Gibberish

The headnote for Palmer v No Respondent [2023] VSCA 322 persuasively characterises the appeal as 'Pseudo-legal gibberish' and 'Mumbo jumbo'.

In earlier proceeding Palmer had responded to attempts by the Deputy Commissioner of Taxation to recover $1.5 million in tax by sending a document entitled ‘Notice to Show Cause’ requiring the judge 

‘to show Just Cause with respect to’ (amongst other things): The County Court of Victoria being a court that complies with Chapter III of the Commonwealth Constitution, under the Crown of the United Kingdom. The presiding Judge proving that he/she has sworn an oath to the Queen of the United Kingdom. The County Court Civil Procedure Rules 2008 complying with a Parliamentary Order as per section 87 of the Judiciary Act 1903 (Cth).

and then seeking summary dismissal or striking out of the Deputy Commissioner’s claim, ‘with prejudice, on the grounds that it is frivolous, vexatious and an abuse of process, and ... is, in its entirety a legal nonsense’, while claiming ‘costs and damages’. 

Beach JA states of the preceding trial

The flavour of this hearing can be gleaned from the applicant’s announcement of his appearance to the judge. In response to the judge’s seemingly innocuous statement, ‘And Mr Palmer, you represent yourself’, the applicant said: I’m Michael, and we are that person’s personal representative in private capacity in being. We appear under duress as the beneficiary of that constructive estate to ensure that that estate is not unlawfully damaged. We act as the mind, body, spirit in being and we are here as an inquirer, first and foremost, in respect of jurisdiction. 

Palmer was unhappy with the decision, seeking judicial review alongside a declaration that the judge’s orders were 'null and void or, alternatively, quashed' with a 'judicial writ of mandamus’  being used to provide that the 'alleged' debt be 'extinguished/declared null and void and un-enforceable. Palmer identified a mere 36 alleged errors of law by the Judge, including

•  ‘failing to establish jurisdiction over a subject of the Crown, separate from the Holy See of Rome, as dictated by the 1688 Bill of Rights’; 
• ‘failing to establish jurisdiction over a living, breathing man, a de jure solemn et naturale’; 
• ‘failing to establish the source and fountain of justice that flowed through the court that was operating within Australia’s Constitutional Monarchy’; 
• ‘stating that the Court was operating under the title of the “King of Australia”, but then ignore[ing] the fact that there was no instrument at law that established that title to be used in relation to Australia and its territories, which extends to the State of Victoria’; 
• ‘ignoring the fact that the subject of the Crown clearly stated that he did not agree, or consent, to act as surety for the Defendant entity’; and 
• ‘ignoring evidence — by way of the County Court of Victoria Annual Report — that the County Court was a trading corporation operating under a trading name with an ABN, and could not make lawful orders’.

The head note reads

Income tax – Judgment against applicant for in excess of $2m for unpaid income tax – Attempt by applicant to file judicial review proceeding – Proposed judicial review proceeding constituting an abuse of process – Application for leave to appeal from primary judge’s refusal to direct Prothonotary to accept and seal proposed originating motion – Application for leave to appeal having no prospects of success – Pseudo-legal gibberish – Mumbo jumbo – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Games, copyright and metaverses

The 2023 CREATE working paper 'Gaming without Frontiers: Copyright and Competition in the Changing Video Game Sector' by Aysel Gizem Yaşar, Amy Thomas, Kenny Barr and Magali Eben states

This working paper examines aspects of the contemporary video games sector at a time when incumbent and new-entrant market participants vie for primacy in the games industry. In this setting, ownership configurations and business models of key actors are in a state of flux. As consumers increasingly access culture ‘on-demand’ by way of cloud technologies, myriad opportunities and challenges emerge, not only for the video games sector, but for the wider cultural industries and society as a whole. It is in this very dynamic industrial landscape that the working paper is located. 

The paper marks a starting point for collaborative research on the games industry, drawing on the range of expertise within CREATe to provide a more holistic view of innovation, creativity, and power dynamics in games. The authors draw on different research specialisms and interests including: digitalisation of the cultural industries; copyright and notions of user creativity; digital services and product market definition; and competition law, innovation and the role of technology. The paper draws on each of these specialisms in turn. It starts by providing the industrial context of the discussion and analysis. This feeds into three analytical sections examining: user creativity and intellectual property in video games; the implications of industry concentration for different articulations of creativity; and finally, an exploration of the potential ramifications of developments in the games sector for innovation at the dawn of the metaverse era. 

In doing so, this work sets the scene for future research, which brings together competition law, IP law, and cultural policy perspectives. With questions formulated throughout the paper, the authors embark on a project to review the changing landscape of gaming and its implications for creativity, innovation, access and integration. ... Transformations do not occur merely within the more traditional confines of ‘games’. As the gaming industry goes through a cloud transformation, it is also providing the basis for the development of something bigger: the metaverse. While virtual environments known as metaverse are still in their infancy, their connection to the gaming sector is clear. Popular games and gaming platforms like Minecraft, Fortnite and Roblox have been labelled ‘proto metaverses’. The immersive experience of metaverse lends itself well to gaming. At least some of the M&A trend in the gaming sector seems motivated by metaverse development. Established players in the gaming industry, like Microsoft and Epic Games, are taking shots at different aspects of metaverse. As such, metaverse development is an integral part of this project. 

Despite this close connection however, the metaverse goes beyond gaming, and metaverse projects encompass many aspects of human lives, from socialising to work, fitness, and even psychotherapy. Metaverse players are emerging outside of the gaming sector. It also has the potential to foster user creativity far beyond what video games have allowed so far and open up different business models. The authors of this paper are interested in the historical and contemporary connections between gaming and the metaverse. Some of the concentration trends and user creativity in the metaverse run parallel to the research focus in the gaming sector, setting the scene for an investigation into corresponding regulatory regimes. 

This paper is not intended to provide clear answers on what the changes in the games industry mean for IP or competition law. Rather, it aims to bring together a range of perspectives, identifying central research questions which can best be answered through a multi-perspective lens. The authors of this paper draw on different research specialisms and interests including: digitalisation of the cultural industries, copyright and notions of user creativity, digital services and product market definition, and competition law, innovation and the role of technology. The paper draws on each of these specialisms in turn. It starts by providing the industrial context of the discussion and analysis. This feeds into the three analytical sections examining: user creativity and intellectual property in video games; the implications of industry concentration for different articulations of creativity; and finally, an exploration of the implications of developments in the games sector for innovation at the dawn of the vaunted metaverse era. The concluding section synthesises each of these component parts in the closing discussion. It identifies the questions which will underpin the future research of the CREATe games project.

Concision

In The University of Exeter v Allianz Insurance PLC [2023] EWCA Civ 1484 Coulson LJ states 

[1] The issue in this appeal is whether the loss and damage caused in 2021 by the controlled detonation of a hitherto undiscovered World War II bomb was “occasioned by war” and therefore excluded by the applicable insurance policy. “Unguided gut feeling” (as it is called in one of the authorities) may suggest that the damage caused by a controlled detonation 79 years after the bomb was dropped, and 76 years after the war ended, was not “occasioned by war”. But those same authorities make clear that the approach to legal causation is more nuanced than that, and subject to specific rules and principles. At first instance, HHJ Bird (sitting as a High Court judge in the TCC) (“the judge”) applied those principles and concluded that the, or at least a, proximate cause of the damage was the dropping of the bomb during World War II, such that the exclusion applied. The central issue on this appeal is whether he was right to do so. 

[2] I should note that, although the issue in this case is primarily one of law, leading counsel on both sides referred to the authorities in a measured and controlled way, and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them.

Cancel

'The Forgotten Dreams of History-from-Below' by Priya Satia (2023) Journal of Social History comments 

In his 2003 essay, “On Agency,” Walter Johnson faulted the way scholars’ focus on agency presumed a “unidirectional trade between past and present,” treating “history writing as a mode of redress.” It marginalized “human-ness lived outside the conventions” of a “liberal notion of selfhood.” Restoring agency to the enslaved made the scholar feel better about themselves without making the world any better: “therapy rather than politics.” Looking back on this pivotal assessment of social history from the vantage of twenty years, its criticisms seem relevant to the use of agency in its time (and ours) more than to the concept’s original invention in the era of decolonization after World War II. In that time, drawing on anticolonial thought, history-from-below emerged precisely to contest liberal notions of selfhood and reform the existing, whiggish two-way trade between past and present. Revisiting that turn reminds us that questions raised by the category of “agency” were present at its making and that it is unlikely that academic scholarship can fulfill more than a therapeutic function without affiliated struggles to remake the academy and popular politics. Reminding us of history-from-below's foundational commitment to building up “the present-life of the past” and challenging the individuated ideal of selfhood, this essay notes the continued urgency of recovering alternative subjectivities as we face the planetary crisis created by dominance of Enlightenment notions of history and selfhood. Though scholarship in the academy may not be capable of the political impact Johnson imagined, it nevertheless furthers history’s actual end of internal transformation. ... 

In his now classic 2003 essay, “On Agency,” Walter Johnson faulted the way scholars’ focus on agency presumed a “unidirectional trade between past and present,” treating “history writing as a mode of redress.” It also marginalized “human-ness lived outside the conventions” of a “liberal notion of selfhood.” As a scholarly goal for those working on histories of enslaved people, restoring agency to the enslaved ultimately made the scholar feel better about themselves without making the world any better: “therapy rather than politics.” Looking back on this pivotal assessment of social history from the vantage of twenty years, its criticisms seem relevant to the use of agency in its time (and still perhaps ours) more than to the concept’s original invention in the more dimly lit era before 2003. As it turns out, the original turn to agency in the 1950s and 1960s contested liberal notions of selfhood and explicitly sought to forge a two-way trade between past and present. Revisiting the motivations behind that turn reminds us that questions raised by the category of “agency” were present at its making, illuminating what we can expect from academic scholarship on the dispossessed. 

In the 1950s, scholars like E. P. Thompson strove to rescue the dispossessed “from the enormous condescension of posterity” in the very particular context of (seeming) imperial twilight. In questioning the judgment of history, Thompson challenged the longstanding whiggish presumption that failure represented history’s verdict on a struggle. He redeemed “lost causes” to illuminate the historical agency of those that liberal narratives took as history’s objects rather than subjects, and to open up new possibilities for exercising political agency in his own time. He rummaged in the past for democratic forms of revolutionary agency that might empower twentieth-century people caught between the chilling conformism of the Communist Party and the oppressions of the Cold War British state. History writing was a mode of redress for the past and source of resistance in the present: therapy and politics. 

... The 1990s also saw renewed faith in liberalism in both the academy and the world. With Project Minerva, the new millennium’s “war on terror” once again coopted the Western academy into colonial projects. Even as awareness of the academy’s historic complicity in the oppressive projects of the modern era intensified and universities investigated their historic ties to slavery and colonialism, (partly as backlash against such “wokery”) they became more corporatized, slashing budgets for humanistic learning. 

This setting helps explain how by the time of Johnson’s critique in 2003, scholarship that diligently invoked “agency” wound up reinforcing “the universality of a liberal notion of selfhood” even in conversations about slavery. The “we” in Johnson’s worry that “we are practicing therapy rather than politics” gestured to a majority-white academic establishment; but history-from-below had been part of a challenge to this academy devoted to cultivating liberal selfhood and liberal empire. Those writing history-from-below from within the halls of a neoliberal academy are trying to make something of the bathwater without the baby. Hence the inability to go beyond reestablishing, ad nauseum, that members of every demographic are as “human” as the male white subject that was liberalism’s initial default human being. In the establishment academy, history-from-below was shorn of its original purpose of reimagining how humans act through culture and illuminating alternative selfhoods for our present. Historians obscured how enslaved people “theorized their own actions and the practical process through which those actions provided the predicate for new ways of thinking about slavery and resistance.”

Nannas and Implied Freedom of Political Communication

In Kvelde v State of New South Wales [2023] NSWSC 1560 Walton J has found that the Roads and Crimes Legislation Amendment Act 2022 (NSW) impermissibly burdens the implied freedom of political communication, in this instance regarding protest activity by the 'Knitting Nannas'. 

The Court states 

(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

It notes

 On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows: 

214A Damage or disruption to major facility 

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected. 

Maximum penalty—200 penalty units or imprisonment for 2 years, or both. 

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. 

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought. 

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions. 

The principal issues for the Court were: 

1. Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and 

2. Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”). 

The Court held: As to s 214A of the Crimes Act 

1. Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication. 

2. Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6). 

3. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice. 

4. The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms. 

5. Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified. 

6. The purpose of the impugned provisions is legitimate in its purpose. 

7. The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law. 

8. The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect. 

9. The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance. 

As to cl 48A(1) of the Roads Regulation 

1. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness. 

2. The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

UNDRIP

Senator Thorpe's underwhelming United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth) - lacking support from the Government or leading Opposition parties - has died in the Senate. 

The Explanatory Memo for the Bill states

 1. This Bill provides for measures to enact the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australian law. 

2. The Bill is in recognition of Australia's endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP. 

3. The intention of the Bill is to address Australia's lack of UNDRIP's implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP. 

4. The purpose of the Bill is to recognise and ensure that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. 

5. The Bill is further in recognition of the rights of Indigenous peoples enhancing harmonious and cooperative relations between the State and Indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith. 

6. All doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust. 

7. Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. 

8. The Bill reaffirms that Indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind. 

9. The Bill recognises the urgent need to respect and promote the inherent rights of Indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources. 

10. The Bill recognises the urgent need to respect and promote the rights of Indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States. 

11. The Bill is based in the conviction that control by Indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs. 

12. It recognises that respect for Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment. 

13. The Bill is in recognition of the contribution of the demilitarisation of the lands and territories of Indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world. 

14. The Bill recognises in particular the right of Indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child. 

15. The Bill is based on the idea that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and States. 

16. It affirms the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. 

Further 

25. This clause summarises the Act as establishing a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples by the Commonwealth Government. 

26. The clause outlines that the actions through which the Commonwealth Government is to achieve the implementation of the United Nations Declaration on the Rights of Indigenous Peoples are through ensuring that Commonwealth laws are consistent with the Declaration and through preparing and implementing an action plan to achieve the objectives of the Declaration in Commonwealth law, policies and practice. 

27. The clause further summarises the provision for the Prime Minister to present a report, each financial year, on the progress of actioning the implementation of the action plan and ensuring Commonwealth law consistency with the Declaration.

And 

The Bill provides a framework for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the Commonwealth Government. The Bill is in recognition of Australia's endorsement of the UNDRIP in 2009 and its verbal commitment to take actions to implement the UNDRIP. The Bill intends to address Australia's lack of UNDRIP's implementation into law, policy and practice, the lack of a National Action Plan to implement the UNDRIP, negotiated with indigenous peoples, and the lack of auditing of existing laws, policies and practice for compliance with the UNDRIP. The Bill requires the Commonwealth Government to: (a) take measures to ensure consistency between Commonwealth laws and the Declaration; and (b) prepare and implement an action plan to achieve the objectives of the Declaration (c) each financial year, prepare an annual review on the progress of (a) and (b). Human rights implications The Bill in its entirety positively engages human rights as it tries to address, to the extent possible provided by its content, that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, through recognising and ensuring that Indigenous people are entitled without discrimination to all human rights recognised in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. The Bill provides for the implementation of the UNDRIP to ensure Australia, in its law, policy and practice, complies with the UNDRIP, which the Commonwealth Government endorsed in 2009 but has not taken explicit action to advance. The Bill thereby positively advances the human rights of Indigenous peoples as outlined in the UNDRIP.

Platform Regulation

The Senate Standing Committee on Economics in its Influence of international digital platforms report comments 

Regulatory fragmentation 

Submitters raised concerns that the current digital platforms sphere involves duplicated and overlapping regulations, and there is a need for a coordinated approach to digital regulation. 

BSA – The Software Alliance (BSA) suggested ‘the Committee consider the broader issue of how to reduce regulatory overlap, including by promoting improved coordination between regulators, policymakers, and the private sector’. 

The Tech Council of Australia stated regulation: … should aim to deliver a more coordinated and cohesive approach to digital regulation that enables long-term growth of the Australian technology sector in the national interest, including by avoiding overly broad or piecemeal approaches to regulation, which our research has found to be a key barrier to innovation and capturing the benefits of new technologies. 

Significant regulatory gaps were also highlighted in evidence to the committee. For example, the committee questioned Digital Platforms Regulators Forum (DP-REG) members about which agency held responsibility for protecting Australians from spending on unused subscription fees. The DP-REG members were unable to point to an agency that would hold that remit. 

Senator Shoebridge asked: Isn't this one of the problems in this whole space? There's no lead agency. There's no-one who's ultimately responsible. It must frustrate you no end, which is one of the reasons you've brought together this informal forum. There's just no lead agency, is there?

Ms Elizabeth Hampton, Deputy Commissioner, Office of the Australian Information Commissioner (OAIC), responded: I don't agree that it's the frustration around a lack of a lead agency that caused us to coalesce and come together. Instead, we've reflected on the fact that we each have an important different lens to bring to a set of issues, and it's the coordination of those different lenses that results in a really good outcome for Australians. 

In response to committee concerns that there is no agency with ultimate responsibility when regulatory gaps are identified, Ms Creina Chapman, Deputy Chair, the Australian Communications Media Authority, explained: The gap is not in the regulators; the gap is not in the fact that there is not a regulator that has responsibility for it. If there is a gap, it is a legal gap. 

Proposed solutions 

Upskill and empower existing regulators 

Submissions recommended upskilling existing regulators, such as the Australian Competition and Consumer Commission (ACCC) or OAIC, so they have the adequate skills and resources to regulate the behaviour of digital platforms. 

The Consumer Policy Research Centre stated regulators need specific expertise to regulate digital platforms: Monitoring and surveillance by regulators in this complex environment needs a diverse workforce that not only understands the implications of the law but also the technical architecture on which these business models are built upon. Experts such as data scientists, artificial intelligence engineers, information security analysts and other technical professionals need to be in the mix to support upstream regulation and mitigate the risk to consumers, potentially before widespread harm has occurred.[ 

Similarly, the Human Rights Law Centre (HRLC) supported a comprehensive regulatory framework that includes ‘broad information-gathering and enforcement powers for an independent, well-resourced and integrated regulator’. The HRLC told the committee this regulator should be empowered and have robust information-gathering powers. 

Better coordination between regulators and policy makers 

Evidence to the committee also recommended the creation of a new model of coordination between existing regulators and policy makers. 

.au Domain Administration Ltd (auDA) told the committee that closer engagement with stakeholders is needed at all stages of policy development. It advocated for coordinated efforts between regulators, policy makers, the private sector, technical community, academia, and civil society. It recommended: … all relevant regulators and government departments actively participate in a multi-stakeholder policy development approach. This would help to avoid siloes and overlapping consultation processes facilitated by different government entities and drive greater certainty amongst industry and consumers. 

Similarly, BSA stated DP-REG is comprised of only regulators, with policy makers and industry representatives absent from the conversation. It recommended considering the Australian National University’s Tech Policy Design Centre’s (ANU Tech) proposed model to increase involvement from industry representatives and independent technical expertise. BSA argued: The increased involvement of industry representatives will provide the government with access to independent technical expertise and a regular platform for consultations. More importantly, it will discourage taking a reactionary approach when addressing emerging concerns and ultimately will pave the way for a more certain regulatory environment. 

ANU Tech’s proposed ‘Tech policy coordination model’ includes the following layers of coordination: The Tech Policy Ministerial Coordination Meeting is the peak Ministerial coordination body in the Australian tech-ecosystem. Its objective is to facilitate cross-portfolio Ministerial coordination before tech policy proposals are taken to Cabinet. The Tech Policy Council is the peak senior officials’ coordination body in the Australian tech-ecosystem. Its objective is to improve coordination among and between policymakers and regulators. The Tech Regulators Forum is the peak regulator coordination body in the Australian tech-ecosystem. Its objective is to improve coordination among tech regulators. 

6auDA supported ANU Tech’s model as it ‘does not change any existing mandates of Ministers, departments or agencies, but helps cultivating coordination at all stages of tech policy development’. 

The Australian Information Industry Association noted ANU Tech’s proposal and similarly recommended establishing a Council of Tech Regulators which: … would work to a similar model as the Council of Financial Service Regulators and be comprised of authorities such as the eSafety Commissioner, the Australian Information Commissioner, the Digital Transformation Agency, the Department of Home Affairs, Treasury, the Attorney General’s Department and the Australian Cyber Security Centre. The Council would ensure that, as far as possible, regulation is streamlined and rationalised to mitigate overregulation, red tape, duplicative reporting requirements and parallel consultation timeframes. Breaking down silos and ensuring that in respect of technology – the all-pervasive, innovative and value-creating engine at the heart of the economy – the left hand of government knows what the right is doing as far as regulation and reporting is concerned, and regulatory impost is contained as far as possible. 

Parliamentary committee 

The HRLC recommended a dedicated Parliamentary committee on digital matters be established to acknowledge the ongoing attention required on emerging tech issues and policy coordination across Government. 

A joint submission from multiple research organisations similarly proposed Parliament establish a Joint Standing Committee on Digital Affairs. They stated: A dedicated standing Committee would allow for a better allocation of time, resources and expertise and help develop a more sophisticated understanding of digital and technology policy. Existing portfolio committees are overworked and their broad remits mean that they neither have the capacity nor time to proactively interrogate emerging tech issues. 

A digital platforms specific body 

Some submissions raised support for a new digital platforms specific body. 

Ben Blackburn Racing recommended consideration of ‘the introduction of a new Australian Government agency which could bring more independence to oversight of the influence and decision-making structures of Big Tech companies and their impacts in Australia’. 

Mr Rupert Taylor-Price, Chief Executive Officer, Vault Cloud, discussed how there is no clear regulator in the digital platforms space, and there needs to be one: It's a bit like when you get on a plane. To some degree, you don't have to worry too much about who's providing you that service. You know that it's a well-regulated industry. You know that there's a degree of safety by getting on that plane. That's what CASA and other regulators in that space affect in the outcome that they get for their citizens. In the technology space, say that you didn't like the way an algorithm had worked for you in some way on one of these platforms. How do you deal with that? If you go to a bank, you go to APRA. If you get on a plane, you go to CASA. Who do you go to as a citizen when you have an issue with a technology platform? 

The Law Institute of Victoria recommended: … the introduction of a new government regulatory authority, or the establishment of a collaborative team across existing regulatory bodies, tasked with overseeing the regulation of Big Tech companies specifically … [it] would need to be sufficiently resourced in order to provide any meaningful opportunity for appropriate regulation. 

Ms Kate Pounder, Chief Executive Officer, Tech Council of Australia, stated the US National Institute of Standards and Technology (NIST) could be examined as a model that brings together competition, consumer and data issues. NIST is an agency of the US Department of Commerce, that produces standards and guidelines with expertise. Ms Pounder stated: … often in these new areas, particularly when technology is moving fast, there's not a high degree of expertise. So I think centralising that in one body, which can provide expert guidance to governments and work fairly rapidly to get standards and guidance material out, is vital. It can take a science based and evidence based model. Often the work of NIST ends up being utilised in other markets. I think there's also an opportunity for Australia to simply leverage that a bit better and aim for coherence with some of the guidelines that come out there. It often tends to happen in the private sector, because an Australian company that's successful in the tech sector will be selling globally, so they might look to those guidelines and try to adhere to them. 

Digital Rights Watch recommended a Minister for Digital Capabilities be appointed. 

Committee view 

This section provides the committee’s view on key themes and concerns raised throughout this inquiry and the committee’s recommendations. 

Regulation 

Throughout this report and particularly earlier in this chapter, evidence was presented that the current regulatory system is not working effectively. Regulation of digital platforms is split across various agencies, in some cases with competing priorities. 

The committee found that the current legislative and regulatory framework is not sufficient to ensure positive outcomes for consumers and competition. In short, it is fragmented. 

The committee acknowledges the importance of well-resourced and appropriately skilled regulators to ensure adequate enforcement efforts achieve the desired outcomes. The committee is concerned that upskilling existing regulators alone will not resolve regulatory gaps or provide the expertise needed to address emerging competition and consumer risks. 

Stakeholders highlighted that despite the market power of Big Tech and potential for harm, digital platforms are not regulated like other significant industries, such as banks, telecommunications providers and airlines. The committee considers that a new regulatory regime could address fragmentation and bolster regulatory efficacy. 

Evidence to the committee also highlighted the need for better coordination between regulatory bodies and policymakers. Improved coordination would streamline legislation and regulatory efforts. Further, a coordinating body would give consumers and digital platforms certainty about where to turn to when issues arise. 

Accordingly, the committee recommends a new coordination body be established, which does not alter or acquire the day-to-day functions of the four main DP-REG agencies but coordinates collaboration efforts, common responsibilities and tasks.

The Committee's recommendations are 

R1 The committee recommends that the Australian Government establish a digital platforms coordination body. 

Competition 

Chapters 3 and 4 considered issues that have arisen due to the concentrated market power of Big Tech. The committee heard evidence that the dominant market power of Big Tech has allowed these firms to engage in anticompetitive behaviours and exploit power imbalances to the detriment of small businesses and consumers. 

A range of submitters told the committee that the market power of Big Tech allows these firms to engage in anticompetitive tying and self-preferencing. These practices make it difficult for other companies, particularly small businesses, to compete, resulting in reduced competition, less choice for consumers and increased prices. 

The committee has heard that Big Tech platforms may impede consumers from switching products or services through tying practices that lock consumers in to one provider.

Submissions raised concerns that app store providers tie the use of app store services to the use of their in-app payment (IAP) services. App stores take up to a 30 per cent commission on every IAP and restrict app-developers from providing their own IAP mechanisms. 

The committee is concerned that the tying of IAPs creates a barrier to entry for competitors and limits the choices available to consumers. Further, the committee believes there is a lack of transparency in how commission fees are determined, and how app stores use the IAP data they collect. 

Furthermore, the committee has heard that regulation of near-field communication mobile device components and mobile wallets is needed to ensure consumers have similar rights against large digital platforms compared to regulated financial institutions that provide payment services. 

Other jurisdictions such as the European Union (EU) and South Korea have introduced measures that require major app store operators such as Apple and Google to unbundle the use of their proprietary in-app payment systems from the use of app distribution services. 

Accordingly, the committee supports introduction of legislation that will address anti-competitive tying by Big Tech platforms to ensure a level and competitive playing field. 

R2  The committee recommends that the Australian Government introduce legislation to prevent anti-competitive practices through the bundling of payment services and products by large digital platforms.  

The committee is concerned that self-preferencing conduct may be anti‑competitive and create barriers to entry for small businesses. 

Multiple submissions called for regulation that tackles anti-competitive self‑preferencing by gatekeeper companies and referred to international approaches that could be adopted. For instance, the United Kingdom (UK) has proposed a pro-competition regime for digital markets. This regime will include measures to address anti-competitive self-preferencing by requiring digital platforms to not influence competitive processes or outcomes in a way that unduly self-preferences a platform’s own services over that of its rivals. 

The committee is of the view that there needs to be greater transparency on the part of large digital platforms regarding the practice of self-preferencing their own products. 

The committee believes this warrants mandatory public disclosure by large international platforms when they engage in self-preferencing behaviour for their own products on app-stores and other digital markets. Furthermore, large digital platforms should disclose aggregate information on the data collected from customers and business users for reasons other than the app review process. 

R3  The committee recommends that the Australian Government require mandatory disclosure by large digital platforms of self-preferencing conduct. 

Dispute resolution 

In Chapter 4, the committee considered consumer redress options within the digital economy. While Big Tech firms invest in a range of mechanisms to prevent and minimise problems for consumers, a significant number of problems and disputes are unable to be resolved within existing systems. 

Internal dispute resolution mechanisms provided by digital platforms are an important first point of redress. However, consumers encounter many difficulties navigating these mechanisms and the power imbalance between Big Tech providers and consumers is evident. 

The committee supports the introduction of mandatory digital platform internal dispute resolution standards. 

R4 The committee recommends the Australian Government implement mandatory dispute resolution requirements for large digital platforms via regulation. 

Judicial escalation of disputes with digital platforms is generally not financially accessible for most consumers, nor expeditious enough to address problems before serious harm occurs. Small businesses and consumers are therefore reliant on a regulator choosing to prosecute their case; however, regulators such as the ACCC focus their resources on systemic issues. 

The committee is concerned that consumers are left with no realistic escalation options once business-to-business dispute resolution, perhaps with the assistance of an independent advocate or mediator, has been exhausted. 

The committee considers the proposal for a judicial escalation option akin to a state-level small claims tribunal has merit. 

R5  The committee recommends the Australian Government establish a tribunal for small disputes with digital platforms. 

Transparency 

Chapters 5 and 6 highlighted concerns about transparency of data use by Big Tech, including by algorithms and in automatic decision-making. 

Data collection by digital platforms occurs on a grand scale, often without explicit consent from users. Data brokers aggregate data to on-sell for commercial use, such as targeted advertising. Submissions raised concerns that consumer data can be used for profiling and discrimination, without consumers being aware that their data was collected. 

The committee suggests measures be implemented to ensure customers are aware of what personal data is being collected by digital platforms and what it is used for. A greater effort should be made by digital platforms and the Australian Government to ensure personal data of individuals is adequately protected. 

The committee proposes implementation of a public data reporting regime requiring Big Tech firms to: provide details of the targeting criteria for advertising and data determining which users are exposed to particular ads; and provide key metrics on demographic data collected for the purposes of targeting advertising, particularly children’s data. 

The committee notes that the EU Digital Services Act requires platforms that display advertising material on their online interfaces to ensure users can identify, for each advertisement displayed, that the information is an advertisement, who the advertisement is on behalf of and the parameters selecting recipients of the advertisement. Some digital platforms have responded to this by creating an online repository of advertisers. This model could be considered by the government. 

Mandatory reporting of data collection by digital platforms should be modelled on the obligations imposed on superannuation funds to disclose certain information in notices for annual members’ meetings. 

Chapter 6 discussed concerns that algorithms used by digital platforms may not operate in a way that adequately supports community values, such as fairness, accuracy, privacy and user safety. 

Evidence supported international approaches to strengthen the transparency of algorithmic use by digital platforms. In particular, the UK and the EU have implemented transparency standards for the use of algorithmic tools. 

Large digital platforms should be subject to data access obligations and transparency measures which extend to algorithms used for content recommendation and for targeted marketing. 

The committee supports the development of a risk-based regulatory framework by the proposed digital platforms coordination body. The framework should place the onus on digital platforms to identify risks created by their use of algorithms and outline how they will address those risks. 

R6 The committee recommends the Australian Government implement a requirement for designated digital platforms to report advertising material via a public register, based on turnover, and that it implement mandatory reporting on algorithm transparency, data collection and profiling by very large platforms, particularly identifying what personal data is collected and how it is used. 

The committee notes the Privacy Act Review proposal to create a right of data erasure. 

Submissions highlighted that individuals have limited rights when it comes to how their data is used. A right to erase personal data would give individuals more control over their own information when engaging with digital platforms. 

The committee notes any right of erasure must extend beyond an individual’s ability to delete data, such as photos or posts, which they have voluntarily shared online to also encompass biographical, geolocation, browsing habits, ‘likes’ and other data surreptitiously collected and collated by digital platforms. 

R7  The committee recommends that the Australian Government regulate an individual’s right to delete personal data. 

Children’s data 

As highlighted in Chapter 8, children’s online data collection raises particular security and personal risks. Evidence suggested that the changes in digital platforms’ practices required to protect children online will only occur when mandatory codes with penalties for non-compliance are introduced and enforced. 

The committee considers that additional regulation of children’s data protection and privacy rights is necessary. The committee recommends implementing a mandatory code for the protection of children online, addressing regulatory fragmentation and aligning the rights of Australian children with international jurisdictions. 

R8  The committee recommends the Australian Government legislate for mandatory industry codes on the collection, use and retention of children’s data.