data in this area is pretty scarce, and there are very few other studies tracking the impact of the Code. Anecdotally, one magazine editor did actually inquire about the health of one of the models Alex Perry used at the 2014 Australian Fashion Week.

The most significant (and unfortunately, the most recent) government action in this area was taken up by the Labor Government back in 2009 when the National Advisory Group on Body Image saw the introduction of the Code which encouraged the media and fashion industry not to photoshop models to look “unrealistic and unattainable.”

However, Mia Freedman, who chaired the National Advisory Group that devised the Code in 2009, has noted that it has not been widely implemented and is not being followed.

More recently, the current government expressly rejected the idea of introducing similar legislation to France with the Minister for Women, Michaelia Cash, saying that responsibility lies with the industry and not with legislators. 

Might it take the death of two supermodels from eating disorders like it did in Madrid for the government to wake up to the severity of the problem? How much more does the health of Australian women need to suffer for the government to recognise there is a problem?

As Marylin Krawitz notes in the Journal of Law and Medicine, it’s a situation not dissimilar from government regulation in other preventable health-related areas. Just like cigarette advertisements, exposing the public to magazine covers and billboards that idealise unhealthily thin bodies unnecessarily encourages unrealistic and destructive eating, lifestyle and mental health habits.

Urgent need for legislative reform 

In January 2013, Israel implemented legislation referred to as the “Photoshop law” which requires models over 18 years of age to have a BMI of 18.5 or over. France will also require photoshopped images to be labelled where an image has been modified from 1 October 2017.

Elsewhere, a crack down in London in 2016 saw a ban on advertisements on public transport that could pressurise the public to conform to unhealthy or unrealistic body images, while Norway has taken similar action.

Australia is embarrassingly and inexplicably lagging behind international standards.

A way forward

It’s clear that the fashion industry will not change its destructive practices without mandatory government intervention. Independent regulation to facilitate the promotion of healthy body image and achievable beauty standards is required.

New legislation needs to adopt a holistic approach to the health and well-being of models that goes beyond a generic BMI test. Promoting healthy bodies is important, but so is nurturing healthy minds in an industry notorious for pressuring models to conform to unattainable beauty standards. From a public health perspective, at a minimum, it’s time that the media, advertising and fashion industries are required to disclose images that have been digitally altered (in print and social media) and to commit to promoting body images that reflect reality, not fashion fiction.

Valued at $28.5 billion dollars, giving the Australian fashion industry the continued freedom to ‘self-regulate’ when it comes to women’s health is akin to leaving a two-year-old home alone with instructions not to run with scissors: dangerous and grossly irresponsible.

Further Information

We place a pretty unique amount of trust in the ethics of our dentists given how little we ourselves often know about dentistry. Apart from the large costs associated with most dental procedures, unanticipated and unnecessary dental work can call into question how genuine our consent to a procedure was.

The common practice of fear-mongering in the profession can make us feel pressured to agree to procedures that, in different circumstances, and with more time to process the information, we may not have agreed to. You’re probably all-too-familiar with the anxious feeling of being upside down, giddy from half your blood rushing to your head, at least partially anesthetised, mouth wide open with a dental dam obstructing your breathing and speaking. It’s usually at this point that your dentist makes an ominous or disapproving grunt while saying:

Ooh, yes. Hmmm. Okay, I see you have quite a bit of decay on a few other teeth. While I’ve got you here, let’s get these other teeth sorted. I’ll drill a little and we can see how deep the decay goes. If we don’t do anything today, you could risk losing the tooth completely or we may have to do a root canal at a later stage. What do you think?”

Bewildered, sore and vulnerable you probably respond with something almost unrecognisable as English:

Errrhmm …. Uh huhh …. Oray, ret’s yust do eet now.”

Situations like this – that leave your wallet lighter and your jaw heavier with mercury – have probably left you wondering just what constitutes informed consent when it comes to dental procedures.

Rest assured, dentists must comply with the Dental Board of Australia Code of Conduct for registered health practitioners. The Code of Conduct covers everything from effective communication to non-discrimination in service provision.

What constitutes informed consent?

Doctors are not the only health professionals at risk of being sued for medical negligence. Dentists have a legal obligation to ensure that patients understand the risks and costs (both physical and financial) associated with undergoing a given treatment and are fully informed of any alternatives, including the likely outcome if nothing is done.

The Code of Conduct also includes guidance on informed consent. Good practice in relation to informed consent involves:

1. providing you with information in a way you can understand before asking for your consent
2. obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving you in teaching or research, including providing information on material risks
3. when referring you for investigation or treatment, advising you that there may be additional costs, which you may wish to clarify before proceeding
4. if your capacity to consent is impaired or limited, obtaining the consent of someone with legal authority to act on your behalf and attempting to obtain your consent as far as practically possible
5. being mindful of additional informed consent requirements when supplying or prescribing products not approved or made in Australia, and
6. documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.

The Australian Dental Association provides even more extensive guidance on informed consent, which you can find here, including the need for your consent to a procedure to be obtained without duress. According to ADA guidelines:

Consent may be given in writing, orally or by conduct. In most routine dental examinations and treatments the patient’s consent is obtained verbally. However, where the proposed treatment involves complex or invasive procedures, anaesthesia or sedation, significant expense and/or is of an elective or cosmetic nature, good professional practice warrants the use of a signed written consent form to document the process of consent and confirming the patient’s agreement to the proposed treatment. A signed consent form does not, by itself, provide conclusive proof of a legally valid consent. Evidence of the dentist’s usual practice, supported by appropriate practice records may be required.”

Informed consent is a voluntary decision made based on knowledge and an understanding of the benefits and risks associated with a given procedure, not simply asking your permission before taking a set of dental pliers to your mouth.

As established by the case Dean v Phung [2012] NSW CA 223, dentists can be sued for medical negligence if they ‘over-service’ a patient. In this case, Mr Dean’s front teeth were injured during the course of employment, and his employer arranged for him to see a dental surgeon, Mr Phung. Over a period of 12 months and 53 consultations, Mr Dean had treatment amounting to over $70,000. Mr Dean subsequently alleged that the treatment was unnecessary and ineffective and that Mr Phung must have known this.

It was found that the treatment Mr Dean received constituted a trespass to the person, because it was not capable of constituting a therapeutic response to Mr Dean’s condition, and was thus unnecessary. This understanding of consent requires that the treatment is “reasonably necessary”, as represented by the dentist in question.

If your dentist makes a false representation that a procedure or treatment is reasonably necessary (or similar), and you agree to that procedure or treatment on the basis of this representation, they may have committed medical negligence.

What is notifiable conduct?

“Notifiable conduct” is a further protection afforded to the public in healthcare provisions. This is a mandatory requirement of health practitioners where they must inform the Australian Health Practitioner Regulation Agency (AHPRA) if they reasonably believe that another practitioner has:

1. practised their profession while intoxicated by alcohol or drugs; or
2. engaged in sexual misconduct in connection with their profession; or
3. placed the public at risk of substantial harm in the practice of their profession because the practitioner has an impairment; or
4. placed the public at risk of harm because they have practised their profession in a way that constitutes a significant departure from accepted professional standards.

Making a complaint or report to AHPRA

Patients are not subject to the mandatory notification requirement but you can voluntarily notify the AHPRA about a registered health practitioner on the grounds that:

1. a dentist’s professional conduct is or may be of a lesser standard than that which might reasonably be expected by the public or by the dentist’s professional peers
2. the knowledge, skill or judgment possessed or care exercised by the dentist in the practice of their profession is or may be below the standard reasonably expected
3. the dentist is not or may not be a suitable person to hold registration in the health profession, including, for example, that the dentist is not a fit and proper person to be registered in the profession
4. the dentist has or may have an impairment
5. the dentist has or may have contravened National law
6. the dentist has or may have, contravened a condition of their registration or an undertaking given by the dentist to a National Board;
7. the dentist’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.

Once a notification is made, AHPRA is required to refer the notification to the National Board that registered the dentist and to conduct a preliminary assessment of the complaint. Immediate action may be taken if the National Board reasonably believes that because of the dentist’s conduct, performance or health, they pose a serious risk to persons; and it is necessary to take immediate action to protect public health or safety.

Bringing it home

Doctors and dentists may seem incredibly different, but they are held to the same standards of care.

It’s just as important that the risks of undergoing a root canal are explained to you clearly, and that you understand them, as it is that you understand the risks associated with a surgical procedure or taking a new medication.

Further Information

To make a complaint or report a concern about a dental practitioner, visit the Dental Board of Australia.

The University of Melbourne is reportedly monitoring student movements around campus using mobile Wi-Fi networks, while the University of Sydney apparently matches their student online activities with demographic data to forecast which students may be predisposed to dropping out.

The idea is to assist universities in more accurately predicting a student’s study habits, boost engagement, anticipate susceptibility to failing or withdrawing from subjects and facilitate early intervention.

One of the major issues with the way learning analytics are currently being used in Australia is that students are likely not being informed about this data collection agenda nor providing meaningful consent.

Learning analytics an unreliable predictor of overall student performance

The increasing use of learning analytics among Australian tertiary institutions raises a number of possibly serious ethical, privacy and discrimination concerns.

The University of Sydney is trialling programs that combine first year student demographics from enrolment details with information about engagement during the first 6-weeks of the semester (with online materials, discussions and resources), checking how often a student logs into e-learning systems, submits assessments and attends lectures to determine if the student is at high risk of failing or dropping a course. Students identified as high risk, are contacted by phone by the university and offered additional support.

But aren’t students already under enough pressure to perform in compulsory exams and assessments without the added stress of knowing universities are tracking their every movement around campus, assessing backgrounds and monitoring engagement with online learning and group discussions?

**For the record, some of the most successful graduates have been known to spend most of their undergraduate degrees at the Uni Pub having animated discussions about current affairs rather than spending 8-hours per day in the library.

Those students who are identified as at risk or who appear to be ‘disengaged’ really don’t need the extra burden of having every move on campus watched. This type of ‘surveillance’ could well be a tipping point for many students, even those who are not thinking of dropping out.

Additionally, does learning analytics factor in the kaleidoscopic range of student lifestyles, commitments, personalities and varying study or learning styles?

Unlike high school, university students are adults and capable of self-directed learning. Most students have a range of responsibilities that extend beyond the realm of campus life and which have no bearing on their capacity to complete a degree. For example:

• What if you work in an office job and physically cannot attend lectures but are still able to catch up on recorded materials, readings and complete the required assessments at night?

• What if you are a single mum who puts in enough hours to pass each unit but cannot commit to attending every tutorial or actively participating in online content or discussions?

• What if you are suffering from study burn out, and take a few weeks off to regroup, but have no intention of stopping your course of study?

• What if you are an international student with English as your second language and don’t feel comfortable regularly participating in online discussions but are still able to excel at assessments?

Under the learning analytics scheme, the behaviour of students who happen to not spend much time on campus or participate in online discussions may raise a number of red flags that trigger unnecessary or inappropriate university intervention.

For students already balancing a number of competing life priorities (as most do), this additional expectation which requires students to be seen to be studying according to the university’s preconceived idea of a model student has the potential to cause harm. 

It’s a strategy that could result in a negative study experience for many students. Aside from the potential to undermine personal rights and cause damage to student morale and wellbeing, the continued use of learning analytics is likely to erode student confidence in higher education institutions.

Student privacy rights

Now, this whole justification for improved student retention probably sounds a bit odd or, more to the point, an invasion of privacy.

In the light of the recent Federal Court case Privacy Commissioner v Telstra Corporation Limited [2017], it would seem that if data collected in the learning analytics process is ‘about an individual’ then it is governed by Australia’s privacy laws.

The digital tracking process involved with learning analytics is certainly focused on monitoring the behaviour and performance of individual students (potentially including student IDs) with a view to ultimately identifying those individuals who may be predisposed to dropping out.

According to Australian privacy legislation, this means that universities should be obtaining the consent of every student before they collect and use individual student data.

What does the recent Privacy Commissioner v Telstra case mean?

The Privacy Act 1988 places limitations on the collection of personal information and provides everyone with a range of privacy rights, including the right to know about, and the ability to access, information that is being held about them.

‘Personal information’ is defined in the Privacy Act as:

information or an opinion (including information or an opinion forming part of a database), whether true or not, that is recorded in a material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.”

This case focused on whether anonymous mobile network data, including phone network information such as the IP address, URLs visited on the account, cell tower locations during web use, and data on inbound calls was ‘about’ a person.

The Federal Court decided that the data Telstra holds about customers is only ‘about’ a person when it is linked to other data, which makes it possible to ascertain that person’s identity. As such, the data in question could not be considered ‘personal information’ for the purposes of this case.

While some analysts consider the outcome of the case to be a poor result, it seems clear that this appeal concerned only a narrow question of statutory interpretation which was whether the words ‘about an individual’ had any substantive operation. It was not concerned with when metadata would be considered to be about an individual.

So what does this mean for universities using learning analytics?

Linking students’ online activity to demographic data through learning analytics without permission surely leaves universities that employ learning analytics at risk of being found to breach the Privacy Act.

Such data seems to fall within the scope of ‘personal information’ when compared with the circumstances of the Privacy Commissioner v Telstra case above. Here your identity ‘is apparent and can be reasonably ascertained’ from the learning analytics process.

Unlike Privacy Commissioner v Telstra, in some instances, the data universities are collecting isn’t anonymous. Data linkage isn’t just a hypothetical here, it’s the whole rationale.

To me, this feels like an invasion of privacy masquerading as an altruistic concern for the ‘student experience’. Until we have a case that tests this hypothesis, we will just have to live with the uncomfortable feeling that we are being watched and are helpless to do anything about it.

That is, until, someone decides to make a complaint to their university or to the Privacy Commissioner.

What do you think? Is data collection on university students justifiable, or a clear invasion of privacy? Let us know in the comments!

One such example was the revelation that it is still legal in the UK to require that women wear high heels in the workplace. This all came to light when Nicola Thorp, who has since started a government petition to make it illegal for a company to require that women wear high heels at work, shared her story with the BBC about her first day at major accounting firm PwC. You can find the petition here.

Ms Thorp was told by Portico, the employment agency that runs PwC’s reception, that she would be sent home without pay if she refused to go out and buy heels. To add insult to injury, the firm also specified that the heels be between two to four inches high. Ms Thorp’s story has shone the spotlight on antiquated laws and highlighted the fact that discriminatory dress codes remain rife in the retail and tourism industries. Some of these practices require women to wear non-opaque tights and to not have visible regrowth from hair dying.

Under current UK legislation, employers can dismiss employees who fail to abide by “reasonable” dress code standards. But is requiring women to wear shoes that can cause serious and ongoing health issues, such as damage to foot joints and ongoing lower back, knee, ankle and hip pain a reasonable standard?

Ms Thorp’s petition that would allow women to have the option of wearing flat formal shoes at work has received 152,420 signatures and was debated in Parliament on 6 March 2017. While the debate is non-binding, the government committed to take action to eliminate corporate dress codes that apply to women but not men, including high heel requirements. The government’s position is:

Company dress codes must be reasonable and must make equivalent requirements for men and women. This is the law and employers must abide by it.

Employers are entitled to set dress codes for their workforce but the law is clear that these dress codes must be reasonable. That includes any differences between the nature of rules for male and female employees, otherwise the company may be breaking the law. Employers should not be discriminating against women in what they require them to wear.

The Government takes this issue very seriously and will continue to work hard to ensure women are not discriminated in the workplace by outdated attitudes and practices.”

Already, Ms Thorp’s petition has seen Portico amend their dress code which is now gender-neutral and no longer requires women to wear high heels.

In male-dominated industries, there are already enough barriers to entry into the workforce for women, without the imposition of gendered dress codes. While employers are entitled to require a certain standard of professionalism in their dress standards, there is a definitive line between smartness and sexism.

The State’s most recent efforts this week have been much more successful – the Justice and Community Safety Legislation Amendment Bill (No 3) that passed on the 14th February 2017 amended the Civil Unions Act 2012 to:

allow for the automatic recognition of same-sex relationships that have been formally recognised in other jurisdictions as civil unions under Territory laws”.

Prior to this amendment, same-sex couples who married in another jurisdiction had to register their relationship upon entry or re-entry into the ACT, where heterosexual marriages have always been automatically recognised.

This means while same-sex marriages still cannot be performed in the ACT, the Territory will now recognise those that have occurred in other jurisdictions where such marriages are formally recognised. ACT Attorney-General Gordon Ramsay stated:

The amendments to the Civil Unions Act demonstrate this Government’s commitment to building a Canberra that is progressive, inclusive, and people-centred”.

This is representative of the signalling power that State legislation has, and this is clearly not an area where the ACT Government is going to let the Federal Government drop the ball. As Mr Ramsay further asserted:

Despite this setback, the ACT Government continues to support the recognition of same-sex relationships where possible, and we will continue to advocate for the Federal Government to act on marriage equality.”

These amendments follow the passage of similar legislation in South Australia last year. They were introduced in that State in response to the grief caused when a United Kingdom spouse whose same-sex partner died tragically while the couple were on honeymoon in Australia. The surviving spouse was told that the South Australian death certificate would not acknowledge their marriage, which was recognised in the UK.

The ACT Government is clearly committed to affording as many rights as possible to same-sex couples within the restrictions of Federal law.  In the words of Mr Ramsay:

No one should be made to feel different or lesser because of who they love and we are committed to ensuring that all Canberrans have the ability to express their love and commitment in the eyes of the law.”

The passage of these amendments is not only an important step towards equal recognition but also sends a clear message to the Federal Government that there is a growing impetus behind marriage law reform. Perhaps if more States and Territories make similar legislative changes, the Federal government will take action.

The result? A document of over 750 pages that identifies pretty much every flaw in our current system, and boy are there a lot of them!

It’s the stuff dreams are made of, not least because it (yet again) recommends the adoption of a fair use exception in order to redress the imbalance between the rights of copyright owners and those of consumers and would-be derivative creators.

The report confirms what many advocates of reform in this sphere have known for a while – our intellectual property arrangements are insufficient in an increasingly digital world, and improvement is needed across the spectrum of IP rights.

As immaterial as IP arrangements might seem to the average person on the street, there’s no doubt that having up to date, responsive and, above all, fair IP laws is increasingly necessary lest we sacrifice accessibility in the name of protectionism.

Striking an appropriate regulatory balance between the rights of the creator and those of the consumer will be the difference between living in a world that feels like a product of Kurt Vonnegut’s imagination, and one characterised by a rich public domain, where ideas flow freely.

When novel issues arise, governments are sometimes slow to respond by exercising undue caution. In the IP sphere, this has given rise to all sorts of problematic regulations, namely the so-called “right to be forgotten” in the European Union and the Harmful Digital Communications Act in New Zealand. While the Australian government has been pretty unresponsive to similar challenges, it’s important that we take the recommendations of this report seriously so as not to be led down the overly protectionist path of New Zealand and the European Union.

What are the recommendations?

What I like most about this inquiry is that the Productivity Commission really went back to basics, beginning by outlining why IP arrangements exist, something that appears to have escaped many legislators. The overview of the report provides that:

IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:

•  foster creative endeavour and investment in IP that would not otherwise occur

• only provide the incentive needed to induce that additional investment or endeavour

• resist impeding follow–on innovation, competition and access to goods and services.”

This incentives-based approach is one that should be the basis of any IP law – the first question regulators need to be asking themselves is: “Will this law incentivise creation and facilitate the proliferation of ideas?” Only if the answer is yes should the policy proceed.

While a number of important recommendations flow from the report a few are worthy of specific mention:

1. The first focuses on the need to improve access to enforcement mechanisms for small and medium sized enterprises. To this end, the report recommends the introduction of a specialist IP list within the Federal Circuit Court, making it easier for firms that are not well-resourced to resolve disputes quickly, without the need for litigation, and with lower costs and risks involved.

2. The report also recommends the implementation of an open access policy for publicly-funded research. This means improved access to research material, facilitating its dissemination, use and development.

3. In a similar vein, the report recommends clarification of the law surrounding technological protection measures and geoblocking technology to make it easier for users to access legitimate content.

4. It is unclear under current law whether it is an offence for consumers to circumvent geoblockers (technology that restricts access to content based on your geographical location). The report recommends amending the Copyright Act 1968 to clarify that it is not an offence for consumers to circumvent this technology. According to the report:

Research consistently demonstrates that timely and cost effective access to copyright-protected works is the best way for industry to reduce online copyright infringement. The Commission is recommending making it easier for users to access legitimate copyright-protected content.”

This would be a big win for anyone despairing over limited music catalogues and how feeble the Australian Netflix library is when compared to the U.S version.

Above all, as the report points out, what Australia needs is someone committed to and passionate about IP arrangements to drive reform in this area. Other reforms have fallen victim to misinformation and scare campaigns, largely because this area is so nuanced and multifaceted.

Without someone to champion the recommendations of this report any hope of reform in this area is likely to once again disappear into the ether.

*This article is based on Productivity Commission data, Intellectual Property Arrangements, Inquiry Report.

Have anything to add to this story? Let us know in the comments!

Further Information

To read the full report into Australia’s intellectual property arrangements, visit:

• Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra

Hashtags have proven to be very valuable tools for businesses, with Facebook, Twitter and Instagram posts that include hashtags returning twice the engagement rate of those without one. While hashtags are too short to be afforded copyright protection (they hardly constitute ‘literary works’, now, do they?) and don’t qualify for patent protection because they are not an invention, it is possible to register a hashtag as a trade mark for your business.

#MakeItYourOwn: Hashtags As Intellectual Property (IP)

Trade marks help with brand recognition and differentiating your business from your competitors.

To qualify for trade mark protection, a hashtag must be something most consumers consider to be synonymous with your business (a brand identifier) and not merely a social media tool. In other words, if most people in the general public associate a hashtag with your product or service, it likely qualifies for trade mark registration. Think #sayitwithpepsi, which was registered as a trade mark by PEPSICO last year, or Twisties’ #lifesprettystraight hashtag.

In most cases, the “#” symbol itself is not considered the registerable part of the trade mark, rather, what follows the hashtag (for example, the unique word or phrase) that is checked against the requirements for trade mark protection.

What Is A Trade Mark And How Do I Get One?

Put simply, a trade mark is a unique descriptor – a logo, word, phrase, sound, smell, shape, picture, movement, aspect of packaging, letter, number, or a combination of these – that helps consumers distinguish between your goods and services and those of other businesses.

Unlike copyright protection, a trade mark does not automatically protect your intellectual property. Trade marks need to be registered with the relevant government authority, IP Australia.

Successfully registering your hashtag as a trade mark gives you exclusive rights to that trade mark for 10 years. If another business infringes those rights by using your hashtag without your permission, you can sue them for damages.

Trade mark protection is, however, subject to some qualifications. You must continue to use your trade mark (if you cease using it for three years you risk having it taken from the register), and it must continue to be regarded as a trade mark. This means that if your hashtag becomes a common name to describe goods or services, it is possible for someone else to seek to have your trade mark cancelled through the courts.

What Value Can A Hashtag Provide Your Business?

As a powerful content indexing tool, hashtags are incredibly valuable particularly given their potential to go viral.

Hashtags are recognised by brands as a low-cost marketing technique that, when used correctly, can be a fast, highly-effective and lucrative way to #jointheconversation and drastically increase audience engagement and sales. When used in conjunction with social media influencer marketing, the potential for growth is enormous.

Some of the most popular campaigns in recent memory have even gained traction with mainstream media outlets, leading to even more market exposure (think about the #MyCalvins campaign).

Increasingly businesses are seeking to not only stake their claim on their plot of digital real estate but also to protect themselves against other businesses who seek to cash in on their popularity. For example, where a competing enterprise piggybacks on the success of your social media stream by using a hashtag you created to promote their marketing agenda.

As the digital landscape becomes more and more crowded, businesses are looking to add value to their social media marketing strategy in more novel and distinctive ways. It seems that trade marking hashtags is a growing trend that is likely to gain much more momentum in the future as it becomes an integral part of brand strategy.

So, how will you differentiate your business from the rest of the digital crowd in 2017?

Further Information

For more guidance on the status of hashtags under trade mark provisions in Australia visit:

• IP Australia – What do hashtags mean for trade marks

To make an application to register your hashtag for trade mark protection visit:

• IP Australia – Hot to apply for a trade mark

Voluntourism – a combination of volunteering and tourism – has become an incredibly popular way to travel and experience new destinations. But the industry has a dark side. Rising to prominence as a by-product of privileged, mostly Western, tourists wanting to ‘do good’ and tick a box on their CV, voluntourism is increasingly being recognised for what it is – a major problem with a global impact.

What is voluntourism?

Also known as volunteer tourism, volunteer holidaying and volunteer travel, voluntourism is the convergence of international volunteering and tourism.

Basically, it is a rapidly-expanding industry that involves travellers volunteering their time for worthy causes or charities. Commonly this involves work in underprivileged communities in developing countries for social or environmental purposes. The ultimate goal of many programs is to engage in sustainable community development or conservation work that alleviates poverty and restores buildings or other structures or assists children in orphanages (among other things).

The practice of voluntourism is heavily promoted as an alternative way to gain an authentic travel experience. For many volunteers, this creates an artificial expectation of responsible tourism – ‘do good’, and ‘feel good’ while you do it.

Increasingly, however, questions have been raised around the ‘misconceived idealism’ of voluntourism and whether the practice is purely an exercise in narcissism for travellers. More often than not, rewards for host communities are not commensurate with the swift ego boost for volunteers and the overall profit travel companies derive from organising these activities.

Why is voluntourism a problem?

Sustainable development projects are among the most problematic ways to volunteer overseas.

Work that could have been completed by local skilled labourers is given to tourists with no experience in building infrastructure, in aid of giving them a warm and fuzzy feeling and the illusion of altruism. In many cases, host communities are left with dilapidated and unstable structures that are useless within a few months.

Is voluntourism fuelling the paper orphan trade?

Arguably the worst way to spend time volunteering overseas is at orphanages.

While Australia does not allow unskilled tourists or volunteers to have unchecked access to vulnerable children, voluntourism gives well-intentioned, unskilled and unqualified overseas visitors unfettered access to children.

Despite the documented negative psychological and emotional effects residential care can have on children, the number of orphanages has increased in many developing countries. This is to meet the rising demand from tourists even though the overall number of genuine orphans has decreased.

Increased demand for such volunteering opportunities has seen the emergence of a new business model. Owners of sham orphanages travel to poor communities and convince vulnerable families that their children would be better off in a boarding school with access to education.

Once recruiters sell children into an orphanage, documents are falsified and their identities are changed. Due to name changes, families are no longer able to locate their children. Many charities and NGOs refer to such children as ‘paper orphans’ as they are not genuine orphans. Nepal, Cambodia, Ghana and Uganda are among the countries worst affected by the paper orphan trade, with UNICEF estimating that of the
8-million children living in institutions globally, more than 80% are not genuine orphans.

According to The Guardian, Nepal’s bogus orphan trade is being fuelled by voluntourism:

It is a business model built on a double deception: the exploitation of poor families in rural Nepal and the manipulation of wealthy foreigners. In the worst cases, tourists may be unwittingly complicit in child trafficking.”

The shocking result? Families in rural areas are manipulated into giving up their children who are exploited to generate money for a profit-driven system, either by their residence which is used to encourage orphanage donations from tourists, or by being trafficked. The fees orphanages charge volunteers line the pockets of owners, while children are often abused and live in appalling conditions.

The orphanage profits in many ways from the presence of these ‘paper orphans.’ Some orphanages encourage volunteers to come and spend time with the children, profiting through the fees they charge and lower care costs due to the free labour that volunteers provide. Others have their ‘orphans’ dance or sing to encourage donations.” – The Conversation.

Unfortunately, if you travel to developing countries with the intention of volunteering at orphanages without doing your due diligence, you are feeding into a corrupt system that does more harm than good. It’s a misguided attempt to support poverty-stricken communities that often becomes more of an exercise in narcissism than it does in promoting the common good.

Western volunteers have, perhaps, unwittingly endorsed the commodification of children with money and ignorance.

Of course, many of us don’t even realise this problem exists. While Save the Children and UNICEF have campaigned against voluntourism for years, the issue has failed to gain the traction it deserves.

According to Save The Children:

Child protection specialists have also raised concerns about the presence of short-term foreign volunteers in residential care institutions and the potential for them to create confusion around identity and culture.”

Illegality of voluntourism

Voluntourism attracts over 30,000 tourists to Nepal each year.

With widely publicised volunteering programs, few foreigners consider whether it is actually legal for them to do so. In its report on The Paradox of Orphanage Volunteering, Next Generation Nepal reports that international volunteering is illegal for many tourists.

Clause 19 of the Immigration Act 1994 states:

(1) A foreigner having obtained a visa as a tourist or his family member
pursuant to these Rules shall not be allowed to work, with or without
receiving remuneration, in any industry, business, enterprise or
organisation during his stay in Nepal.

(2) A foreigner having obtained a visa pursuant to these Rules shall not be
allowed to carry out any work other than that for which purpose he has
obtained the visa.

Day-to-day, however, most visitors do not apply for work permits. The dichotomy between the official position and what happens in practice has presented additional challenges to combating unethical voluntourism programs.

A way forward

The devastating effect that well-meaning efforts can have on local communities is a harsh reality. But it is one that we must come to terms with if the damaging impact of voluntourism, including the fraudulent trade in paper orphans, is to end.

If you are considering volunteering your time and labour overseas next year, make sure your expectations are realistic. Research legitimate and ethical programs dedicated to recruiting skilled volunteers which can, and do, have a positive impact on local communities. Avoid visiting and donating to orphanages as this perpetuates a cycle of child trafficking.

If you wish to volunteer with children, choose organisations that are dedicated to locating and reuniting paper orphans with their families and communities. The best volunteer programs provide support, opportunities and skills development for families and children within their existing community.

The fact of the matter is that as long as a market for voluntourism exists, paper orphans will continue to be created and exploited. To disrupt this fraudulent trade, perhaps it is time that we find another way to feel better about ourselves.

Further Information

• Australian Volunteers International – provides opportunities for skilled Australians to contribute to the Australian Government’s aid program.

• United Nations Volunteers – (UNV Program)

• ReThink Orphanages – a group of non-governmental organisations that campaign to end the exploitative trade of children. They advise anyone considering volunteering overseas to research carefully before deciding to support assistance programs and orphanages.

• Forget Me Not – an international NGO originally established to fund best-practice orphanages. It has since changed its focus to finding and returning paper orphans to their families. Forget Me Not also assists children to reintegrate with their community.

• Cambodia Childen’s Trust – focused on reuniting paper orphans with their families and communities.

• Next Generation Nepal – reunites orphanage-trafficked children with their families.

We are lucky to live in a country where copyright protection is automatically afforded to creative works, a saving grace that makes Australia’s copyright law imperfections almost palatable.

For musicians, the stakes can be high when it comes to copyright infringement. Contrary to what many Australians may think, there is no such thing as the innocent use of a song, nor is it a ‘victimless crime.’ Most artists derive much of their annual income from royalties, so when an individual or corporation uses a song without permission, without a music licence or without paying royalties, it deprives that artist of a reliable source of revenue.

For Australian musicians, if someone uses your song without your permission it is not only an infringement of your moral rights as a creator of that work but also your economic rights.

So, what are your legal options if you discover someone using your song without your knowledge or permission?

Copyright And The Music Industry

In any situation where your music is broadcast, performed or reproduced, you have a right to royalties.

Copyright protection is automatic in Australia as soon as your original song has been written or recorded.

There are three main situations where copyright infringement of your music can occur.

1. Where a song is used by another person, or corporation, without your permission and without paying a music licence.

As recently as last year, NSW Premier Mike Baird unwelcomely discovered that even politicians are not impervious to making copyright infringements.

Baird found himself in hot water over the unauthorised use of R.E.M’s song ‘Everybody Hurts’ in a YouTube take-off of Jimmy Kimmel’s Mean Tweets series. Baird made use of the track without seeking permission or paying a music licence. YouTube removed the clip after Warner Chappell, the band’s publisher, made a copyright claim overnight.

2. Where another musician uses a substantial part of your song without your knowledge or permission and without paying for a music licence.

For example, by using a substantially similar melody, key, beat, harmony or song structure.

In 2010, Men at Work songwriters Colin Hay and Ron Strykert were involved in a high-profile, expensive and drawn out case over the similarities between their famous song ‘Land Down Under’ and the flute line in the children’s song ‘Kookaburra Sits in the Old Gum Tree.’ The Federal Court’s decision in favour of Larrikin Music (the copyright owners of ‘Kookaburra’) reinforced that musicians can be liable for plagiarising a substantial part of another musician’s work without approval.

3. Where another musician samples part of your song without your permission and without paying a music licence.

Vanilla Ice became the centre of a copyright infringement claim for sampling Queen & David Bowie’s ‘Under Pressure’ in his hit song ‘Ice Ice Baby’ without consent and without a music licence.

The case was settled out of court as it was clear that Vanilla Ice had merely altered the rhythm of the baseline in an effort to avoid giving credit, paying royalties, seeking permission and a music licence.

A Run-Down Of Your Rights

As a musician, you have three main rights:

1. Reproduction

This allows you to reproduce the music you have created in any format.

2. Performance and communication

This right is exercised whenever your music is broadcast on TV or radio, when you perform a song live or distribute your music on the internet.

3. Adaptation

This protects your status as the sole person who can create derivative works, such as music sampling, unless another person has your permission or a licence to do so.

As a creator of music, you not only possess copyright ownership of the music itself but also in the lyrics and any sound recording of your music.

You also own moral rights to your music, including the right to have your work attributed to you by name, the right to stop anyone else attributing your work to them and the right to protect your music from being used in a way that hurts or damages your reputation.

As An Artist, What Does This Mean For You?

If you discover that someone is using your musical work without your permission, you have the right to seek recompense.

Here’s what you can do to stick it to the infringer:

• Firstly, identify who used your song without your permission.

If it is a small team of indie filmmakers or school students making a project for their media class, it may be wise to let it go and take a ‘give-a-little get-a-little’ approach.

On the other hand, if it is a large corporation or mainstream media outlet who is profiting from your blood, sweat, and tears without a licence and without paying you the royalties to which you are entitled, it may be worthwhile taking things further and seek a legal remedy.

You may wish to seek an injunction, which prevents any further unauthorised use of your music, or damages as compensation for the loss you have suffered as a result of the infringement. In either of these scenarios, you will need to pursue legal advice from a lawyer who specialises in entertainment or copyright law.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered.

• Secondly, ascertain how much of your song has been used.

Copyright is infringed only where a substantial part of your copyrighted music is used without your permission, and where this infringement is not covered by any of the fair dealing exceptions.

The Copyright Act balances your rights as the copyright owner with the general public allowing the general public to use a substantial part of copyright material without first seeking your approval. This only applies for certain approved purposes called ‘fair dealing’ defences.

This means that if someone uses your music for any of the below purposes, then they have a defence to your copyright claim:

• research or study
• criticism or review
• reporting news
• giving professional legal advice; and
• parody or satire

If the copyright infringement does not fall within any of the above purposes, it is important to contact the person whom you believe has infringed your copyright as soon as possible after you become aware of the infringement.

• Thirdly, you may wish to send an initial letter of demand.

Your letter should make that person aware that you own exclusive rights to your music, that they have infringed your rights, and how you would like the situation resolved. You should also include a date that you would like to receive a response by, and that you have the right to commence legal proceedings if an adequate response is not received within that timeframe.

Before sending your letter, it is not only important that you consult a legal professional, but also that you consider the outcome you would like to achieve.

For example, would you like the person who has infringed your copyright to:

Simply stop using your music? This is a simple request if your music is being used on a website, for example, as it can be removed quickly.

Continue using your music, but to pay a licence fee?

Pay compensation to you for the loss you have incurred as a result of the unauthorised use of your music?

The Arts Law Centre of Australia has a downloadable template of a letter of demand.

Groundless Threats

Before sending a letter of demand, or making any claims that someone has infringed your copyright, it is critical that you seek legal advice.

If you send a threatening letter and the person has not actually infringed your copyright, this can be considered a groundless threat. This means that the person you have accused of infringing your copyright can turn around and sue you for making an unsubstantiated threat of legal action.

What Can I Do To Protect My Music In The Future?

As a first step, you can set up a Google Alert to receive daily inbox alerts whenever your music is being mentioned or used on the internet. This will help you to keep track of who is using your music, when it is happening and where it is happening without your consent.

To protect economic rights to your music, you can register with a collecting society.

These bodies oversee payment of royalties, look after your copyright and grant permission for others to use your songs (either by performing them or recording them) if they pay a fee.

Australia has a few main collecting societies:

• Australasian Performing Rights Association (APRA) which covers situations where another artist wishes to play your songs live.
• Australasian Mechanical Copyright Owners Society (AMCOS) which covers instances where someone wishes to make their own recording of your song.
• Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA) which covers sound recordings.

You may also wish to consider getting an International Standard Recording Code (ISRC). This is the international identification system for sound recordings and music video recordings which provide a method to automatically identify recordings for royalty payments. In Australia, this is administered by ARIA.

Conclusion

The area of copyright law can be a minefield at the best of times.

For musicians, the first step to protecting your rights is understanding them. Knowing what your options are if you believe they have been infringed by an individual or corporation, and when to seek legal advice, is the best way to secure a favourable outcome.

Bear in mind that there are time limits for commencing legal proceedings in copyright cases, so it is important to see a lawyer as quickly as possible if you suspect your copyright has been infringed.

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)

News of the release of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 exposure draft was probably drowned out by the tiresome election coverage and any hope of immediate action in the first few months of the new government is pipe-dreaming. This is indeed a bothersome state of affairs for copyright reform advocates.

Copyright law is the misunderstood angsty teenager of the legislative family, one that is very often overlooked despite being of increasing importance in an ever digitised world. While the proposed bill does not go all the way to making the changes that the Australian Law Reform Commission’s (ALRC) Report Copyright and the Digital Economy recommended in 2014, it does make some modest and important improvements to the existing copyright framework.

The main changes proposed in the bill are designed to streamline and simplify the Copyright framework to:

• make it easier and simpler for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material
• provide simple, clear guidelines for libraries, archives and key cultural institutions to make preservation copies of copyright material
• align the period of protection for unpublished works with that of published works to provide libraries, archives and other cultural institutions with greater opportunity to use, and provide public access, to unpublished works
• ensure that search engines, universities and libraries have ‘safe harbour’ protection if they comply with conditions aimed at reducing online copyright infringement
• importantly, the bill also seeks to streamline and simplify the existing copyright exceptions and limitations for the use of copyright material by the disability sector.

Protection Of Unpublished Works: Respect For The Creator Or Unnecessary Stymying Of Creativity?

The purpose of copyright law is to protect the expression of the work, rather than the ideas and facts it contains.

However, affording indefinite protection to unpublished works has not only locked up expression, it has also locked up facts. Take, for example, Captain Cook’s recipe for carrot marmalade, undoubtedly a valuable contribution to society, but one that cannot be published because it is contained in a book of Cook’s correspondence.

The National Library holds this among many other letters written and received by notable figures, including Jane Austen and Dame Nellie Melba, all of which cannot presently be digitised or copied.

Advocates of retaining the indefinite protection afforded to unpublished works argue that it is a necessary outgrowth of the need to respect the wishes of the creator, who never wrote or received those letters with the intention of publishing them.

This argument, although initially persuasive, is easily refutable.

Copyright law was established with the intention of encouraging creativity, where the promise of protection and corresponding reward is thought to be necessary in order to incentivise the creation and dissemination of works in the first instance. Unpublished works clearly do not fit within the broader goal of copyright work, since they weren’t created with the rewards of publication in mind.

It is more persuasive to suggest that unpublished works should not be protected by copyright law at all.

How Does The Proposed Bill Change Things?

The bill seeks to make the protection terms for published and unpublished works the same.

Currently, unpublished works have indefinite copyright protection, and published works are copyright protected for the lifetime of the author, plus 70 years.

The proposed bill aims to apply what is known as the “plus 70” law to unpublished works, an unprecedented step in the quest to encourage creativity.

The proposed bill provides libraries, archives and key cultural institutions with ways around their present inability to preserve unpublished works.

While the copyright protection of unpublished works isn’t going anywhere any time soon, the bill seeks to provide an acceptable compromise, one that affords unpublished works the same term of protection as published works, and allows institutions to make ‘preservation copies’ of such works.

If the Bill does not pass, creating such copies will remain illegal, which leaves our existing copyright laws with a serious deficiency.

The Copyright Act 1968 and associated legislation is excessively complex, archaic and restrictive. In the light of this, the Bill also seeks to streamline educational statutory licence provisions, supporting access rather than creating unnecessary red tape and overly bureaucratic processes. This will improve the quality of teaching in schools by providing simpler and more accessible licensing arrangements regarding copyright material.

Submissions to the consultation regarding the exposure draft of the Bill closed on 12 February 2016. Once the new Parliament settles in, hopefully the bill will be re-introduced with amendments that take account submissions received. Maybe then we will finally see action in an area that has been crying out for reform since the internet of things was born.

Conclusion

It’s the first step, albeit small, towards realigning copyright law with public and industry sentiment and need.

The passage of the bill through Parliament will hopefully ignite discussion surrounding more contentious areas of copyright law, namely the introduction of a fair use exemption. There is still much work to be done in establishing how much protection and control creators should be afforded over their work, and how this can be balanced with the need to ensure public access to such works and promote a rich and vibrant public domain.

Have anything to add to this copyright discussion? Let us know in the comments section below!