Costs

Another judgment regarding pseudolegal claims, this time with the Qld District Court ordering the self-representred litigant to pay costs. In Schafer v Bacon [2022] QDC 60 the Court states 

 [1] Over a year ago Ms Schafer was convicted of an offence contrary to the Planning Act 2016 (Qld) s 168(5) of contravening an enforcement notice on 23 November 2019. Ms Schafer was not inclined to enter a plea at the start of the summary hearing (or, as she put it, to consent to the proceedings). Ms Schafer challenged the jurisdiction of the local authority to prosecute the complaint and summons against her, being a subject of the Queen in the UK or as a “natural-born subject”. After dealing with the jurisdictional point, the learned Magistrate correctly entered a plea of not guilty on the appellant’s behalf and appropriately advised her as to the mode of summary hearing, as she was representing herself. The evidence led in support of conviction was largely unchallenged, save repeated objections. Procedural matters were proved by evidentiary certificates. 

[2] The grounds of appeal to this court appear to also raise the jurisdictional issue and are repeated as follows:

1. Breach of Australian Constitution clause 5, sections 34, 44, 74, 76(IV), 106-109, 117, 123; and 

2. Breach of Constitution Act 1867 (Qld) (‘Queensland Constitution’) sections 1, 2, 11A, 11B, 14, 53. 

[3] In a nutshell, the complaint centred on Ms Schafer having conducted assessable development works of moving two shipping containers and connecting utilities to them, on a block of land at Ogmore (north of Rockhampton and within the boundaries of the Livingstone Shire Council), without Council approval. An enforcement notice was issued: the allegation to be proved was that she failed to comply with it. 

[4] A Notice of Appeal to a District Court Judge and a Notice of Application for Extension of Time for Filing the Notice of Appeal was filed on 23 November 2021, which was over 10 months after the hearing date. The reason for the inordinate delay is perhaps explained by Ms Schafer having brought judicial review proceedings in the Supreme Court (which was dismissed) and a dozen applications to the High Court of Australia.   

[5] Exhibit 2 to an affidavit that was sworn on 14 February 2022 (which appears to bear the appellant’s signature), is a document entitled “my cases” from the High Court of Australia. It shows the filing of Form 17 Application for Removal on nine occasions between 15 June 2021 and 10 December 2021; a Form 23 Application for Special Leave to Appeal on 15 November 2021; and a Form 31 Application for Leave to Issue or File on 21 December 2021. All were rejected. The twelfth application, which was another Form 31 Application, had been filed on 6 January 2022. Ms Schafer had not received confirmation whether it had also been rejected by the date of the hearing of this appeal on 18 February 2022. Accordingly, Ms Schafer sought and was granted an adjournment. Ms Schafer undertook to obtain further legal advice about her identified limited prospects of success, on that occasion.

[6] Following the adjournment, Ms Schafer filed further documents entitled “Statement of Claim” and “Affidavit”, which are of a similar vein and largely repetitive of the material filed originally, entitled “Affidavit” and “Outline”.

The Court states 

The filed material is largely indecipherable. The theme centres upon constitutional issues which are said to emerge following the abolition of the Upper House of the Queensland Parliament 100 years ago, and some perceived inconsistency of local government laws with the Australian Constitution, or the Queensland Constitution, or both. The filed documents otherwise contain case summaries, article extracts, a letter from Mr Culleton (Great Australian Party) to the Governor-General calling on him to stand down, and a claim of $40,000 for damages to health, $10,000 for defamation of character, plus costs.

[7]  On the resumed hearing, the respondent confirmed that on 17 February 2022, the Honourable Justice Keane AC found it would be “futile” to grant leave to issue or file the Application for Removal to the High Court. In oral submissions, the appellant appeared to confirm her argument, without clarity, or legislative or judicial support, that the Local Government Act 2009 (Qld) was inconsistent with the Australian Constitution and/or the Queensland Constitution. Ms Schafer also stated the grounds of appeal concerned the “lawfulness” of the Queensland Governor and the Governor-General of the Commonwealth of Australia.  

[8] Section 223 of the Justices Act 1886 (Qld) confirms an appeal under s 222 is by way of a rehearing of the original evidence that was given in the proceeding to which the order is appealed against. 

[9] Courts have regularly determined the basic following principles apply: it is for the appellant to demonstrate some legal, factual or discretionary error; the court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its or draw its own inferences and conclusions. 

[10] In Mbuzi v Torcetti Fraser JA said the following:

The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy at [25]; Rowe v Kemper at [5]. 

[11] Pursuant to s 225 of the Justices Act 1886 (Qld), among other things, on hearing the appeal I may either confirm, set aside, vary the appealed order or make any other order I consider just. 

[12] As to the question whether time should be extended for the filing of the appeal, in R v Tait the court said the following:

[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay. 

[13] Whilst the appellant’s conduct in bringing persistent applications in the incorrect court does not appear to be a good reason to account for the considerable delay, especially in circumstances where the respondent drew the appellant’s attention to the appropriate mode of appeal within approximately one month of the summary hearing, I consider it appropriate to make a provisional assessment about whether the appeal should succeed. Just because the appellant persisted with bringing futile applications in the wrong jurisdiction would not normally constitute good reason for delay. 

[14] On conducting a real review of the summary hearing, I discern no error. The evidence clearly supported the charge. The appellant’s evidence effectively accepted the allegation. The appellant gave evidence she owned the land, continued to live in the shipping containers and had never applied for the necessary permits to do so. The jurisdictional point was considered by the Magistrate and rejected as being without foundation. With respect, I agree with that view and otherwise with his Honour’s careful analysis of the evidence and the making of findings of fact which led to the guilty verdict. 

[15] Ms Schafer has failed to demonstrate there is any relevance between the provisions of the Australian Constitution and the Queensland Constitution and the case under review. The appellant seems to have simply randomly picked some provisions of the Australian Constitution and the Queensland Constitution which have absolutely nothing to do with this case. Above a mere assertion that the appeal should again be removed from the District Court of Queensland and uplifted to the High Court of Australia, there is nothing to confirm the case involves a matter which arises under the purview of the Australian Constitution, as it must do so to enliven the operation of those provisions. 

[16] No doubt, that informs the many rejected applications to the High Court of Australia in this matter already. Also, as counsel for the respondent otherwise correctly points out:

(i) The Magistrate considered and property rejected the jurisdictional issue, which is confirmed by legislation; 

(ii) The Queensland Parliament is constitutional; 

(iii) No conflict arises – Australian Constitution s 109 has no operation; 

(iv) The role of the Governor or Governor-General is irrelevant; and 

(v) The Court is required to take judicial notice of legislation. 

[17] I have concluded the appeal does not enjoy a viable prospect of success. The appeal is incompetent. The appellant has failed to demonstrate the existence of some legal, factual or discretionary error. There is no reason to conclude the Magistrates Court lacked jurisdiction to determine the valid complaint. 

[18] The appellant has not demonstrated there is any good reason to explain the delay. The application for extension of time is refused. The appeal must be dismissed. 

[19] As to costs, in Oshlack v Richmond River Council the High Court said the following about the discretion to award costs: Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for costs of the unsuccessful litigation. 

[20] The appellant’s proceedings were doomed to fail. Nonetheless, the respondent was put to the expense of meeting, or attempting to meet, the appellant’s case. In the exercise of discretion, I consider it appropriate to order the appellant pay the respondent’s costs, on the standard basis.

Cybercrime

'Crime in the Age of the Smart Machine: A Zuboffian Approach to Computers and Crime' by Kevin F. Steinmetz in (2022) 11(1) International Journal for Crime, Justice and Social Democracy 225-238 comments 

This analysis ruminates on the quintessential qualities that underpin the relationship between computers and crimeby drawing from the foundational work of Shoshana Zuboff, a scholar whose work has to date been largely ignored in the study of crime. From this perspective, computers are best described as “informating” machines that require “intellective skills” in both licit and illicit forms of work. The first part of this analysis describes the role of such skills in the commission of computer-related crimes and considers factors that affect the degree to which such skills are necessary for perpetration. The second part considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiries, including learning and subculture, the emotional experience of crime, and perceptions held by offenders and victims.

 Steinmetz argues

Over the past half a century, computers have become a fixture of everyday life. An increasing share of the workforce regularly uses computers for their jobs, many people in developed countries carry smartphones everywhere, and internet use has become a necessity for social and civil life (Pew Research Center 2019). Likewise, crimes mediated through or targetingcomputers have similarly proliferated (Furnell 2017). Scholars have made significant strides during this period to understand the new topography of crime introduced by computers and networking technologies (e.g., Holt and Bossler 2014; Powell, Stratton, and Cameron 2018; Wall 2007; Yar and Steinmetz 2019). Among other changes, research has found that computer technologies have significantly affected the scope and scale of crimes, reshaped the social relationships involved in crime commissions, rearranged the political economy of crimes and control, and introduced new challenges for law enforcement and security regarding criminal detection, prevention, and investigation. 

Criminologists have utilized a diverse assortment of approaches to dissect the complexities that computers have introduced to criminal enterprises. For instance, some criminologists have chosen to adapt standard criminological theories (e.g., routine activities theory, social learning theory, and self-control theory) for computer-related crimes (Yar and Steinmetz 2019). Others have forged novel approaches tailored for digital contexts like extension theory (Brey 2017), actor–network theory (Brown 2006; Latour 2005; van der Wagen 2018; van der Wagen and Pieters 2015), digital drift (Goldsmith and Brewer 2015), and digital criminology (Powell, Stratton, and Cameron 2018). The breadth and depth of theorizing and scholarship to date in the area have been laudable. Amidst such advances, however, it is worth pausing to ruminate on the quintessentialqualities that underpin the relationship between computers and crime—qualities from which all other considerations of such crimes proceed. Such an endeavor can provide a unifying and parsimonious base to ground computer crime scholarship and theorizing. 

This analysis applies Shoshana Zuboff’s (1988) treatise on computer technologies and work, In the Age of the Smart Machine: The Future of Work and Power (Smart Machine), to accomplish this task.While widely influential in the fields of science and technology studies, Smart Machine has been largely ignored by criminologists. In this work, Zuboff (1988) examined multiple worksites during a historical period of significant industrial changes as computers, then new and novel devices, were increasingly integrated into the workplace. She considered the effects of computers on the experience of labor, the skills required to accomplish occupational tasks, the structure of the workforce within an organization, and the role of authority in the workplace. While her study was detailed and thorough, two foundational concepts comprised the fulcrum of her analysis. The first concerned the characteristic that, according to her, distinguishes computers from other machines—they “informate.” In addition to automating tasks, computers process data and provide textual feedback to the user. Thus, computers mediate work, adding a layer of abstraction to the labor process. Second, “intellective skills” or abstract reasoning and processing skills are necessary to conduct informated work. As her analysis revealed, these deceptively simple concepts bear significant implications for the nature of work in a computerized era. 

This analysis argues that the same concepts that Zuboff (1988) applied to the transformation of legitimate work are equally applicable to illegitimate forms of labor. Just as Zuboff (1988: 13) discarded the “natural attitude” that takes for granted the role of computers in work and everyday life, this analysis requires taking on an “attitude of strangeness” to examine the subtle yet profound ways that computers affect the relationship between criminals and their crimes—to reconsider the very notion of what computers do to crime (Neuman 2007: 284). Additionally, the application of Smart Machine to the study of crimes necessitates a willingness to view crime itself as a kind of work. Letkemann (1973: 6) noted decades ago that the “various dimensions of work appear to be as applicable ... to the illegitimate as the legitimate worker.” In other words, crime is a form of labor, criminals are laborers, and both can be understood in terms like those applied to legitimate enterprises (Fagan and Freeman 1999; Letkemann 1973; Steinmetz 2016; Sutherland 1937). Just as information technologies fundamentally reconfigured legitimate work, similar changes are evident as crime is computerized (Wall 2007: 42-44). 

The current analysis builds from Zuboff’s (1988) conceptual work to reframe the issues of computer crime and criminality in two parts. Part 1 elaborates on the concepts of informating and intellective skills. It also describes their immediate application for understanding the relationship between computers and crime. Regarding informating, this analysis contends that criminologists should consider examining computer crimes not as a distinct type of crime but simply variants of preexisting forms of crime shaped by thedegreeto which they are informated or reliant on computers. For intellective skills, this essay traces the transition of these skills from “action-centered” skills and the criminological implications of such changes. Further, it argues that though intellective skills are important for computerized work, not all tasks are equally dependent on computers, nor are all criminals equally willing to utilize such technologies. As such, the factors that affect the extent to which intellective skills are required in crime commissions are considered, including centrality, availability, and engagement. 

Part 2 of this analysis considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiry. It begins by considering the role of information technology and intellective skills for knowledge transmission, addressing criminological concerns like social learning and subcultures. Further, Zuboff’s (1988) insights are applied to the emotional experience of crime, a domain of longstanding fascination for criminologists. Finally, the implications of the distance between what Zuboff (1988: 84) described as a “symbol and reality” for perceptions held by both criminals and their victims are explored. These dynamics are considered in turn.

Cooption

'Tech money in civil society: whose interests do digital rights organisations represent?' by Jake Goldenfein and Monique Mann in (2022) Cultural Studies 

explores philanthropic interactions between ‘Big Tech’ and digital rights civil society organizations (DRCSOs) to enhance understanding of the alignment and misalignment of interests between these groups. ‘Big Tech’ wields political influence by distributing cash to research and policy organizations. Academic research supporting ‘Big Tech’ business practices is marshalled to support their political lobbying efforts, while civil society policy work shapes the narrative what dimensions of these businesses should be regulated (or not). While academic work is typically presented as a cool analysis of the relevant issues, DRCSOs purport to represent the interests of individuals and groups negatively affected by those business practices. Through empirical tracking of direct financial flows, as well as an analysis of cash distributions via class action litigation settlements, we show that certain DRCSOs have long-term financial relationships with ‘Big Tech’ that trouble our understanding of the alignments or misalignments of their interests. Through that analysis, we question where and how civil society fits into automated and algorithmic cultural production and perpetuation, and the way that Big Tech uses and guards the economic capital generated through its dominance over ‘automated culture’. 

 The authors state 

 There is a long history of ethically questionable philanthropic practices in socially harmful industries. ‘Big Tobacco’, gambling, alcohol, pharmaceuticals, and mining have all been supported by philanthropically backed research and policy work. Industry is able to influence scientific findings and policy agendas in various ways, for instance through research funding and directing research programmes (Yach and Bialous 2001, Adams 2007, Capps and van der Eijk 2014), creating of conflicts of interests (e.g. between academics and industry, in favour of industry agendas) (Brandt 2012, Hendlin et al. 2019), undermining policy-relevant research (Landman and Glantz 2009), or interfering with researcher independence (Van der Eijk et al. 2019). Philanthropic interventions have the potential to deflect research and policy towards corporate objectives, launder corporate and executive reputations, and satisfy perceptions of corporate social responsibility (on corporate reputation and philanthropy, see Brammer and Millington 2005). 

As relationships between industry and academia intensify (Crespo and Dridi 2007), related concerns associated with industry funding of academic research continue to emerge in the field of technology policy (Phan et al. 2021). Moves towards university commercialization come with complex ethical challenges (Mintz et al. 2010), especially at times where research budgets are under threat, and promoting industry collaboration is seen as a solution to fiscal crises. These issues, by no means new, are however, taking on new inflections in the context of research and policy work being funded by ‘Big Tech’ firms. 

The firms that constitute ‘Big Tech' have become so profitable, in part, through business models that automate cultural production by ‘enfolding human thought, conduct, organisation and expression into the logic of big data and large-scale computation’ (Striphas 2015). We focus our analysis of the relationship between technology firms and policy work in the context of this dimension of Big Tech platforms’ participation in automated culture – the use of automated and opaque systems that manage and monetize the concurrent flows of personal data, cultural output, and human attention. Through entirely opaque curatorial, ranking, and gatekeeping systems, dominant platforms are able to manage the flow of cultural content according to incentives and optimizations that target the maximization of advertising revenue (Viljoen et al. 2021). Maintaining the opacity and profitability of these complex systems of automated cultural distribution and monetization requires ongoing control – control over cultural production, control over markets, control over consumer behaviour, and control over regulatory outcomes. This represents an epic and expensive political exercise. In the context of ongoing regulatory efforts to address the privacy impacts of this business model, as well as tackle the obscene market power that platforms have aggregated in the digital economy, dominant platforms appear especially resolute in preventing exposure of the relationships between cultural content, data flow, and economic value that their automated systems control. 

In this article, we trace the movement of money between Big Tech firms and DRSCOs in order to highlight one way that the distributional and political status quo of automated culture reproduces itself. Although it is not possible to directly demonstrate the link between financial support from Big Tech to DRSCOs and the political objectives they pursue, we suggest that these financial relationships likely influence certain civil liberties narratives common to DRSCO outputs – ideas like greater individual control over data – which we argue operate to smooth over the often contradictory interests of platform providers and their ‘users’. 

Our argument proceeds as follows: automation at scale (i.e. via forms of intermediation, advertising and attention economies, and the domination of multi-sided markets) enables Big Tech to accumulate vast economic capital. Big Tech faces threats in relation to these (frequently unethical, at times legally questionable) automated practices, including regulation challenging those business models, as well as competition law and antitrust enforcement that challenges their domination of those profitable markets. Following Maclean et al. (2021) we contend that the strategic distribution of economic capital through philanthropy enables the transference of economic capital into social, cultural and political capital that serves to inoculate platforms from regulatory intervention. This in turn allows Big Tech to continue to accumulate through their automated management and monetization of cultural content. Our examination of automated culture thus takes a wide focus that encompasses the social and political structures that facilitate, sustain and enable it. In doing so, we make original contributions to the field of cultural studies in questioning where and how civil society fits into algorithmic cultural production and perpetuation, and the way that Big Tech uses and guards the economic capital produced through automated culture. We begin with an overview of the money and influence that ‘Big Tech’ wields in various spheres, across political, academic, and civil society work.

Disinfo

Alongside a commitment - so heartfelt - to introduce disinfo legislation in the 2nd half of this year as part of the 'Australian Code of Practice on Disinformation and Misinformation', the Communications Minister has released the June 2021 A report to government on the adequacy of digital platforms’ disinformation and news quality measures.

Unsurprisingly there is no engagement with disinformation/misinfo from members of the Government such as Craig Kelly. 

 The report states 

In December 2019, as part of its response to the Australian Consumer and Competition Commission’s Digital Platforms Inquiry, the Australian Government requested that digital platforms in Australia develop a voluntary code of practice to address online disinformation and news quality. The Australian Code of Practice on Disinformation and Misinformation1 (the code) was launched by industry association Digital Industry Group Inc (DIGI) on 22 February 2021. The code has since been adopted by 8 digital platforms – Google, Facebook, Microsoft, Twitter, TikTok, Redbubble, Apple and Adobe. 

The ACMA was tasked with overseeing the development of the code and reporting to the government on the adequacy of platform measures and the broader impacts of disinformation in Australia. Our report provides new consumer research on users’ experience of disinformation and misinformation on digital platforms and our assessment of the industry’s code. It also provides a range of findings and a number of recommendations for consideration by the government. 

The online propagation of disinformation and misinformation presents an increasing threat to Australians 

Over the previous 18 months, we have seen increasing concern within the community over the ‘infodemic’ of online disinformation and misinformation, particularly in relation to the real-world impacts of COVID-19. The propagation of these falsehoods and conspiracies undermines public health efforts, causes harm to individuals, businesses and democratic institutions, and in some cases, incites individuals to carry out acts of violence. 

To understand the scale and impacts of this issue in Australia, we undertook a mixed- methods study focused on COVID-19 misinformation. Key insights include:

> Most adult Australians (82%) report having experienced misinformation about COVID-19 over the past 18 months. Of these, 22% of Australians report experiencing ‘a lot’ or ‘a great deal’ of misinformation online. 

> Belief in COVID-19 falsehoods or unproven claims appears to be related to high exposure to online misinformation and a lack of trust in news outlets or authoritative sources. Younger Australians are most at risk from misinformation, however there is also evidence of susceptibility among other vulnerable groups in Australian society. 

> Australians are most likely to see misinformation on larger digital platforms, like Facebook and Twitter. However, smaller private messaging apps and alternative social media services are also increasingly used to spread misinformation or conspiracies due to their less restrictive content moderation policies. 

> Misinformation typically spreads via highly emotive and engaging posts within small online conspiracy groups. These narratives are then amplified by international influencers, local public figures, and by coverage in the media. There is also some evidence of inorganic engagement and amplification, suggesting the presence of disinformation campaigns targeting Australians. 

> Many Australians are aware of platform measures to remove or label offending content but remain sceptical of platform motives and moderation decisions. There is widespread belief that addressing misinformation requires all parties – individuals, platforms and governments – to take greater responsibility to improve the online information environment and reduce potential harms. 

Digital platforms have introduced a range of measures in response to the growth of disinformation and misinformation on their services In response largely to global concerns, digital platforms have introduced measures typically based on company-wide policies including:

> supporting third-party fact-checking organisations 

> proactively updating their policies to specifically address unique events, such as the COVID-19 pandemic and the 2020 US presidential election 

> investing in means to signal credible, relevant and authentic information 

> providing financial assistance and grants to news outlets, government and not-for- profit organisations to bolster the spread of credible information and news 

> increased detection, monitoring and enforcement action against groups and networks who use their services to spread disinformation and misinformation. 

Despite platforms’ mostly global approach to updating policies and implementing other actions, many measures have had an impact on Australian users.

> In 2020, Facebook removed more than 110,000 pieces of COVID-related misinformation generated by Australian accounts. 

> Between July and December 2020, Twitter removed 50 pieces of content authored by Australian accounts for contravening its COVID-19 misleading information policy. 

> In 2020, Google blocked 101 million advertisements globally for contravening its misrepresentation policies. 

> TikTok’s COVID-19 Information Hub was visited by over 292,000 Australians between November 2020 and March 2021. 

The above data shows that platforms are taking proactive steps to tackle disinformation and misinformation on their products and services. The introduction of an Australian industry code builds on these actions to codify actions, improve transparency, enhance consumer protections, and implement mechanisms to monitor their effectiveness. It also provides a framework to promote stakeholder collaboration and incentivise further actions by platforms to respond to a rapidly evolving online environment. 

Digital platforms have come together to develop a single outcomes-based code of practice with several important features 

It is extremely positive to see industry, steered by DIGI, come together to develop a single code of practice. A single code should promote a consistent approach by platforms and provide confidence in industry to manage the range of harms associated with disinformation and misinformation. 

DIGI ran a meaningful public consultation process in developing its draft code, which attracted a variety of submissions that clearly influenced subsequent changes. In particular, the scope of the code was expanded to cover misinformation as well as disinformation, a key piece of stakeholder feedback during the consultation process. The ACMA considers this is an improvement on the EU Code of Practice on Disinformation. The code adopts an outcomes-based regulatory approach that allows a range of platforms with different services and business models to sign up to the single code. Signatories are required to sign up to the objective of ‘providing safeguards against harms that may arise from disinformation and misinformation’ and may opt-in to other code objectives, such as disrupting advertising incentives and supporting strategic research. The code also provides signatories flexibility to implement measures to counter disinformation and misinformation in proportion to the risk of potential harm. Signatories must also report annually on the range of measures they will implement to achieve the objectives and outcomes. Importantly, the code also stresses the need to balance interventions with the need to protect users’ freedom of expression, privacy, and other rights. 

Our assessment identifies further improvements that should be made to the code’s scope and the clarity of commitments 

The ACMA has assessed the code to consider whether it has met the expectations set out by the government and has identified a range of improvements. 

In our view, the scope of the code is limited by its definitions. In particular, a threshold of both ‘serious’ and 'imminent’ harm must be reached before action is required under the code. The effect of this is that signatories could comply with the code without having to take any action on the type of information which can, over time, contribute to a range of chronic harms, such as reductions in community cohesion and a lessening of trust in public institutions. 

The code should also be strengthened through an opt-out rather than opt-in model. Signatories should only be permitted to opt out of outcomes where that outcome is not relevant to their service and be required to provide justification for the decision. 

The code is also limited in the types of services and products it covers. Private messaging is excluded, despite increasing concern about the propagation of disinformation and misinformation through these services, particularly when used to broadcast to large groups. Including messaging services within the code, with appropriate caveats to protect user privacy (including the content of private messages), would provide important consumer protections. 

We also consider improvements to the code should be made in relation to: > its application to news aggregation services > the treatment of professional news content and paid and sponsored content > the weight given to news quality as a key aspect of the government’s request to industry. 

The ACMA is also concerned that the code does not place an obligation on individual signatories to have robust internal complaints processes. This was an area of particular concern identified in the Digital Platforms Inquiry. 

The code includes commitments to establish administrative functions within 6 months of code commencement. As code administrator, DIGI will establish a compliance sub- committee, a detailed reporting guideline and a facility to address signatory non- compliance. However, these functions remain under development at the time of finalising this report. As a result, the ACMA has not been able to assess their effectiveness. DIGI and code signatories should consider changes to the code to address the matters identified by the ACMA in its review in February 2022. 

A clear and transparent measurement framework is critical to the effectiveness of a voluntary, outcomes-based regulatory model Signatories were required to nominate their code commitments and deliver an initial report under the code, providing information and data on the measures they have adopted under the code. 

Signatories’ reports provide a large range of information on the actions they have taken to address disinformation, misinformation and news quality, and their investments in collaborative initiatives. 

However, reports are heavily focused on platform outputs and lack systematic data or key performance indicators (KPIs) that would establish a baseline and enable the tracking of platform and industry performance against code outcomes over time. Reports also show inconsistencies in the interpretations of key code terms and in reporting formats. 

Platforms should move quickly to identify KPIs specific to their services and work together to establish industry-wide KPIs to demonstrate the effectiveness of the code as an industry-wide initiative. 

The ACMA recommends a number of actions by government to bolster industry self-regulatory arrangements 

The ACMA considers that it is still too early to draw concrete conclusions on the overall impact or effectiveness of the code. The code administration framework – including a detailed reporting guideline and mechanism to handle complaints – is not due for completion until late August 2021. The design and implementation of these elements will be key to the overall effectiveness of the code. 

Given these circumstances, continued monitoring is required and the ACMA recommends it provide government with another report on the code by the end of the 2022–23 financial year. This will provide sufficient time to assess the operation of the code administration framework and assess the impact of any changes arising from the February 2022 review of the code. As part of this report, the ACMA recommends it continues to undertake focused research on these issues. 

Initial signatory reports identify challenges in obtaining relevant data on platform actions in Australia. Providing the ACMA with formal information-gathering powers (including powers to make record-keeping rules) would incentivise greater platform transparency and improve access to Australia-specific data on the effectiveness of measures to address disinformation and misinformation. Information collected could also be used to identify systemic issues across the digital platform industry and inform future ACMA research. 

More formal regulatory options could be considered, particularly for platforms that choose not to participate in the code or reject the emerging consensus on the need to address disinformation and misinformation. The ACMA recommends that government provides the ACMA with reserve regulatory powers in relation to digital platforms – such as code registration powers and the ability to set standards. This would provide the government with the option to act quickly to address potential harms if platform responses are not adequate or timely. 

There are also opportunities for improved collaboration between government agencies, platforms, researchers and non-government organisations on issues relating to disinformation and misinformation. The ACMA recommends that the government should consider establishing a Misinformation and Disinformation Action Group to provide a mechanism to support future information sharing, cooperation and collaboration. 

The ACMA makes 5 recommendations to the government in its report. 

Recommendation 1: The government should encourage DIGI to consider the findings in this report when reviewing the code in February 2022. 

Recommendation 2: The ACMA will continue to oversee the operation of the code and should report to government on its effectiveness no later than the end of the 2022- 23 financial year. The ACMA should also continue to undertake relevant research to inform government on the state of disinformation and misinformation in Australia. 

Recommendation 3: To incentivise greater transparency, the ACMA should be provided with formal information-gathering powers (including powers to make record keeping rules) to oversee digital platforms, including the ability to request Australia- specific data on the effectiveness of measures to address disinformation and misinformation. 

Recommendation 4: The government should provide the ACMA with reserve powers to register industry codes, enforce industry code compliance, and make standards relating to the activities of digital platforms’ corporations. These powers would provide a mechanism for further intervention if code administration arrangements prove inadequate, or the voluntary industry code fails. 

Recommendation 5: In addition to existing monitoring capabilities, the government should consider establishing a Misinformation and Disinformation Action Group to support collaboration and information-sharing between digital platforms, government agencies, researchers and NGOs on issues relating to disinformation and misinformation.

Referenda

'The Law and History of State and Territory Referendums' by Paul Kildea in (2022) 44(1) Sydney Law Review 31 comments 

Australia’s states and territories have together held more than 50 referendums since Federation in 1901. And yet, as the literature on federal referendums has continued to grow, scholars have largely overlooked the rich history of direct democracy at the sub-national level. This article addresses this gap by providing the first comprehensive review of the use and regulation of referendums by the states and two mainland territories. It draws attention to the immense variety of referendum votes on constitutional amendments and contentious policy issues. It also examines rules and practices on a range of matters, including initiation, the form of the question, the status of the result, voting and campaigning. Additionally, the article surveys the overall state and territory referendum record, including the frequency and approval rate of referendums, and compares it to the federal record. The analysis is informed by a referendum dataset compiled from primary sources by the author. The Appendix, which draws on this dataset, presents the first, single repository of accurate information on state and territory referendums, including dates, topics, results, informality and turnout.