Last week, another paramedic was assaulted on the job amid growing public outcries over attacks on emergency workers, with the government being put under major pressure to toughen the law.

Between 2009-2014, more than 24,500 healthcare employees reported being a victim of a violent incident at work. By February this year, 6,245 code blacks were reported in South Australian public hospitals for 2016-17, compared to 4,765 at the same time in 2015-16. As much as 90% of emergency department staff have experienced some type of violence over the course of their professional career.

In 1999, the Australian Institute of Criminology ranked the health industry as the most violent workplace in the country. US statistics reveal that healthcare workers are 5 to 12 times more likely than other industries to experience violence in the workplace.

Intoxicated patients have assaulted more than 9 in 10 emergency nurses and doctors in the last twelve months. So what more can, and should, be done to protect vital healthcare workers from experiencing violence, and the threat of violence, at work? This piece explores these questions.

Doctor / patient relationships: Built on trust, morphing into fear

In the early 20th century, the philosophy underpinning doctor-patient relationships was a paternalistic model. But this has since evolved into a more collaborative approach.

This contemporary model, reinforced by cases such as Rogers v Whitaker, involves the sharing of information, doctor-patient collaboration, and mutual agreement on a proposed treatment plan. There has, however, been a noticeable shift in community attitudes towards the medical profession, with many patients appearing dismissive of medical advice and preferring information found on the internet.

High-profile Sydney orthopaedic surgeon Dr Munjed Al Muderis, an Iraqi refugee, faced ongoing online abuse, harassment, defamatory comments and death threats from a patient over a period of years. The patient claimed that Dr Al Muderis botched a hip operation procedure, which reduced sensation to his penis and testicles. There was no evidence to support the patient’s claims and any medical negligence or wrongdoing was discounted by the Health Care Complaints Commission. Dr Muderis was awarded $480,000 in damages for defamation after the judge described him as the “perfect plaintiff”.

In an already challenging profession, where clinicians experience high rates of depression and suicide, are we doing enough to protect Australian healthcare professionals?

Recent high profile tragedies such as the one punch attack of Dr Patrick Pritzwald-Stegmann and the shocking killing of Gayle Woodford clearly demonstrate that current practices are inadequate.

Mental health concerns rapidly on the rise

The health and welfare of Australian medical practitioners is not only being influenced by physical violence but also by non-physical forms of abuse such as aggressive language and intimidating behaviour.

According to HeadsUp’s Final Report on Workplace Bullying in Australia, employees who are bullied have an increased risk of suffering from serious mental health conditions.

As has been extensively documented, health professionals (and students) are already at a heightened risk of mental health issues, depression and suicide.

Lack of appropriate support is a common obstacle for medical staff seeking mental health assistance.

Some commentators believe that mandatory reporting laws, which came into effect in 2010, have a chilling effect on addressing mental health concerns among medical practitioners. At a basic level, these laws require GPs and other doctors to report concerns relating to ‘fitness to practice’ in fellow health professionals, including ‘problems’ such as mental health issues.

Against the backdrop of mandatory reporting legislation, practitioners may be hesitant to access mental health support if it will mean a ‘black mark’ against their name. It is also a significant barrier to adequately addressing violence against health staff.

A 2009 Senate Inquiry into the then proposed mandatory reporting laws demonstrated concerns that the legislation would discourage practitioners from seeking mental health treatment, and that exemptions from mandatory reporting should be created for treating health practitioners. Western Australia is the only jurisdiction where such recommendations have been implemented and national mandatory reporting laws remain an ongoing concern among the medical profession.

Law reform to protect practitioners

On Monday this week, Cabinet agreed that any attack on Victoria’s emergency service workers would be treated as a category-one offence (the same as murder and rape) by the courts under tough reforms to be imposed by the State Government.

Elsewhere, criticism of national mandatory reporting laws has been picked up by politicians.

The Council of Australian Governments (COAG) announced its intention to work with State and Territory health departments, as well as the Australian Medical Association (AMA), to provide national legislative protection for doctors seeking treatment for mental health and stress-related conditions.

Following the 13 April 2018 COAG meeting, Ministers unanimously agreed to remove barriers for health practitioners seeking treatment for their own mental health conditions. However, both the AMA and the Royal Australasian College of General Practitioners have been concerned about the wording of the COAG statement, with too much room for doubt and confusion as to how affected practitioners would be handled.

The government has investigated the need for further reforms in regard to practitioner mental health, as well as the protection of hospital staff from violence.

The NSW Inquiry into Violence Against Emergency Services Personnel recently published recommendations acknowledging the high levels of violence against emergency services personnel and made nearly fifty recommendations to improve the safety of emergency staff. The government has since responded to these recommendations.

Conclusion

The rise of violence against hospital staff and the deleterious impact that physical and emotional abuse can have on a medical practitioner’s safety and wellbeing is starting to receive the community and political acknowledgment it deserves.

It is imperative that both healthcare workers and the broader community continue to apply pressure on the government to make urgent reforms in this space lest health practitioners are physically and mentally destroyed by their working environment and the public they serve.

Science fiction writers long-predicted that technological developments could lead to a world where it would be impossible to differentiate between a robot and a human. Recent and rapid advances in automated vehicle technology mean that we could see these predictions become reality within the next decade. One important question we should, perhaps, be asking ourselves is whether there will still be a role for humans to play?

In the first of this two-part series, we explore the future of automobile technology: the driverless car. Part 1 will discuss the current state of the technology, while Part 2 will explore the likely legal-regulatory framework that will be required to accommodate these unprecedented advances.

Over 40 American corporations are currently working on autonomous vehicles, including companies such as Uber, Lyft and Google (Waymo) with two major ‘driverless’ frameworks being pursued.

You, robot

A spectrum of automaticity is being used by driverless designers to drive this technology forward.

The option originally favoured by a majority of technology giants due to its perceived safety and more gradual transition from current automobiles is the ‘Level 3 Autonomous Capability’ model. This design allows cars to be driven by a computer but with a human presence behind the wheel to take over in an emergency.

Waymo has demonstrated relative success with this model. Its automated vehicles have driven 1,023,330 cumulative kilometres over the past year with 124 disengagements (where a human needed to take over) and an average of one disengagement every 8,252 kilometres.

Most major players such as Google, Audi, Uber, and Lyft are realising that designing an autonomous car that relies on human intervention when things go pear-shaped is difficult. The design and engineering requirements are practically insurmountable and humans are generally unpredictable, suffer inattention and have poor reflexes.

Human error accounts for 90% of crashes. Of the 1.7 million miles that Google’s automated cars have driven, 11 accidents were all attributed to human error.

Truckinator: Judgement Day

Despite the reduction of accidents that fully automated cars promise, the implementation of this new technology does have the potential to disrupt societies and economies.

Automated trucks are a recent entrant into the United States market and there are plans for trucks to become fully automated within the coming decade.

8.7 million people are involved in the American trucking industry. In Australia, this numbers 250,000 people, not to mention the many individuals who live in small towns along frequent trucking routes who have the potential to be seriously impacted by the implementation of this technology in Australia. With the potential loss of millions of trucking jobs, the industry will need to pivot and adapt in the face of autonomous vehicles.

It has been predicted that by 2035, sales of autonomous vehicles will reach 95.4 million annually (75% of all sales), with 54 million self-driving cars in use.

Are governments ready? Are current processes, procedures and systems equipped to deal with the influx of driverless cars? It is reasonable to assume that this technology will mark a major step forward for many modern societies and could result in many foreseen and potential unforeseen ramifications. It may well be that the capitalistic notion of car ownership is the first thing to go.

Metropolis

Uber has been leading the charge away from the model of individual car ownership on the basis that driverless cars will make car ownership both overly expensive and redundant.

In the near future, it’s possible that driverless cars could be called at the press of a button for personal use.

Some of the more obvious and immediate benefits include:

• a reduction in the number of vehicles on the roads
• a  decrease in air pollution
• a reduction in costs to consumers
• no more public car parks
• no more speeding fines
• the possibility that road signs will be removed
• a reduction in the cost of personal transport

There is also that possibility that autonomous cars could be fashioned into gyms, cinemas or bedrooms.

Deus ex machina?

The influx of autonomous vehicles has the potential to significantly alter city living. There may be great opportunities for increased living spaces, improved public areas and green spaces. City centres could be transformed into clean and engaging places.

The inconvenience of driving could also be a thing of the past and may encourage the further spread of a commuting population away from city centres.

Governments, regulatory bodies and the private sector will need to make changes to account for this rapidly developing technology. With only 6% of civic plans in America currently considering the potential effect of driverless technology, a long-term vision and structured planning are required in Australia.

In Part 2, we discuss the need for implementation of a legal-regulatory framework and consider the question: Is Australia adequately prepared to meet the challenges of driverless technology on the road ahead?

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However, several recent international court decisions indicate that linking to certain content online may actually infringe copyright laws.

So how are you potentially exposing your startup to legal risk online?

Balancing access to creative works vs intellectual property rights of creators

Ongoing public policy debate attempts to balance the need to provide community access to creative material and artistic works while also protecting the intellectual property rights of content creators.

One of the primary objectives of copyright law is to incentivise the creation and dissemination of knowledge and creative works by providing a creator with exclusive rights in their work. Due to hyper-interconnectivity and the widespread dissemination of content online, the internet presents a big challenge to content creators when it comes to protecting their creative works and intellectual property rights online.

A recent decision of the Court of Justice of the European Union, however, has the potential to change underlying assumptions about the way information is shared by websites through hyperlinks.

The missing, and possibly infringing, link

In GS Media BV v Sanoma Media, the Court of Justice of the European Union considered whether a publication that linked to private images of a female model through File Factory and ImageShack constituted a copyright infringement.

While visitors to GS Media’s website could access the images by clicking on a hyperlink in its article, the photos were also freely and publicly available online. Internet users were able to download the photos by visiting ImageShack directly.

Sanoma operated an ‘adult entertainment’ business that owned the rights to the images. Sanoma had requested that GS Media stop linking its users to the images, however, GS Media repeatedly ignored these requests. The court ruled that GS Media was in breach of Sanoma’s copyright since
GS Media had profited from inserting the hyperlink to the images on its own website. The issue was that GS Media had made these pictures publicly available through a communication to the public and had profited from that link, while Sanoma had not authorised publication of the images.

The court found that GS Media had knowingly provided a gateway for internet users to acquire files that they could otherwise access free of charge with no barriers.

Elsewhere, in the factually similar United States case of Intellectual Reserve v Utah Lighthouse Ministry, linking and contributory infringement of copyright were at issue. In that case, one party had linked internet users to material that the other party did not wish to be viewed. The court found that there had been a copyright infringement.

Linking this to an Australian context

In 2006, the Federal Court ruled on the interaction between hyperlinks and copyright in the case ‘MP3s4FREE.’ The website’s content almost exclusively provided visitors with links to external websites that stored music files.

Users were able to scroll through the MP3s4FREE website, select and download music for free in spite of protests from record companies and copyright holders. Mr Cooper, the owner of MP3s4FREE, was found to have infringed the Copyright Act 1968 (Cth), as he had considerable power to prevent the download and copy of copyrighted sound recordings as well as the communication of this copyrighted material to the public. While the Federal Court reached a similar conclusion to international decisions, judicial reasoning, in this case, focused largely on Mr Cooper’s ability to prevent the copyright infringement.

You are the weakest link, goodbye

While this area of copyright law has not been thoroughly tested in court in Australia, there are other aspects to hyperlinking that may infringe Australian copyright.

Hyperlinks that contain logos or symbols of the linked website that are sufficiently substantial parts of a copyrighted document may, for example, infringe copyright legislation.

The most obvious example is linking to copyrighted music or a video where the hyperlink contains a ‘preview’ of the audio or video file. Similarly, there may be ramifications for infringing trademark law with this practice.

O, link twice

The above cases are just a few recent examples of the courts wading further into the murky waters of the internet.

If you own a website, whether privately or for your startup, hyperlinking to illegal and copyright-infringing content is a risky practice. Courts around the world are ready to attribute liability to linking websites, even if you are not actually hosting the copyright-infringing content. Merely acting as an online gateway that refers your site visitors to copyright protected material can be sufficient so be cautious when it comes to inserting external links to your pages.

The main point to take away from the cases is that even though judicial reasoning across various jurisdictions has certainly varied, courts are attributing a significant amount of responsibility to websites that provide a gateway to copyright-infringing content.

So, before you create links to all and sundry on your website, think twice and ensure that you connect your customers or visitors to authorised content in an authorised way, or you may be found to have a rather heavy linking problem.

What do you think about copyright infringement and hyperlinking? Let us know in the comments!

It’s an exciting era of other-worldly developments that presents smart Australian lawyers with a rare opportunity to advance their legal expertise in a new niche area. The question is: what laws currently govern commercial activities, such as mining, in space?

Star laws: Current legal framework and regulation

The current legal framework that governs space activities and regulates ‘space law’ is administered by the United Nations (UN). Key devices are the Outer Space Treaty (the Treaty) and the Committee on the Peaceful Uses of Outer Space (COPUOUS). The Treaty was negotiated at the height of tensions between the Russian Space Agency and NASA as they both fiercely competed against one another during the Cold War.

The Treaty provides for the free use of space for exploration and scientific investigation, and for States to be responsible for the private activities of their national persons. COPUOUS is the body that administers the Treaty and ensures that no space or celestial bodies are claimed by nations – a fundamental principle of current space law – drafted to prevent an era of ‘space-colonialism’.

The International Institute of Space Law (IISL) has said that there can be no ownership of celestial bodies, as there is no territorial jurisdiction or the existence of a territorial sovereign competent to confer titles of ownership. Although the Treaty evidently promotes the use of space for exploration and scientific discovery, IISL has seemingly defeated the claims that anyone could have to ownership of any celestial areas or bodies.

If this is the case, however, how can companies claim ‘space-land’ and even ‘space-resources’, to mine, use or build upon, if there appears to be no ownership?

Galaxy quest: the global space industry

The United States, China, and Russia, as the major powers in space exploration, have policies, legislation, and guidelines that foster or restrict engagement by their citizens with outer space. Russia’s current policy regarding space exploration is that the cosmos should be used to obtain scientific data and to utilise extra-terrestrial resources.

China has set up policies that provide for the registration of objects and persons that go into space in order to collect resources, seemingly authorising such activity by its citizens and companies.

Countdown 3, 2, 1: Australia set to enter the space race

A federal review of Australia’s space capabilities has been announced with a report to be released in March 2018. Many experts believe that Australia has the infrastructure and capacity to make significant breakthroughs in a $420 billion global space industry.

Currently, Australia ‘scrapes’ for satellite data from other countries, is unable to launch its own satellites into space and is falling far behind most countries with regard to space research and development. The review represents a transitional point with the potential to boom into the development and commercialisation of the Australian space industry.

This review, which is set to coordinate Australia’s space efforts, could unlock the industry for Australian lawyers. South Australia already has sixty space-related companies that have shown a keen interest in the outcome of the federal review.

The outcome of the federal review may present a unique opportunity for forward-thinking lawyers to hitch a ride in the space race by specialising in a new area of legal practice.

The United States has made significant progress in promoting the commercial exploitation of space resources. In late 2015, it passed the Commercial Space Launch Competitiveness Act (Competitiveness Act), which directs the executive branch to facilitate commercial exploration for, and the recovery of, space resources by US citizens.

The Competitiveness Act entitles a US citizen to keep asteroid or space resources that have been obtained through commercial programs in space, allowing a citizen to sell or deal with such resources as they choose. This piece of legislation was passed under the Obama administration and has been heralded as a historical document likely to spur the development of off-Earth mining.

Guardians of the galaxy: the next chapter

There has been some discussion on the subject of space mining which focuses on the lack of sovereignty in space. Some commentators argue that this limits the possibility of profiteering from private investment.

However, especially with the advent of the Competitiveness Act, it would seem that the absence of territorial sovereignty actually provides the freedom for corporations to use outer space and celestial bodies as they wish. It is not necessary, for example, for corporations to own space or a celestial body for the purposes of using, mining or building on it. The principle of free exploration and use has its origins in the use of the sea, where the high seas are free from territorial sovereignty and every state has the right to enjoy the ‘freedom of the high seas’.

Evidently, corpus iuris spatialis (space law) is an area of law that is still evolving. It would seem that the only restriction on space resource usage is that such usage, according to the Treaty, must be for the benefit of all humanity. Due to the principle of free exploration, a company operating in space may not need to own space territory – and any structures created on celestial bodies would have ownership vested in their creator.

The journey continues

It will be interesting to see what exciting developments in the area of space law lie ahead at an international and domestic level and how the law develops to regulate the operations of corporations and individuals in space.

Starry-eyed Australian lawyers who are interested in tapping into new challenges and working in a rich and incomparably vast area of legal practice such as space law would be advised to get involved in this industry early … before it takes off!

Would you be interested in a career in space law if the opportunity presented itself? Let us know in the comments!