23 May 2015

Nationhood

'Canadian Constitutional Identities' by Eric M. Adams in (2015) 38(2) Dalhousie Law Journal (Forthcoming) comments
 Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms. 
Adams states
Today, Canada’s constitution serves as an object of law for lawyers, a set of rules for governments, and as a repository of politics for political scientists and journalists. A constitution is, of course, all of those things, but a constitution also consists of the  stories a nation tells about itself. A constitution finds full meaning and expression in the multiple, diverse, layered, and conflicting claims made about its histories, purposes, and defining characteristics. Just as personal identity is forged and sustained in a narrative of the self, constitutional stories are driven by the desire to make coherent these varied strands of constitutional text, perspective, and experience. Such stories serve as a living oral history, always in the process of being made and re-made in the telling. A particular constitutional story may be dominant or subversive, popular or obscure at any particular moment, but regardless these stories draw from, and also give shape and meaning to, the constitution itself as well as the constitutional law, politics, and culture in which it is embedded. The creation of constitutional meanings, in this sense, are the products not only of judges, politicians, and civil servants, but of a broader “interpretive community” comprising lawyers, scholars, journalists, artists, and citizens. Not all are equally influential, but all may play a role in telling more or less compelling stories of constitutional significance. The stories themselves tell us much in their content and omissions, proponents and critics, tenor and tone. In this, Sanborn was surely right: a constitution endures in its capacity for affection, in the stories it tells, in the identities it fosters. 
This article argues that a great deal of constitutional law, culture, and politics can be explained in terms of the making, contestation, and transformation of such struggles to define the balance of federalism in the relationship between the provinces and federal government, to ongoing controversies concerning the place of Quebec in the federation, the application of individual rights and their proportionate limits, judicial remedial discretion and deference, and aboriginal rights and sovereignty, Canada’s constitution has been defined as much by a struggle to determine Canada’s constitutional identity as to interpret its formal constitutional text. My purpose in this article is to examine one particularly enduring strand among the battles over Canada’s constitutional identity: the search for “constitutional autochthony,” or, what Peter Oliver usefully describes as the “constitution of independence”. The term autochthony originates in the comparative constitutional work of Kenneth Wheare as a way of explaining the twentieth-century desire of some Commonwealth countries, including Canada, to constitutionally separate from Great Britain. But Wheare intended the term to gesture to something altogether deeper and less tangible than mere autonomy: authochthony, he observed, described the desire for an indigenous constitutionalism “sprung from their own soil.” 
Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada ... Desire ... a Constitution similar in Principle to that of the United Kingdom,” much of Canada’s constitutional history can be understood as the search for an autochthonous and distinctly domestic Canadian constitutional identity, one tied up with, but not limited to, independence, a domestic amending formula, and recognition and expression of the diverse political, social, and cultural realities of Canada. That yearning for a uniquely Canadian constitutional identity emerged from and textured Canada’s constitutional jurisprudence, scholarship, and culture just as it came to drive the constitutional politics of Confederation, independence, patriation, and the Meech Lake and Charlottetown Accords.  
This article has three parts. Part I sketches more fully what I mean by constitutional identity, charts the forces which create those identities, and argues that constitutional identities play a crucial role in Canadian constitutional law, politics, and culture. Part II identifies constitutional nationalism as an early and influential strand in the formation of Canadian constitutional identity. As I have explained elsewhere, constitutional nationalism “locates its demand for national self-determination, ideology, and sovereignty in formal constitutional instruments. It takes seriously the legal authority of the constitution to effect change but also the symbolic role of the constitution as an instrument to construct and cement national identity, unity, and purpose.” Early efforts to define Canadian constitutional distinctiveness by Thomas D’Arcy McGee, among others, transformed into calls for constitutional autonomy from Great Britain, and, ultimately, the search for complete constitutional independence, alongside a distinct and indigenous expression of Canadian constitutionalism. Part III examines arguments for a Canadian constitutional identity within the context of the political, cultural, and constitutional debates of the 1960s. In discussions about the new national flag, national unity, and repatriation of the constitution, Canadians were at once unified by a desire for constitutional self-definition, but also on the cusp of profound disagreement about how new constitutional arrangements might best express and reflect the nation’s true nature and essential characteristics.

Breaches

The UK Independent reports on yet another data breach (with the standard response from the database owner).

This time it is Adult FriendFinder, with the a hacker supposedly exposing "the personal and sexual details of nearly 4 million users on one of the world-leading dating sites".

The data reportedly includes sexual orientation, preferences, partnership status, names, email addresses, postcodes, dates of birth and IP addresses. The coverage includes data regarding previous members who had deleted their accounts.

The service is claimed to have  63 million users

Response?
FriendFinder Networks Inc understands and fully appreciates the seriousness of the issue. 
We pledge to take the appropriate steps needed to protect our customers if they are affected.
Meanwhile the NY Times reports on another health sector breach in the US -
CareFirst, a Blue Cross Blue Shield plan, on Wednesday became the third major health insurer in the United States to disclose this year that hackers had breached its computer systems and potentially compromised some customer information. 
The attack could affect as many as 1.1 million of its customers, but CareFirst said that although the hackers gained access to customer names, email addresses and birthdates, they did not obtain sensitive financial or medical information like Social Security numbers, credit card information and medical claims. The company, which has headquarters in Maryland and serves the Washington area, said the attack occurred in June and described it as “sophisticated.” 
Chet Burrell, CareFirst’s chief executive, said the company contacted the Federal Bureau of Investigation, which is investigating attacks against the insurers Anthem and Premera. … 
Federal officials have yet to label the breaches at Anthem and Premera Blue Cross as state-sponsored hackings, but the F.B.I. is effectively treating them as such, and China is believed to be the main culprit, according to several people who were briefed on the investigations but spoke on the condition of anonymity. There are indications the attacks on Anthem, Premera and now CareFirst may have some common links. … 
The Breaches at Anthem, which is one of the nation’s largest health insurers and operates Blue Cross Blue Shield plans, and Premera Blue Cross, based in Washington State, were much larger. The one at Anthem may have compromised the personal information of 79 million customers and the one at Premera up to 11 million customers. 
Anthem has said the hackers may have stolen Social Security numbers but did not get access to any medical information. Premera said it was possible that some medical and bank account information may have been pilfered.

Payment

'Bitcoin: Economics, Technology, and Governance' by Rainer B√∂hme, Nicolas Christin, Benjamin Edelman and Tyler Moore in (2015) 29(2) Journal of Economic Perspectives 213-38 comments 
Bitcoin is an online communication protocol that facilitates the use of a virtual currency, including electronic payments. Bitcoin's rules were designed by engineers with no apparent influence from lawyers or regulators. Bitcoin is built on a transaction log that is distributed across a network of participating computers. It includes mechanisms to reward honest participation, to bootstrap acceptance by early adopters, and to guard against concentrations of power. Bitcoin's design allows for irreversible transactions, a prescribed path of money creation over time, and a public transaction history. Anyone can create a Bitcoin account, without charge and without any centralized vetting procedure—or even a requirement to provide a real name. Collectively, these rules yield a system that is understood to be more flexible, more private, and less amenable to regulatory oversight than other forms of payment—though as we discuss, all these benefits face important limits. Bitcoin is of interest to economists as a virtual currency with potential to disrupt existing payment systems and perhaps even monetary systems. This article presents the platform's design principles and properties for a nontechnical audience; reviews its past, present, and future uses; and points out risks and regulatory issues as Bitcoin interacts with the conventional financial system and the real economy.

22 May 2015

Principles

'Judicial Independence From The Executive: A First-Principles Review of the Australian Cases' by Rebecca Ananian-Welsh and George Williams in (2015) 40(3) Monash University Law Review [PDF]
develops a first principles conception of judicial independence. It does so by way of synthesising the large volume of domestic and international materials that describe the idea. It then analyses the extent to which Australian judges have realised the concept through constitutional and other legal development. The article establishes the very significant steps taken by Australian judges to assert their independence from the executive, but equally it also identifies some important gaps. Means of remedying these gaps are discussed, including through the further development of constitutional principles and other non-judicial means. 
The authors comment
Judicial independence is a central pillar of Australia’s constitutional system. Courts themselves play a pivotal role in maintaining this, and recent years have seen a surge in cases and significant and rapid developments in the area. These developments have advanced and reinforced protections for judicial independence, particularly with respect to the independence of judges and courts from the executive branch. In this article we consider how the judiciary has asserted its independence from the executive through an examination of the case law of federal, state and territory courts, and assess whether these cases have fully realised the principle. 
In order to measure the extent to which courts have succeeded in establishing their independence from the executive, we must first identify what judicial independence means and what it requires. Courts, judges, lawyers, international associations, commentators and experts have tackled these same questions in countless forums. The result is a diversity of terminology and approaches describing and giving content to the notion of judicial independence. In Part II we synthesise the leading international and Australian resources to arrive at a first principles conception of judicial independence. Through this review we identify four key indicators of judicial independence, namely: appointment, tenure and remuneration; operational independence; decisional independence; and personal independence. 
These indicators frame our analysis of the Australian cases in Part III, and reveal that the jurisprudence has focused on some aspects of judicial independence at the expense of others. In addition to revealing gaps in the case law, our analysis highlights areas of unrealised potential and suggests ways in which the law might develop to more comprehensively protect judicial independence at the federal, state and territory levels. We discuss these gaps and areas for further development in Part IV. Ultimately, our analysis demonstrates the importance of judicial vigilance in respect of every facet of judicial independence.

Debt Collection and Credit Referencing

The 88 page Australian Competition and Consumer Commission report Research into the Australian debt collection industry [PDF] considers practice in the "debt collection industry", a continuing area of concern regarding consumer protection and privacy law.

The ACCC states
With over 500 businesses offering some form of debt collection service in Australia and collectors making up to 65 million contact attempts each year, the report reveals the scale and breadth of the industry which affects many Australian consumers … Debt collection can be a stressful experience for consumers, and can exacerbate existing financial pressures. Debt collectors that do not comply with the debt collection guideline may cause harm to disadvantaged or vulnerable consumers and become a target of ACCC action.
The report notes that
 The ACCC and the Australian Securities and Investments Commission (ASIC) both enforce Commonwealth consumer protection laws relating to debt collection and have recently updated their joint Debt collection guideline for collectors and creditors. This guideline assists creditors, collectors and debtors to understand their rights and obligations, and ensures that debt collection activity is undertaken in a way that is consistent with consumer protection laws. 
Issues of particular concern identified in the report include -
  • Some in the sector not abiding by the Guidelines and the law who cause considerable detriment to vulnerable and disadvantaged consumers. Problems that can be traced back to the retailer or service provider. 
  • Consumer advocates are particularly concerned about debt collection practices within the energy sector. 
  • Billing issues, management of hardship, disconnections and the referral of debt to multiple debt collectors were cited as concerns. 
  •  Widespread concerns about the practices of Credit Repair businesses. While not considered part of the debt collection industry these businesses can charge consumers large fees –consumer advocates state that these are sometimes larger than the debts involved – for support that is freely available to them from other agencies such as industry ombudsman schemes and financial counsellors. 
  • Debt collection processes that impose addition costs that can add to the detriment for consumers already in financial distress.
The report states
The debt collection industry in Australia is relatively competitive, with over 500 businesses offering some form of debt collection service. While the industry is dominated by a few larger players, the sector is mainly comprised of small businesses, with 6 3% generating less than $200,000 in revenue and 95 % employing less than twenty people. 
Such a divergence has created an interesting competitive dynamic. The major users of debt collection services tend to favour the larger debt collection businesses that have the necessary scale and sophistication to meet their requirements. This means smaller firms are more likely to specialise in niche markets where demonstrated industry knowledge can provide a competitive advantage. Developments in technology, new customer segments and attitudes to compliance have driven significant change in the industry over the last five years. Technology has created economies of scale, which has seen the majority of collection activity shift to call cen tre based operations allowing for consolidation within the sector . 
Technology has also increased internal oversight and compliance as digitisation allows for call recording and improved record keeping. The compliance environment is complex . Debt collectors are required to comply with a number of state and federal legislative and regulatory instruments. Banks, telecommunications providers and energy companies have been long - term users of debt collection services. However, over recent years the industry has seen clients emerge in new sectors, including government, health care and education. 
Key Findings 
Technology and scale have improved compliance, but there are still challenges for both large and small businesses

  • Large collections businesses now have automated systems and procedures to ensure compliance with provisions relating to the timing, frequency and appropriateness of contacts . However, this results in a substantial number of contacts to consumers, which is the underlying driver of complaints. 

  • Small businesses may not be able to implement automated systems, and are theref ore heavily reliant on training, support and a compliance culture to ensure that they are meeting their obligations. 
Issues with debt collection can vary by sector; different debt drives different behaviours and outcomes 

  • There is a clear distinction between issues arising in relation to credit regulated debt and non - credit regulated debt, such as the energy and telecommunications sectors. This distinction occurs because of the nature and value of the respective debts. 

  • The identification and adoption of best practice approaches in the debt collection industry requires a comprehensive understanding of those industries that are refer ring or selling debt. 

  • Debt collectors state a preference for collecting debt from those businesses that have rigorous processes in place to ensure debt quality and hardship issues are appropriately managed prior to a debt being referred or sold. 
Rising costs and the nature of supply have created a particular set of challenges for the energy sector 

  • Consumer advocates have raised concerns about debt collection practices within the energy sector. Billing issues, management of hardship, disconnections and the referral of debt to multiple debt collectors were cited as areas of concern.

  • The debt collection industry believes that a sig nificant portion of complaints are driven by billing issues, disputes, or a failure to identify hardship, rather than debt collection conduct. 

  • Energy retailers acknowledge the issues. There was general agreement that the sector is highly transactional in nature, which creates some unique challenges within the sector.
Debt collection approaches that impose additional costs can result in detriment for consumers in financial distress

  • Consumer advocates report that it is common for some debt collec tors or solicitors to impose additional fees and charges on outstanding debts. From a consumer perspective, such fees can exacerbate any existing incapacity to pay. 

  • Debt collection businesses note there are standard terms and conditions that allow for rec overy of costs associated with debt collection. However, consumer advocates suggest that these terms are not commonly provided and if they are, they either do not provide for recovery of costs or the relevant term is arguably unfair.
Increased regulatory oversight has led to an improvement in debt collection behaviour

  • Regulatory measures such as the Australian Consumer Law (ACL), the Australian Credit Licence, external dispute resolution (EDR) schemes and the ACCC/ASIC Debt Collection Guideline for Collect ors and Creditors have resulted in improved behaviours within the sector. 

  • Increased regulation and oversight, and the associated compliance costs, ha ve contributed to industry consolidation. There is a noticeable difference between the compliance environments of larger and smaller collection businesses. This may indicate that larger businesses have been more effective in implementing compliance frameworks and promoting a compliance culture.
Despite variations in state and territory licensing regimes, the key obligations of debt collectors when dealing with consumers are made clear by the ACCC/ASIC Debt Collection Guideline

  • Debt collectors are currently required to respond to a range of national and state based laws, regulations and licensing requirements. This has created confusion, or additional administrative burden, for some businesses in the sector.

  • The ACCC/ASIC Debt Collection Guideline is the regulators’ interpretation of the key consumer protection legislation. It represents best practice for the industry, and makes compliance obligations clear.
Non - compliant debt collection practices result in significant detriment to vulnerable and disadvantaged consumers. Regulators are willing to take appropriate action in such cases

  • Regulators and consumer advocates generally acknowledge that complaint s are relatively low as a proportion of total debts referred for collection. 

  • However, complaints regarding debt collection are highly emotive and can lead to both financial and psychological stress for consumers. Consumer advocates also point to research that suggests debt collection complaints are grossly under - reported. 

  • Debt collection often affects consumers who are experiencing hardship in various forms. Non - compliant debt collection activity can be particularly harm ful to vulnerable or disadvantaged consumers. The protection of vulnerable and disadvantaged consumers is an ongoing priority for the ACCC .
Credit repair businesses often increase costs for consumers with debt problems

  • While credit repair services are not part of the debt collection industry, there is a consensus between industry, regulators and consumer advocates that these businesses can add unnecessary costs for consumers who have an outstanding debt. 

  • Stakeholders noted that credit repa ir agencies charge consumers large fees for support that is freely available to them from credit reporting agencies, industry ombudsmen, the Office of the Privacy Commissioner and financial counsellors.

14 May 2015

Tinkering

'Freedom to Tinker' by Pamela Samuelson in Theoretical Inquiries in Law (Forthcoming) comments
 People tinker with technologies and other human-made artifacts for a variety of reasons: to have fun, to be playful, to learn how things work, to discern their flaws or vulnerabilities, to build their skills, to become more actualized, to tailor the artifacts to serve one’s specific needs or functions, to repair or make improvements to the artifacts, to adapt them to new purposes, and occasionally, to be destructive. This article aims to explain why the law should protect a zone of freedom to tinker because of the many benefits that tend to arise from tinkering.
I conceptualize freedom to tinker as having several dimensions: it entails, first, an intellectual freedom to imagine what one might do with existing artifacts to learn more about them; second, an intellectual privacy and autonomy interest in investigating and exploring those artifacts in which one has a property or other legitimate interest, especially when the investigation is done in one’s own premises; third, a right to build one’s skills by testing, analyzing, and interacting with existing artifacts; fourth, a liberty interest to become more actualized as a person through tinkering; fifth, a right to distill what one has learned from tinkering and disseminate the results of one’s research to others; sixth, a right to repair that which is broken and make other uses of artifacts as long as one is not harming the interests of others; seventh, a right to innovate based on what one has learned through tinkering; and eighth, a right to share innovations that result from tinkering with others if one chooses to do so and build a community around the innovation.
Freedom to tinker has existed for millennia. Yet it has existed largely without a formally recognized legal identity. It has simply been an unregulated zone within which people were at liberty to act unobstructed by others (so long as they did not harm others). The main reason why it now seems necessary to articulate what freedom to tinker is and why it needs to be preserved and legally protected is because freedom to tinker is being challenged by several recent legal developments.
Part I observes that users have considerable freedom to tinker with artifacts that are not encumbered by IP rights and are thus in the public domain. Trade secrecy, patent, and trademark laws have doctrines that generally provide user-innovators with considerable freedom to tinker. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Part II explains the substantial limits that copyright law and sometimes contract law place on user rights to tinker with and modify computer programs. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. Part II also discusses the constraints that anti-circumvention rules place on freedom to tinker. These rules outlaw most reverse engineering (“circumvention”) of technically protected copyrighted works and the making or offering of tools to enable such reverse engineering. Part III concludes that because tinkering with existing artifacts generally “promote[s] the progress of science and useful arts,” as well as other fundamental values, IP rules should be interpreted, or if necessary, adapted, to permit user tinkering that achieves this constitutional goal.

08 May 2015

Designs

The Advisory Council on Intellectual Property (ACIP) report on Designs Protection [PDF] has been released.

The report states that in 2012 ACIP asked
to investigate the effectiveness of the designs system in stimulating innovation by Australian users and the impact the designs system has on economic growth. 
The following Terms of Reference were endorsed:
Inquire, report and make recommendations to the Australian Government on the operation and effectiveness of the Designs Act 2003 in supporting innovation, having regard to: any new opportunities for enhancing the Act’s effectiveness and efficiency; and  any deficiencies and unintended consequences arising from the Act’s implementation.
ACIP has approached this review with three broad questions in mind:
1. Has the Designs Act ‘provided a simple, cost‐effective designs system that provides Australian designers with more effective rights’? 
2. Are the provisions in the Designs Act operating as intended? 
3. Should policy decisions implemented in the Designs Act be reconsidered in light of experience with the new designs system and international and technological developments in the intervening decade?
As a result of the review, ACIP sees a clear need for increased harmonisation with international practices and treaties as this will benefit users of the system and help streamline its administration for the Government. ACIP considers that several of the changes introduced under the Designs Act need to be revised. Particularly, ACIP recommends compulsory examination for renewed designs, removal of the option for publication of designs as an alternative to registration and the re‐introduction of an opposition process. 
There is clear scope to improve design protection and clarify the law for both owners and third parties. ACIP sees benefits in introducing a grace period to protect against inadvertent disclosure of a design, changing the terminology used in the Act to clarify the distinction between a registered design and a certified design and improving consistency between the designs and copyright legislation. ACIP also recommends that the enforcement of design rights be extended to include authority for the Australian Customs and Border Protection Service to seize infringing goods. 
ACIP has also identified a number of minor, technical changes that could be made to the Designs Act to correct anomalies, streamline the processing of design applications and enhance the effectiveness of the system. 
In the course of the review ACIP considered the impact of new technologies on design protection. Consistent with the views of many stakeholders, ACIP considers that reform to address challenges posed by technologies such as 3D printing would be premature. ACIP considers that there are questions about the role of the designs protection system in Australia’s IP system as a whole. ACIP believes that if an overarching review of IP is undertaken by an independent body the role of design law and its interaction with other systems should be part of this review. ACIP would recommend that design law should be specifically included to avoid the common temptation to focus on the more prominent IP systems – patents, copyright and trade mark – and neglect smaller IP systems such as design.
ACIP offers the following recommendations
R 1 ACIP recommends that the Designs Act should be amended, as soon as practicable, to address anomalies identified by stakeholders and to adopt certain specific reforms that will bring Australian designs law into better alignment with equivalent laws of major trading partners, international treaties and proposed international treaties. 
R 2 a. ACIP recommends that Australia promote efforts to harmonise and streamline procedures for acquiring international registered design rights. b. Australia should commence an investigation into the implications of joining the Hague Agreement, including consulting with WIPO. Australia should monitor usage of the Hague system and in particular whether usage of the system increases as a result of recent expansions of its membership. c. Australia should work actively through the Designs Law Treaty process to promote harmonisation of filing requirements. 
R 3 ACIP recommends extending the maximum term of protection of designs to 15 years only if a decision is made to join the Hague Agreement. 
R 4 ACIP recommends changing the terminology for a registered but uncertified design to make it clear that the design does not, until certification, confer enforceable rights. ACIP suggests the term ‘uncertified design’ should be used. 
R5 ACIP recommends removing the option of the publication regime (ie without registration) from the designs process. 
R 6 ACIP recommends requiring a request for examination of the design by the first renewal deadline (five years). 
R 7 ACIP recommends introducing a system of opposition following certification, if recommendation 6 is accepted. 
R 8 a. ACIP recommends improving the process for multiple design applications by reducing the fees for each additional design added to the application, in accordance with the original proposal of the ALRC. b. ACIP further recommends that details regarding the eligibility of designs for inclusion in a multiple design application be developed with a view to consistency with relevant international treaties and proposed international treaties and harmonisation, if possible, with requirements in other major offices where Australians are likely to file design applications. 
R 9 ACIP recommends automatic publication at six months after the filing date, with the possibility to request publication earlier if desired, and with an amendment to the innocent infringer defence in subsection 75(2) of the Designs Act. 
R 10 ACIP recommends retaining the requirement of distinctiveness and section 19 of the Designs Act in its current form. 
R 11 ACIP recommends allowing amendment of the Statement of Newness and Distinctiveness in ways that identify particular visual features of the design as new and distinctive, up to the point of certification. 
R 12 ACIP recommends introducing a grace period of six months before the filing date, together with a prior user defence. Applicants who rely on the grace period to protect the validity of their design rights should be required to file a declaration to that effect. 
R 13 a. ACIP recommends retaining the current requirement that protection relates to the visual appearance of a whole product. b. ACIP recommends that, in investigating opportunities for international cooperation in design application processes and requirements with other offices overseas, IP Australia consider whether allowing partial product registrations would enhance harmonisation of application requirements in a way that would substantially advantage Australian applicants. If significant advantages to Australian applicants can be shown and IP Australia can confirm that such protection does not give rise to substantial practical or legal issues overseas, then ACIP would support reform of Australian law. 
R 14 ACIP recommends that the treatment of virtual or non‐physical designs be reconsidered, for example by allowing consideration of the product in its active state, not just its resting state, when considering validity. 
R 15 ACIP recommends that steps should be taken to make section 18 of the Designs Act consistent with the overlap provisions of the Copyright Act 1968
R 16 ACIP recommends the Government consider introducing (with appropriate resourcing of Customs) border protection measures that align with the Trade Marks and Copyright Acts (Notice of Objection Schemes) to allow for the seizure by Customs of alleged design infringements which are identical to certified designs. 
R 17 ACIP recommends retaining section 71 of the Designs Act in its present form. 
R 18 ACIP recommends amending the legislation as soon as practicable to address specific anomalies identified by stakeholders and listed by ACIP below. ACIP considers that these amendments would improve the operation and consistency of the Act and in some cases, consistency with other IP systems. The Designs Act and/or the Designs Regulations 2004 should be amended to ensure:
a. That rules regarding the identity of Convention applicants are consistent with rules relating to entitlement to designs; 
b. That international Convention applicants are not disadvantaged in cases where formal requirements differ between jurisdictions, by expanding the rules relating to priority claiming; 
c. Courts have the power, similar to that available under the Patents Act 1990 to refuse to revoke a design registration on the basis of lack of entitlement of the named applicant in appropriate circumstances; 
d. Design registrations are revocable on the basis of a lack of entitlement at the time of the revocation proceeding (rather than at the time of registration); 
e. The prior art base against which newness and distinctiveness is considered is expanded to include designs for products other than the product the subject of the registered design; 
f. The ground of revocation on the basis of fraud, false suggestion or misrepresentation extends to fraud, for example, during certification (not just registration); 
g. The opportunity to amend is broadened to allow for amendment other than to overcome a ground of revocation; 
h. Exclusive licensees have the right to bring proceedings for infringement; and 
i. Grace periods for renewal deadlines align with other IP Rights.
R 19 ACIP recommends no change to the trade mark/design overlap. 
R 20 ACIP recommends no change to the Repair Defence. 
R 21 ACIP recommends no change to the designs system at this time to respond to 3D printing and scanning technologies. 
R 22 ACIP recommends that Australia should not introduce protection for unregistered designs. 
R 23 ACIP recommends that the role of the designs system be specifically included in any broader review of Australia’s IP framework, such as a broader review that may be proposed in the Final Report of the Competition Policy Review.