Compulsory Licensing of Patents

Recommendations - some (eg 10.1) utterly unexciting -  'information requests' and findings from the Productivity Commission's 322 page draft report [PDF] on Compulsory Licensing of Patents, noted earlier this year.

Draft Finding 6.1

While the cost and timeliness of the compulsory licensing process could be a barrier for its use by some parties, there are no clear alternatives that would significantly reduce its cost without also reducing the quality of the outcomes and increasing the scope for appeals.

Draft Finding 6.2 

The Australian Government has agreed to introduce a general objects clause recommended by the Advisory Council on Intellectual Property into the Patents Act 1990 (Cth). This could assist in clarifying the context for compulsory licensing and the considerations that should guide a court.

Draft Recommendation 6.1

The Australian Government should seek to remove s. 133(2)(b) from the Patents Act 1990 (Cth), so that a compulsory licence order based on restrictive trade practices of the patent holder is only available under the Competition & Consumer Act 2010 (Cth). The remedy provisions in the Competition & Consumer Act should be amended to explicitly recognise compulsory licence orders to work a patented invention as a remedy under the Act. The new remedy provision should specify that an order must:

• not give the licensee or a person authorised by the licensee, the exclusive right to work the patented invention
• be assignable only in connection with an enterprise or goodwill in connection with which the licence is used.

The new provision should also contain a clause specifying the basis for determining remuneration, which is identical to the corresponding clause in the Patents Act.

Draft Finding 6.3

Section 51(3) of the Competition and Consumer Act 2010 (Cth) — which exempts certain types of conduct involving intellectual property from some provisions of the Act — is unlikely to promote efficient outcomes with respect to access to patented inventions. The Commission is mindful that s. 51(3) addresses a range of intellectual property issues, but in respect to access to patents, sees no reason why it should not be repealed.

Draft Finding 6.4

The current language in s. 135 of the Patents Act 1990 (Cth), which conflates the reasonable requirements of the public with the interests of Australian industry, is inconsistent with promoting community-wide welfare.

Draft Recommendation 6.2

The Australian Government should seek to replace the current ‘reasonable requirements of the public’ test with a new public interest test for compulsory licensing of patents. The new test should specify that a compulsory licence would be available if the following conditions are met:

(a) Australian demand for a product or service is not being met on reasonable terms, and access to the patented invention is essential for meeting this demand.

(b) The applicant has tried for a reasonable period, but without success, to obtain access from the patentee on reasonable terms and conditions.

(c) There is a public interest in providing access to the applicant, having regard to:

• costs to the patentee from granting access to the patented invention
• benefits to consumers and the licensee from the licensee’s access to the invention
• longer-term impacts on community wellbeing.

(d) The terms of any compulsory licence order are consistent with public interest, having regard to:

• the right of the patentee to obtain a return on investment commensurate with the regulatory and commercial risks involved
• the right of the public to the efficient exploitation of the invention.

Draft Finding 6.5

There is an apparent inconsistency between the grounds for issuing a compulsory licence in the Australia–United States Free Trade Agreement and the reasonable requirements of the public test in the Patents Act 1990 (Cth).

Draft Recommendation 6.5

The Australian Government should seek to repeal s. 136 of the Patents Act 1990 (Cth). Current and future international treaty obligations should be incorporated directly into the Patents Act 1990 (Cth) or its subordinate legislation.

Draft Finding 6.6

It is generally in the parties’ best interest to negotiate a voluntary licence in a dependent patent situation. A separate dependent patent ground is unnecessary, where robust competition and public interest grounds for compulsory licensing already exist.

Draft Recommendation 7.1

The Australian Government should seek to amend s. 163 of the Patents Act 1990 (Cth) to make it clear that Crown use can be invoked for the provision of a service that the Australian, State and/or Territory Governments have the primary responsibility for providing or funding.

Draft Recommendation 7.2

The Australian Government should seek to amend the Patents Act 1990 (Cth) to:

• require the Crown to attempt to negotiate use of the patented invention prior to invoking Crown use
• require instances of Crown use to be approved by a Minister (the relevant Federal Minister or State Attorneys General), and that the patentee be provided a statement of reasons no less than 14 days before such use occurs
• specify that in instances of Crown use, the patentee is entitled to remuneration determined on the same basis as that for a compulsory licence.

These first two requirements should be able to be waived in emergencies. However, in all cases patentees should be provided with immediate notice thattheir patents have been used, and a statement of reasons as soon as practical thereafter.

Draft Recommendation 10.1

IP Australia should develop a plain English guide on the compulsory licensing provisions of the Patents Act 1990 (Cth). The guide should be available through the IP Australia website.

Information Request 9.1

The Commission requests further input on the likely costs and benefits of introducing a licence-of-right mechanism in Australia, and whether there would be a net benefit. Feedback is also sought on how such a mechanism should be designed, such as:

• how licence terms and conditions would be determined in cases where the parties fail to reach an agreement
• whether incentives should be provided to patent owners who register a licence of right, such as the reduced patent renewal fees offered in some countries.

Interlocutories and International 'Rights'

'Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy' by David Rolph in 17(2) Media and Arts Law Review (2012) 170-200 comments that

The growing recognition of enforceable rights to privacy across the common law world creates tensions with the existing protections afforded to another dignitary interest, reputation, through the tort of defamation. One area in which this tension is acute is the disposition towards injunctive relief. Defamation law has consistently taken a restrictive approach to injunctive relief, based on a commitment to freedom of speech and an aversion to prior restraint. Yet courts, particularly in the United Kingdom, have shown a readiness to grant injunctions to protect privacy. The interaction between reputation and privacy has not been adequately explored. Taking as its starting-point the decision of Tugendhat J in Terry v Persons Unknown, this article analyses the potentially conflicting approaches to injunctive relief in defamation and privacy. It argues that seeking to ascertain whether the essence of the proceedings in reputation or privacy does not provide a principled approach to the resolution of this problem. The interaction between defamation and privacy poses a problem for the coherent and orderly development of the law. Viewed from this perspective, the article argues that a novel cause of action needs to develop to ensure coherence with the well-established cause of action for defamation. In doing so, it examines a difficult issue of principle raised by this interaction, such as the concept of ‘false privacy’, as well as challenging the view that an award of damages vindicates a plaintiff’s reputation, whereas a plaintiff’s privacy can only be protected by an injunction.

In Rahman v Dubs [2012] NSWSC 1065 Garling J states 

In the "Additional Submissions" to the Court, Mr Rahman refers to these documents and quotes from a part of the letter of the Vice Chancellor of UTS. He then makes this assertion:

"And, thus in doing such acts by the Officials, UTS the applicant construes are of violations of: 

UNHR - Human Rights Article 26 Right to education - 

ICCPR - article 14, 1966 [entry into force 1976], 

International Covenant on Economic and Social and Cultural Rights [Australia is a Signatory and ratified State] Article 13(1) Right of everyone to education (c) Higher education ... of free education) and 

Anti-Discrimination Act NSW ..."

The next paragraph seems to encapsulate the case that Mr Rahman really wishes to make. It is in these terms:

"Throughout the proceedings the applicant submits with evidences of documents in court will testify that the defendant - University of Technology, Sydney - UTS has not submitted any defence for the legitimacy of such acts of 'infringement of educational right' since 2009 to 2012. And thus validates the applicant's relief claims for such acts by the University of Technology - UTS [Officials] in the submitted documents of such legitimate claims and for justice for the cause of UTS decisions that are not legitimate under substantive law of NSW but are of: discretion not obedient to the 'rule of law' since on 19 June 2009."

In short, it seems that Mr Rahman wishes to contend that the conduct of UTS, by its various officers, contravened a right, personal to him, of education, created by one or other or all of:

(a) Article 26 of the Universal Declaration of Human rights which provides: "Everyone has the right to education ... Technical and professional education shall be made generally available and higher education shall be equally accessible to al on the basis of merit"; 

(b) Article 14 of the International Covenant on Civil and Political Rights which does not refer to education but rather equality before the Courts and standards which relate to the conduct of criminal proceedings; and 

(c) Article 13 of the International Covenant on Economic, Social and Cultural Rights which reads: "(i) The States parties to the present Covenant recognize (sic) the right of everyone to education ... [and that] ... (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means ..."

The balance of the submissions seems to make assertions covering allegations involving: (a) counsel for all of the defendants having committed some unspecified crimes; (b) allegations that decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion; (c) allegations that justice has been perverted, obstructed, prevented and disobeyed by both counsel for the defendants and by Judges or other judicial officers of the Court; and (d) there have been breaches, unspecified in nature, or by whom, of Article 70 of the Rome Statute of the International Criminal Court and the International Criminal Court Act 2002 (Cth). 

The causes of action based upon breaches of various international covenants and the Universal Declaration of Human Rights, are not justiciable in this Court. There is no domestic legislation, either of the Commonwealth Government, or the NSW Government, which make these international laws part of the domestic law of NSW. A breach of the international covenants, and laws, is not of itself justiciable, unless and until a domestic law adopts these international covenants and makes them a law of the State: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273. 

But even if they were laws of the State, they are not able to be used in the way in which Mr Rahman seeks to use them. They are statements of ambition, broad rights within a community and perhaps, aspirational goals. They do not create a private cause of action lying in the individual against a State, or any other body, which can be sued upon. 

There is no basis at all for any cause of action asserting that counsel for the defendants has committed an unspecified crime nor that there have been breaches of the International Criminal Court Act or Article 70 of the Rome Statue of the International Criminal Court (assuming that it applies directly in Australia). It is unnecessary to determine this question. 

There is no basis for an allegation that the decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion, nor is there any basis for allegations that justice has be "perverted, obstructed, prevented and disobeyed". 

All of these allegations, to my mind, are vexatious and an abuse of the process of court. There is no reason why the allegations should be allowed to stand, or to be made. 

The proceedings as presently constituted insofar as they seek to challenge earlier decisions of UTS are moot. That is because, as the evidence demonstrates, and as the additional submissions of Mr Rahman appear to accept, the decisions which are preventing Mr Rahman attending as a student of UTS are not those sued upon, but rather much later decisions. 

If Mr Rahman has any claim for administrative law relief, and it is far from certain that he does, then it is those decisions which, logically, must be the subject of the proceedings. But they are not. 

In all of the circumstances, it is clear, beyond argument, that the causes of action relied upon are doomed to fail and it is appropriate for the Court, having regard to the terms in which they are alleged, and the absence of any support them, to exercise its discretion and summarily dismiss the proceedings, because no reasonable cause of action is disclosed and, as a result, the proceedings are an abuse of process of the Court.

Lawyering

The 72 page Changing the rules: The experiences of female lawyers in Victoria report [PDF] by the Victorian Equal Opportunity and Human Rights Commission examines the experiences of women in the legal profession in that state, focusing on discrimination, sexual harassment and the accommodation of parental and carer responsibilities.

 The report indicates that the Commission "sought to understand how prevalent these problems were, why they were occurring, and how they impacted on the lives of women who had experienced them".

It comments that -

The reasons why women are attracted to the profession are varied. Some see it as an instrument for social change; others as an opening to a high-paying career with associated power and independence while some may value the intellectual rigour that the law provides. For a few, a law degree could be the launching pad to a political career. Presently the two most powerful posts in Australian politics are held by women – Prime Minister Julia Gillard and Governor- General Quentin Bryce – both with law degrees. Here in Victoria, Marilyn Warren is the first female Chief Justice.

Regardless of the reason for their attraction to the law, there is no doubt that women are graduating and participating in the legal profession at a high rate, however their career trajectories remain quite different to that for men. We know for example that:

• while more than half of all law graduates are female, a recent survey revealed that only 21% of partners in Australian law firms are women

• women are more likely than men to remain in roles where only an employee-practising certificate is required, while men were more likely to move to roles where a principal practising certificate is required

• women lawyers earn less than their male counterparts

• attrition rates remain a concern for both male and female lawyers, however more women than men leave the law within five years

• discrimination and harassment issues are reported as being present.

 As the profession becomes more diverse, it could be assumed that women will eventually share the same career pathways and opportunities as men. However, even with more than 30 years of equal opportunity legislation, it appears that the ‘pipeline’ of increasing numbers of women in the law has not resulted in equality in the profession. This research has sought to understand and report on the experiences of women in the legal profession – focusing on sexual harassment, discrimination and accommodation of parent and carer responsibilities. The Commission wanted to know how common these problems were, and how they impacted on the women who experienced them. We also wanted to know what positive actions were being taken by legal practices and by the profession as a whole to improve equality for women in the law.

We collected quantitative and qualitative data through an online survey. More than 400 women lawyers participated in the survey. We supplemented this data with interviews with exemplars from the profession and conducted a focus group with women who had left the legal profession.

There is no doubt that in recent years a number of legal firms have worked hard to address some of the factors that have a disproportionate impact on women. The Commission wants to promote and build on this leading practice and this report includes examples of firms that have implemented a variety of positive measures.

Its main findings are 

Discrimination

• Forty per cent of survey respondents had personally experienced discrimination while working as either a lawyer or a legal trainee.

• Discrimination took various forms and manifested in multiple ways. Of the 168 women who reported discrimination, 84 said discrimination took the form of a hostile work environment. Sixty-seven reported workplace bullying, 65 reported unfair work allocation while 64 said the discrimination manifested as unequal remuneration.

• While 56% of survey respondents were from private firms, 70% of those reporting discrimination in their current or former workplace worked in a private firm when the discrimination occurred.

• When asked about their relationship to the discriminator, over half (55.2%) responded that it was their employer or partner, while 40.2% indicated that the discriminator was their immediate supervisor or manager.

• Six out of 10 women who had experienced discrimination did not make a complaint. One in four did not tell or seek help from anyone, including family or friends.

• Respondents reported significant impacts that the discrimination had on their mental health, their physical health and on career opportunities.

Accommodating parental and carer responsibilities

• Thirty-five per cent of survey participants had made a request for their employer to accommodate responsibilities as a parent or carer.

• Of the 149 women who made requests, the majority asked for flexible hours of work (72.5%) while 45.6 per cent requested to work from home.

• Of those who reported the outcome of their request to accommodate parental and/or carer responsibilities, less than five per cent had their request refused.

• 79% had their request approved; another 16% stated that their request was partially approved.

• Despite the actual outcome of their request, respondents reported employer attitudes that ranged from outright hostility to lack of support, and pressure to increase work hours while others felt devalued by work allocation that did not meet their capacity and experience.

Sexual harassment

• 100 survey respondents (23.9%) stated that they had experienced sexual harassment whilst working as a lawyer or legal trainee in Victoria.

• Another 48 (11.6%) were aware of instances of sexual harassment that had happened to other female lawyers in their workplace in the last 12 months.

• Sexual harassment was likely to occur in the early stages of employment with 63%  of incidents occurring within the first 12 months of being in the workplace.

• The most common conduct reported included sexually suggestive comments or jokes, intrusive questions about their private life or physical appearance, unwelcome or inappropriate physical contact, and unwelcome staring or leering.

• In 78% the harasser held more senior positions within the workplace as either the immediate supervisor, employer/partner or a more senior co-worker. In  52% of cases there was more than one harasser.

• Two-thirds of those who had experienced sexual harassment did not make a complaint. 29% did not tell anyone at all.

• The reasons for not reporting varied from fear of negative repercussions to their career, fear of not being believed or ostracised, lack of awareness about complaints processes, and ineffective responses and remedies.

• Of the respondents who reported the outcome of making a complaint, positive results included: the harassment stopped, receiving an apology, and the complaint leading to changing workplace practices. One respondent received compensation.

• The reported impacts of the sexual harassment included severe mental health and physical health issues as well as work/economic related consequences.

Challenges at a systemic level

Cultural factors in the profession are affecting the career pathways for women lawyers. Literature over the past decade has outlined the disproportionate impact that these cultural and structural factors have had on women.

While variation naturally occurs between firms and organisations, many reports have focused on the long, demanding and intractable nature of billable hours, the male-dominated culture of the profession, a lack of transparency in career progression and remuneration levels, and the importance of personal relationships and bonding to career progression. This study found:

• female law graduates can expect to earn 3.8% less than their male colleagues, while special counsel/consultant positions have a 7.8% pay differential

• issues that contribute to the gender pay gap include gender discrimination, the undervaluation of women’s work, paysetting methods, occupational and industrial segregation, lack of investment in women through training and development and career breaks (including returning to work from maternity leave)

• a lawyer’s commitment to the firm was in some cases measured by their visibility, that is how many hours they were seen to put in, creating a culture that valued ‘presenteeism’. This perception has adverse impacts for women who have primary parental and carer responsibilities, as it is not conducive to working flexible hours, or to working from home or remote locations

• billable hours was cited by some respondents as a barrier to progression within the profession and was used to justify gender discrimination. Billable hours may in some circumstances, operate as a barrier to women (and men) whose work hours and patterns may require flexibility based on their parental or carer responsibilities.

From our research, it was clear that individual legal practices and firms are working successfully to promote gender equality. Similarly, the Law Institute of Victoria, Victorian Women Lawyers and other professional bodies are working proactively on these issues. However, findings from this study and from other literature point to systemic barriers to the effective workforce participation of women. So while these problems extend beyond Victoria and appear to be issues in other jurisdictions, both in Australia and overseas, it is clear that there is more work to be done to achieve equity in the profession and that the Victorian profession has much to gain from being leaders in this regard.

The Commission is aware of the community perception that lawyers are in privileged positions, with practitioners being educated, empowered, and not necessarily a group that is considered disadvantaged. However, sex discrimination and sexual harassment cut across all demographics, so that even women who are well educated and aware of their legal rights may still be adversely impacted by systemic and cultural practices that entrench discrimination.

As with all professions, gender inequality in the law, and the power structures that continue to support it, need to be addressed proactively at a systemic and organisational level, rather than solely being left to women making individual complaints.

The report offers a range of recommendations  to stakeholders such as the Law Institute of Victoria (LIV).

1. Providing practice support to organisations in the form of information and resources

a. Publishing guidance to support individual law firms to develop a business case for change. This includes producing tools to assist law firms to measure the cost of staff attrition.

b. Developing an information exchange on best practice that could provide firms with an opportunity to share information, resources and to discuss challenges and successes.

c. Developing and promoting education programs including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.

d. Developing a communications plan to promote issues of gender equality, flexible work practices and awareness of sexual harassment in the legal profession. This could include publishing articles in the Law Institute Journal, holding seminars, providing media releases and using social media.

2. Providing support to individuals in the form of information and resources

a. Developing and promoting education programs to individual practitioners including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.

b. Promoting available peer mentoring programs to increase participation rates. This includes the: i) Law Institute of Victoria’s Mentoring Program. ii) Victorian Women’s Lawyers Mentoring Program.

3. Collaborating with key stakeholders on advocacy and policy

a. Progressing research on different business models of billing. Stimulate debate in the legal profession about appropriateness of the billable hours framework and the profession’s culture of equating long hours with productivity and profitability.

b. In consultation with law firms, considering the development of a voluntary code for the legal sector – this may include the profile of the firm, periodic reporting on percentage of women in partnership positions, number of employees working flexibly, number of complaints made based on gender, number of discrimination/ sexual harassment complaints lodged internally and externally, outcome of complaints. This could also  include that firms opt in for complaints to be handled by a panel review that comprises external organisations.

c. Collecting data and publishing an annual report card on the state of Victoria’s legal sector in the Law Institute Journal. This is to include statistics on participation rates, attrition rates, leadership levels, gender pay gap. These reports could be supplemented by the diversity figures for individual practices, this would help to assist to identify problem areas and could also provide potential recruits and clients with access to diversity information.

d. This could later be enhanced by adding other diversity related factors such as age and ethnicity.

e. Consider developing sector-wide targets or quotas for women in leadership positions. Stakeholders to explore Australian Stock Exchange model for voluntary/compulsory quotas of the percentage of women at partnership levels.

 4. Recognising best practice

a. Consider expanding the LIV Legal Awards to include a category for promoting diversity (in particular the promotion of gender equality). There is a possibility that the award could then be broken down into suburban, regional and large firms.

 5. Additional recommendations

a. That the Commission work with Diversity Council Australia to consult on the development of a guideline aimed at promoting gender equality in the legal sector – the business case.

b. That Legal Professional Learning Training providers consider the inclusion of modules on sexual harassment and discrimination as part of their curriculum to build sector capacity around these issues.

Records

An outline of Director of Human Rights Proceedings v Hamilton [2012] NZHRRT 24 from the NZ Privacy Commissioner's Private Word -

An accountant's refusal over a four year period to give a former client access to her personal information has resulted in the Human Rights Review Tribunal awarding $20,000 in damages and $7,500 in costs against him. 

The Tribunal said accountant David Hamilton's actions amounted to "arrogant indifference" to his client's difficult situation when he ignored her requests for access to her personal information under principle 6 of the Privacy Act. 

The woman and her husband - who ran businesses together - had become concerned about delays in Mr Hamilton's work and decided to change to another accountant. The couple began asking him for their personal information in August 2008 so that they could get their annual accounts reviewed and complete tax returns for Inland Revenue. Having received nothing, the woman complained to the Privacy Commissioner. After investigating, the Commissioner referred the matter to the Director so he could take proceedings against Mr Hamilton in the Tribunal. 

Mr Hamilton gave various reasons for not providing his former clients with access to their personal information over the following four years. 

For instance, Mr Hamilton said that his appearance before the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants, a backlog of work and a decline in his business affected the attention he gave to his former client's Privacy Act requests. Additionally, Mr Hamilton told the Tribunal that he did not did not believe the accounting records he had produced but "not been paid for" were the woman's personal information. 

Mr Hamilton admitted that despite giving an undertaking to the Accountants' Disciplinary Tribunal that he would release the files to his former client, he had not done so at the date of the Tribunal hearing other than providing a few peripheral documents as a "token gesture". 

Mr Hamilton he had been asked to provide a quote for photocopying costs but said he felt that it was a "big mission" to locate the documents let alone add up the cost of copying them. 

After reviewing all the evidence, the Tribunal concluded that the evidence overwhelmingly established that Mr Hamilton had made no effort to comply with his obligations under principle 6 of the Privacy Act to supply the woman with her accounting records and that he had no grounds under the Act for this refusal. It classified his manner as "contemptuous". 

The Tribunal considered damages and noted that Mr Hamilton's failure to give his former clients their information resulted in the loss of an opportunity to provide information in returns to Inland Revenue in a timely way. The Tribunal awarded the woman $5,000 for this loss of benefit. 

For emotional harm, the Tribunal awarded the woman $15,000. The Tribunal had heard evidence that around the time the requests began the former clients' relationship had ended, one of their sons had died, and another son had been hospitalised. 

The Tribunal considered that the former clients were in a fragile state and that Mr Hamilton was aware of the woman's difficult circumstances but was indifferent to them. Mr Hamilton's failure to provide information that she needed to file overdue returns to Inland Revenue was also a significant source of stress and anxiety for her. 

As a result, the Tribunal considered that a $15,000 award of damages was appropriate. 

Finally, the Tribunal awarded the Director of Human Rights Proceedings $7,500 costs against Mr Hamilton. The Tribunal also ordered release of the requested information to the woman within 20 working days of the date of the decision.

Enhancement

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) has received royal assent.

It amends the Privacy Act 1988 (Cth) to

• replace the current privacy principles for the public and private sectors (ie the NPP and IPP) with a single set of privacy principles - the Australian Privacy Principles (APPs)
•  implement a comprehensive credit reporting systemfeaturing five kinds of personal information, codes of practice under the APPs and a credit reporting code (inc powers for the Privacy Commissioner to develop and register codes that are binding on specified agencies and organisations)
• clarify the functions and powers of the Information Commissioner 
• increase the commissioner's ability to resolve complaints, recognise and encourage the use of external dispute resolutions services, conduct investigations and promote compliance with privacy obligations. 

 This Act also makes consequential amendments to 55 Cth statutes, including the

• Acts Interpretation Act 1901
• Aged Care Act 1997
• A New Tax System (Family Assistance) (Administration) Act 1999
• Anti-Money Laundering And Counter-Terrorism Financing Act 2006
•  Auscheck Act 2007
• Australian Citizenship Act 2007
•  Australian Curriculum, Assessment And Reporting Authority Act 2008
• Australian Passports Act 2005
• Australian Prudential Regulation Authority Act 1998
• Commonwealth Electoral Act 1918
• Crimes Act 1914
•  Dairy Produce Act 1986
• Defence Act 1903
• Defence Force (Home Loans Assistance) Act 1990
• Defence Home Ownership Assistance Scheme Act 2008
•  Defence Service Homes Act 1918
• Education Services For Overseas Students Act 2000
•  Extradition Act 1988
• Fair Work (Building Industry) Act 2012
•  Freedom Of Information Act 1982
•  Healthcare Identifiers Act 2010
•  Higher Education Support Act 2003
• Horse Disease Response Levy Collection Act 2011
• Inspector Of Transport Security Act 2006
• Migration Act 1958
• Military Rehabilitation And Compensation Act 2004
• Mutual Assistance In Criminal Matters Act 1987
•  National Health Act 1953
•  National Health Reform Act 2011
• National Health Security Act 2007
•  National Vocational Education And Training Regulator Act 2011
•  Olympic Insignia Protection Act 1987
•  Ombudsman Act 1976
• Paid Parental Leave Act 2010
•  Personally Controlled Electronic Health Records Act 2012
•  Private Health Insurance Act 2007
•  Product Stewardship Act 2011
•  Quarantine Act 1908
•  Retirement Savings Accounts Act 1997
• Social Security (Administration) Act 1999
• Stronger Futures In The Northern Territory Act 2012
• Superannuation Industry (Supervision) Act 1993
• Supported Accommodation Assistance Act 1994
• Telecommunications Act 1997
•  Telecommunications (Consumer Protection And Service Standards) Act 1999
• Therapeutic Goods Act 1989
• Trade Marks Act 1995
• Veterans' Entitlements Act 1986
• Australian Crime Commission Act 2002
•  Law Enforcement Integrity Commissioner Act 2006
• National Consumer Credit Protection Act 2009
•  Taxation Administration Act 1953
• Australian Information Commissioner Act 2010
• Australian Human Rights Commission Act 1986
• Data-Matching Program (Assistance And Tax) Act 1990

Apps

The US Federal Trade Commission has released a short report [PDF]  on Mobile Apps for Kids: Disclosures Still Not Making the Grade that considers the privacy disclosures and practices of apps for children in the Apple App and Google Play and stores.

The report covers the FTC’s second survey of kids’ mobile apps, the first having been undertaken last year. In the 2011 survey the FTC noted "little progress toward giving parents the information they need to determine what data is being collected from their children, how it is being shared, or who will have access to it". Progress since that study has been slow. The FTC comments that

many of the apps surveyed included interactive features, such as connecting to social media, and sent information from the mobile device to ad networks, analytics companies, or other third parties, without disclosing these practices to parents. 

More directly, FTC  Chair  Jon Leibowitz commented that although

we think most companies have the best intentions when it comes to protecting kids’ privacy, we haven’t seen any progress when it comes to making sure parents have the information they need to make informed choices about apps for their kids. In fact, our study shows that kids' apps siphon an alarming amount of information from mobile devices without disclosing this fact to parents. All of the companies in the mobile app space, especially the gatekeepers of the app stores, need to do a better job. We'll do another survey in the future and we will expect to see improvement.

The latest survey found that:

• Parents are not being provided with information about what data an app collects, who will have access to that data, and how it will be used. 
• Only 20% of the apps staff reviewed disclosed any information about the app’s privacy practices. 
•  Many apps (nearly 60% of the apps surveyed) are transmitting information from a user's device back to the app developer or, more commonly, to an advertising network, analytics company, or other third party. 
•  A relatively small number of third parties received information from a large number of apps. This means the third parties that receive information from multiple apps could potentially develop detailed profiles of the children based on their behavior in different apps. 
• Many apps contain interactive features – such as advertising, links to social media, or the ability to purchase goods within an app – without disclosing those features to parents prior to download. 
• 58% of the apps reviewed contained advertising within the app, while only 15% disclosed the presence of advertising prior to download. 
• 22% of the apps contained links to social networking services, while only nine percent disclosed that fact. 
• 17% of the apps reviewed allow kids to make purchases for virtual goods within the app, with prices ranging from 99 cents to $29.99. Although both stores provided certain indicators when an app contained in-app purchasing capabilities, these indicators were not always prominent and, even if noticed, could be difficult for many parents to understand.

The report reflects examination by FTC staff  of  hundreds of apps for children, including disclosures and links on each app’s promo  page in the app store, on the app developer’s website, and within the app. It indicates that

most apps failed to provide any information about the data collected through the app, let alone the type of data collected, the purpose of the collection, and who would obtain access to the data. Even more troubling, the results showed that many of the apps shared certain information with third parties – such as device ID, geolocation, or phone number – without disclosing that fact to parents. Further, a number of apps contained interactive features – such as advertising, the ability to make in-app purchases, and links to social media – without disclosing these features to parents prior to download. 

The FTC has urged all entities in the mobile app industry (inc app stores, developers and third parties providing services within the apps) to accelerate efforts to ensure that parents have the key information they need to make decisions about the apps they download for their children. It also urges implementation of recommendations in the FTC's recent Privacy Report such as:

• incorporating privacy protections into the design of mobile products and services; 
• offering parents easy-to-understand choices about the data collection and sharing through kids’ apps; and 
• providing greater transparency about how data is collected, used, and shared through kids’ apps. 

In a nice example of proactive policing, which could be emulated by the OAIC in Australia, the FTC indicates that it is "launching non-public investigations to determine whether certain entities in the mobile app marketplace are violating the Children’s Online Privacy Protection Act or engaging in unfair or deceptive practices in violation of the Federal Trade Commission Act".

Discrimination and Offence

From the short Australian Human Rights Day oration by former NSW Chief Justice Spigelman -

I wish to discuss the boundary between hate speech, a significant factor in social inclusion, and free speech, perhaps the most fundamental human right underpinning participation in public life.

Human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict. This is a context bedevilled by a conflict of metaphors: from “rights as trumps" to “balancing". As Benjamin Cardozo warned us: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it".

“Balancing" is often a fraught process, particularly in the usual context where the conflicting values are simply incommensurable. As one United States Supreme Court Justice put it, the process is often like asking “whether a particular line is longer than a particular rock is heavy". In the present context, the issue requires determination of how much weight is to be given to the right to freedom of speech. For many, albeit not all, that right is usually entitled to determinative weight when it conflicts with other rights, relevantly, those protected by anti-discrimination statutes.

This issue has been controversial in Australia in recent years, in the context of the racial vilification provision in section 18 C of the Racial Discrimination Act 1975, which is proposed to be re-enacted as section 51 of the new omnibus legislation, the Human Rights and Anti- Discrimination Bill 2012. The Bill was recently released for comment, an invitation I will take up in this address.

There may now have elapsed sufficient time for us to debate the issue dispassionately, and not on the basis of whether or not you like Andrew Bolt. The focus of that debate was not on the existence of a racial vilification provision, but on the breadth of the conduct to which section 18 C extends, namely, conduct “reasonably likely … to offend, insult, humiliate or intimidate another person".

The key criticism was directed to the fact that the section made speech which merely “offends" unlawful. A similar, but less powerful objection, can be made to the reference to “insult". The critique did not, generally, extend to the words “humiliate or intimidate". ...

Spigelman goes on to comment that

I agree with Professor Waldron. His detailed analysis supports the proposition that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.

I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive. I have not conducted a detailed review of the international position in this respect. However, so far as I have been able to determine, we would be pretty much on our own in declaring conduct which does no more than offend, to be unlawful. In a context where human rights protection draws on a global jurisprudence, this should give us pause when we re-enact s 18C and before we extend such protection to other contexts.

Section 19(2)(b) of the proposed Human Rights and Anti- Discrimination Bill 2012, introduces “offending” into the definition of discrimination for all purposes, not just for racial vilification. None of the other pre-existing Commonwealth Acts – covering sex, disability and age discrimination –extends the concept of discrimination to conduct which only offends.

The new s19 defines, for the first time, discrimination by unfavourable treatment to include “conduct that offends, insults or intimidates" another person. As has always been the case with s 18C, the relevant conduct must occur “because the other person has a particular protected attribute”. Significantly, unlike existing s 18C (or its replacement by the new s 51), there is no element of objectivity, as presently found in the words “reasonably likely to offend”. It appears to me the new Bill contains a subjective test of being offended.

There are 18 separate “protected attributes” set out in section 17 of the draft Bill, seven of which apply only in the employment context. These are wide ranging and, in a number of respects, novel. One such attribute is “race”. This is not just redundant. It extends the protection of proposed s 51 because of the absence of an objective element.

The inclusion of “religion” as a “protected attribute” in the workplace, appears to me, in effect, to make blasphemy unlawful at work, but not elsewhere. The controversial Danish cartoons could be published, but not taken to work. Similar anomalies could arise with other workplace protected attributes, eg. “political opinion”, “social origin”, “nationality”.

Further, each of the four existing Commonwealth anti- discrimination Acts proscribe publication of an advertisement or notice which indicates an intention to engage in discriminatory conduct. Section 53 of the new omnibus Bill goes further into freedom of speech territory, by extending this proscription beyond advertisements to any publication.

The new Bill proposes a significant redrawing of the line between permissible and unlawful speech. This is so, notwithstanding the ability to establish that relevant conduct falls within a statutory exception. A freedom that is contingent on proving, after the event, that it was exercised reasonably or on some other exculpatory basis, is a much reduced freedom. Further, as is well known, the chilling effect of the mere possibility of legal processes will prevent speech that could have satisfied an exception.

When rights conflict, drawing the line too far in favour of one, degrades the other right. Words such as “offend” and “insult”, impinge on freedom of speech in a way that words such as “humiliate”, “denigrate,” “intimidate”, “incite hostility” or “hatred” or “contempt”, do not. To go beyond language of the latter character, in my opinion, goes too far.

None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech. We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.