The Brief 2019 Edition 3

Macquarie University Law Society magazine Edition 3, 2019 (Volume 25)

Access

and Anonymity Ed.3 2019

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Sponsors

Contents Features

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[Special Contribution] Young Lawyers Society With Ashleigh Fehrenbach & Jessica Norgard Facial Recognition Technology Ellen Brown Journalistic Freedom Celine Nalbandian

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Metadata Retention Laws Beth Jones

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China: A New Era of Online

Surveillance Capitalism Hannah Duque

Pay Secrecy Clauses in Employment Contracts Nick Haughain

Censorship Gopikrishna Giritharan

Regulars

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What’s New in the Law? Puneet Sandhu Social Justice Corner: Diversity in the Legal Profession Kevin Chen Devil’s Advocate: Is our Encrypted Data still Protected?

Angela Dela Cruz & Simone Alexander Under the Radar: Australia’s Recognition of Indigenous Cultural Heritage Samantha Marshall

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A Year in Review: Photos from MULS Events 2019 Stuff Law Students Like: May it please the court?

Kevin Ahmadi Postcard from Abroad: Exeter, United Kingdom Nerissa Puth A Brief Review: When They See Us Brindha Srinivas

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Editor’s Welcome

President’s Welcome

Dear Readers, Current issues of journalistic freedoms, metadata retention, censorship and privacy laws are becoming more significant as technology continues to rapidly develop and extend its reach. There is a growing tension between freedom of information and expression and the right to privacy. Technology is part of everyone’s lives and is becoming more and more ingrained in our society, as is the sharing of and access to personal information.

This edition of The Brief considers how our laws are trying to manage these competing interests and where they are falling short. We also explore where reform is needed, and how we can reconcile both sides of the coin. This is an area which will continue to challenge society and therefore law-makers as technologies designed to further economic and social progress continue to be developed. Also keep an eye out for the regular segments keeping you updated on mooting and exchange experiences.

We are fortunate to have a special contribution from? Ashleigh Fehrenbach and Jessica Norgard of the Young Lawyers Society, Communications, Entertainment and Technology Committee. The Young Lawyers Society offers unique opportunities to learn and engage with others who are passionate about various areas of the law, each bringing different experiences to the conversation.

On another note, this is my final edition as Editor-inChief for 2019! I would like to recognise the incredible

Dear Readers, It is my pleasure to present the final edition of The Brief for 2019. Thank you to all of the contributors who have produced fantastic articles this year. The quality of writing and interesting topics seems to improve year on year and I am always impressed with the insights to be gained by reading The Brief. I would also like to extend a special thanks to the Editor, Emalee Walker for her tireless effort throughout the year.

Privacy is an issue that effects everybody.

Whether it be companies selling personal data, facial recognition technology issues or freedom of the press, discussions around privacy are more relevant than ever. This edition of The Brief will focus on a number of topics you may not think would be relevant to personal privacy in the traditional sense including workplace discrimination and secrecy clauses in employment contracts.

As you read each article I encourage you to think about how questions of how data retention, encryption and surveillance affect your everyday life. These issues often go unnoticed in today’s society but are more critical than ever.

As law students we are equipped with the tools and skills to make positive change and issues of law reform in the privacy space are a hot topic globally. At the moment, governments around

Emalee Walker | Editor-in-Chief

Matthew Harris | President

team of contributors this year whom I have had the pleasure of working with as they developed some intriguing articles from interesting perspectives.

I hope you enjoy this edition and thank you for supporting The Brief.

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the world are grappling with legal and social issues surrounding privacy and it will be very interesting to see what the future holds for us all.

Thanks again our wonderful contributors and all the best for the rest of the year.

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thebrief.muls.org Edition 3, October 2019 (Volumn 25) EDITOR-IN-CHIEF Emalee Walker

DIRECTOR OF PUBLICATIONS Michael Graziano DESIGNER Nathan Li

SPECIAL CONTRIBUTION

Current and former Chair of the Young Lawyers Society Communications, Entertainment and

What’s New

in the Law Puneet Sandhu

Technology Law Committee, Ashleigh Fehrenbach and Jessica Norgard.

WRITERS (IN ALPHABETICAL ORDER) Angela Dela Cruz, Beth Jones,

Brindha Srinivas, Celine Nalbandian,

Ellen Brown, Gopikrishna Giritharan,

Hannah Duque, Kevin Chen, Kevin Ahmadi,

Nerissa Puth, Nick Haughain, Puneet Sandhu, Samantha Marshall, Simone Alexander.

SUB-EDITORS

Avnoor Guron, Brian Massone, Carlie Moses, Carolyn Araboghlian, Jessica Go, Juwariya Malik, Vrinda Jain.

EDITORIAL REVIEW

Michael Graziano, Director of Publications IMAGES

Shuttershock unless otherwise stated.

The Brief’s print edition is published three times

a year by the Macquarie University Law Society, Sydney Australia.

Visit our website at thebrief.muls.org.

DISCLAIMER

All views expressed herein are those of the

individual authors and do not reflect, in any way, the attitude of the Macquarie University Law

Society. The Macquarie University Law Society

does not accept any responsibility for the losses flowing from the publication of material in The Brief.

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Consumer Data Right On the 1st of August 2019, the Treasury Laws Amendment (Consumer Data Right) Act 2019 (Cth) was passed by the Parliament after its announcement in May 2018. In the words of Prime Minister Scott Morrison, the Consumer Data Right (CDR) aims to give consumers more control over their personal data and introduce open banking which ‘will help with the development of better and more convenient products and services customised to individual needs’.

The Consumer Data Right intends to provide consumers with greater access to their data.

Consumers can then share this information with trusted third parties of their choice.

Anna Bligh, CEO of the Australian Banking Association, has commended the changes as a step in the right direction as it will foster consumer trust in organisations. According to Bligh this is ‘a golden opportunity for the banking sector to become the poster child for consumer rights’. The formal rollout of the Consumer Data Right is set for February 2020 in the Banking sector and will later be followed by the energy and telecommunications sector.

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What’s New in the Law Mobile Phone Detection Cameras

Notifiable Data Breach (NDB) Scheme The Notifiable Data Breach (NDB) scheme was introduced as part of amendments to Part IIC of the Privacy Act 1988 (Cth) (Privacy Act). The changes came into force on the 22nd of the February 2018, and require organisations that are subject to the Privacy Act to asses and notify instances of data breach to the Australian Information Commissioner (OAIC) and to affected individuals. Organisations are required to notify affected parties within 30 days of breach and notifications must include any recommendations on how affected individuals should respond to a data breach. Since its introduction, around 812 incidents of data breach have been notified to the OAIC, in comparison to 114 voluntary notifications in 2017.

ACCC Report calling for Reform to Strengthen the Privacy Act The ACCC Digital Platforms report has found that consumers are prevented from giving fully informed consent or making informed decisions regarding the use of their personal data by companies like Google and Facebook. ACCC’s investigations into Facebook and Google found that both companies hold ‘substantial market power’ and a monopoly over digital advertising. The report proposes 23 recommendations including supporting journalism to undertake more serious reporting, an enforceable privacy code for digital platforms, and raising

penalties for interference with privacy. Other recommendations include strengthening the Privacy Act and providing for broader reform to the Australian privacy law framework.

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The NSW Privacy Commissioner has raised concerns that mobile phone detection cameras could lead to an invasion of privacy of motorists. This camera based technology is still being investigated and was tested at different locations across Sydney, including the M4 and Anzac Parade, between January and April this year. This forms a part of the Road Safety Plan 2021, which is aimed at reducing fatalities by 30% by 2021. The Executive Director for the Centre of Road Safety, Bernard Carlo, stated that ‘using a phone behind the wheel increases the risk of crashing fourfold’. The cameras have been introduced to combat this issue.

However, unlike red light or speeding cameras, these cameras take photos of all motorists, not just offenders. As such, the Privacy Commissioner has urged Transport for NSW to develop a policy to ensure that the personal information of drivers is protected and not used for purposes other than detecting illegal mobile phone use.

Opal Card Privacy Case The NSW Civil and Administrative Tribunal ruled that Transport for NSW cannot use opal cards to store personal data for the purpose of tracking the movements of users. In March 2018, the Tribunal ruled in favour of Nigel Waters, a gold opal card user who brought an action against Transport for NSW. Waters argued that by having to register his personal information such as address and date of birth, he could be tracked. The Tribunal agreed that information provided at the time of application and registration is personal information and should be subject to privacy laws. The Tribunal ruled that commuters have the right to stay anonymous and should be able to opt out of providing their personal information when registering. Waters, who is also a member of the Australian Privacy Foundation, commended the ruling as a ‘major win for privacy rights in NSW’.

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Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

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Special Contribution:

Young Lawyers Society

Communications, Entertainment and Technology Committee With Ashleigh Fehrenbach (Chair)

Young Lawyers Society Jess and Ash: NSW Young Lawyers was established in 1963 as a Committee of the Law Society of NSW. NSW Young Lawyers is now the largest body of young and newly practising lawyers, and law students, in Australia, with 15 Committees each

dedicated to a particular area of law.

The Communications, Entertainment & Technology Law (CET) Committee is one of those 15 committees and is a forum for lawyers and law students to share their interest in the laws relating to the media, entertainment, intellectual property and technology sectors.

The Committee aims to serve the interests of lawyers, law students and other members of the community concerned with areas of law relating to information and communication technology, entertainment, intellectual 8 | The Brief

and Jessica Norgard (Former Chair)

property, the media, advertising and consumer protection, privacy, confidential information. This is achieved through regular discussion about developments in the law (including cases, legislation, industry codes, guidelines, codes and standards of practice and law reform), networking, seminars, events, publications and policy review activities, consistent with the NSW Young Lawyers’ Constitution.

Communications, Entertainment and Technology Committee Ash: I became involved in the CET committee shortly after completing a summer clerkship at a Sydney law firm. Wanting to know more about media law (which had become my favourite subject at university) and what lawyers in that area actually did, one of my excellent tutors took me Ed.3 2019

along to my first meeting and introduced me to the Chair and the executive of the Committee. From the outset, I found that the CET Committee provided excellent opportunities for professional networking and knowledge sharing. I gradually become more and more involved with the Committee by assisting

in writing submissions on Parliament issues papers, to becoming the Special Interest Group (more on this later…) Communications leader then transitioned from Vice Chair to Chair this year.

Jess: I became involved in CET early on during university when I entered an essay writing competition and was picked to have tea with Justice Kirby! Once I moved to Sydney as part of my graduate job at Ashurst, I started regularly attending meetings and getting more involved. I loved hearing about the different career opportunities that were available in this space and enjoyed broadening my Sydney networks (having gone to university in Newcastle). I eased myself into Committee involvement – first as part of a submissions sub-committee, then as Special Interest Group leader, then Vice-Chair, and Chair. I have recently stepped down as Chair and am continuing to support the committee in my Immediate Past Chair capacity.

Jess and Ash: Our membership is diverse and includes law students, private practitioners, corporate counsel and government officers. Many of the CET Committee’s long-standing active members have a wealth of experience in their chosen field of law and have combined legal and industry experience. As a result, there are plenty of opportunities for new members to learn about various career paths and the skills and what it takes land your dream job.

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We have one of the largest active memberships of NSW Young Lawyers committees, but we are always delighted to have new faces at our monthly meetings!

Everyone is welcome to come along in person (or dial in) and contribute as much or as little as you wish. This is a standing open invite and holds true

regardless of whether you are practicing law already or not or just keen understand how the committee works.

In addition to monthly meetings, the CET Committee regularly organise topical seminars, guest speakers, social and networking events, submissions on policy and law reform and publish various publications. Most recently, we held our ‘SIGnificant Events of 2019’ panel discussion in August, in which representatives from our committee as well as industry experts in the field presented on the most recent and compelling developments in the committee’s primary areas of focus. We have three Special Interest Groups that provide monthly reports at our meetings, and a summary of those updates are circulated to all members (in the ‘SIG Wrap’).

The Special Interest Groups are communications, entertainment and technology. The SIG Wrap, presented by the Special Interest Group Leaders at the Committee’s monthly meeting, is a great opportunity for young lawyers to learn more about recent developments in the field.

Our meetings regularly include a ‘My Job’ discussion, where industry-leading professionals are invited to present on their career and the path that lead them to their position. The committee also regularly provides information to publications and members have the opportunity to contribute to submissions to governments/government departments in relation to law reform and policy relating to communications, entertainment and technology law. thebrief.muls.org | 9

Joining the committee is a great way to meet, engage and network with like-minded individuals.

It also gives you the opportunity to contribute and participate in wellbeing activities, which is an issue of particular importance to the CET Executive.

Reform and future of Privacy Laws Ash: A regular area of discussion for the committee is privacy, data breaches and cyber security. 2018 in particular was a big year for developments in privacy law, and consequently become a robust area of discussion for the committee. From February 2018, amendments to the Australian Privacy Act 1988 took effect and we saw the introduction to a mandatory notification procedure for data breaches. Previously, there were no requirements to notify individuals affected by a data breach. To get into the detail a bit, the scheme applies in relation to ‘eligible data breaches’ being incidents where either: •

there is unauthorised access to, or unauthorised disclosure of, information and a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the information relates; or

•

information is lost in circumstances where such unauthorised access, disclosure and serious harm is likely to occur.

So what exactly does that mean? In non-legal speak, only incidents that are likely to result in some serious harm to individuals affected need to be notified. Health services and finance industries so far have seen the largest numbers of breach notifications so far. The reasons for this are not clear, and this is a theme we have discussed in our committee meetings: are there just more breaches in these areas? Or is it because there is now an increased awareness of data security in industries that deal with sensitive health information

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or valuable personal information? At the moment, we can still only speculate.

There is no general legal right to privacy in Australian law, and this is something that lawyers continually grapple with considering that such a cause of action has evolved in counties like Canada, New Zealand, the United Kingdom and the United States. Consequently, this has meant that that our understanding of our rights has become a bit distorted. In Australia, persons whose privacy has been infringed are left either without a remedy or are forced drag their grievance into a claim for breach of confidence or defamation. The fact that we seem to be at odds with much of the rest of the world is having a fundamental right to privacy is somewhat perplexing, and in some cases, unsatisfactory.

This area in particular is one that the Committee has made significant contributions to in the past.

Way back in the dark ages of 2013, Jess and I both contributed to the Committee’s submission to the parliament’s issues paper ‘Serious Invasions of Privacy in the Digital Age’. This was of particular interest to me as it was the area that my honours thesis at the time was focusing on. Being an active member of the committee and getting to contribute to a substantive submission to parliament meant feeling as though you are playing a role (albeit, speculative) in the development of the law in Australia. This was fun and a fundamentally useful aspect of being involved in the Committee. Now as a practicing intellectual property law and privacy lawyer, I have remained interested in this particular area and its development ever since.

From a Committee perspective, we are always looking at opportunities to contribute to law reform including in the privacy space – whether it be as part of the Consumer Data Right debate, the Assistance and Access Bill, Ethical Frameworks into Artificial Intelligence, or even the privacy implications as part of the National Transport’s Autonomous Vehicles submissions.

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Social Justice Corner

Diversity in the

Legal Profession Kevin Chen

T

he law exists as a powerful vehicle shaped by the shifting values of society, and it is the lawyer that assumes the position of the driver. Within a pluralistic community wrought with diverging perspectives on all facets of life, the legal profession now bears an increased onus to promote diversity and inclusion in the practice of law, for the authority of law is conditional upon its legitimacy as seen in the public eye. Unfortunately, stringent law enforcement can only do so much to aid this movement, for example by prohibiting discrimination in the workplace. An easy workaround of such regulations, are to simply hire in a uniform way, such that the room for discrimination is minimised. Positive duties require positive assistance from their principle stakeholders, namely law firms.

Kenji Yoshino of the Centre for Diversity, Inclusion, and Belonging, accompanied by the Centre for Talent Innovation, identifies an ‘Advocate’ model of engagement with diversity, whereby businesses not only promote diversity and inclusion internally, but also strive to influence their local climates. Such influence may be achieved by participating in pride events or supporting activists. This type of advocacy creates a shared competitive culture for law firms to maintain their public image by celebrating diversity.

Baker McKenzie Partner Lerisha Naidu comments on the increased potential for female leadership in the South African legal sphere, and asserts that: ‘Quite simply the sustainability of the large law firm model relies on D&I (diversity and inclusion) being central to its strategy’

It is without doubt that law firms are becoming increasingly committed to promoting diversity.

However, to assume that these positive strides are driven purely by competition would be incorrect.

The rhetoric that diversity within a workplace breeds innovative legal solutions is gradually in the works to manifest as reality.

A vibrant work culture which encourages people of diverse backgrounds, with different experiences to express their ideas, prevents stagnancy in legal solutions, inspiring the law to adapt to the fluid nature of pluralist societies. Simply put, less homogeneity within a workplace, results in the generation of creative solutions and perhaps even, a better product for consumers and clients. The value of this is seen in the Law Council of Australia’s Diversity Policy, which provides a framework to encourage diversity across the organisation and invites other organisations to adopt their ideas to best suit the individual character of each organisation.

This meaningful shift forward for law firms, provides aspiring law students from diverse backgrounds the opportunities to envision themselves as complimentary additions to those organisations. Rather than simply having to ‘match’ the culture of companies, the idea that aspiring lawyers can compliment firms by adding something fresh and new is instead endorsed.

Although the legal profession has slowly steered away from hiring strictly based on academic merit and qualification, there is still much to be done to effectively represent an emerging liberal generation that welcomes diversity and inclusion. It will be interesting to see how organisations continue to adapt in this sphere of social justice, to ultimately make the rhetoric of diversity in the legal profession into a reality.

However, in saying that, Naidu realises the dangerous implications of a competitive landscape, which may promote quantitative achievement of such goals, rather than genuine meaningful progress.

Hence, the pressing question to be pondered is: why should law firms prioritise diversity and inclusion, other than to stay competitive in a landscape so driven by public status?

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Devil’s Advccate

Decrypting the Debate:

Is our Encrypted Data still Protected?

For

 Angela Dela Cruz

T

he idea of granting government bodies access to encrypted data has been highly contentious within the media, politics and society. The introduction of lawful access to encrypted data has raised concerns about the safety and security of our personal data online.

However, the debate surrounding our online data is also a question of security in our physical realm, as terrorists and criminals continue to exploit encrypted data systems to cause harm within our society. In 2018, legislation was introduced allowing intelligence agencies to request telecommunication companies to assist authorised persons to access encrypted data.

Is access to encrypted data a breach of our right to privacy? Is our sense of security online at risk due to the creation of systemic weaknesses or ‘backdoors’?

How do we respond to the increasing tensions which arise between our right to freedom and protection of society in this modern world?

Encrypted data plays a key role in the safety of our digital economy and cyberspace. It allows us to safely access our bank accounts and online

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transactions without fear of personal information being exposed. However, encryption has also been exploited by terrorists and criminals to facilitate and conceal illegal and dangerous activities.

Without access to encrypted data, counterterrorism and criminal investigations will continue to be hindered from accessing key evidence.

Access to encrypted data has been projected to continue to increase in significance as 95% of the Australian Security Intelligence Organisation’s (ASIO) most dangerous counter-terrorism targets use encrypted communications. Thus, in order for intelligence agencies such as ASIO to accurately surveil dangerous counter-terrorist targets, access to encrypted data such as messages and online activities should be lawfully accessible.

A key concern with the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘the Act’) is regarding its potential breach of our ‘fundamental’ right to privacy. However, authorising government access to confidential information is not a new principle. It is an

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established principle that privacy is not absolute and that it is valid to interfere with private information, granted it is achieved lawfully and non-arbritrially.

In a similar manner to search warrants authorised by the Attorney-General, the Act, serves to allow access to private information for the purposes of law enforcement and public security. The operation of this Act does not exceed current privacy laws, rather, merely applies existing principles to current digital developments - ensuring that our legal system continues to reflect and protect our online environment. This Act seeks to resolve a recurring issue which will only continue to develop if not addressed. Law enforcement agencies cannot keep up with current technological developments and are being thwarted by a lack of adequate mechanisms and means to address the roadblock of encryption.

Therefore, the authorisation of intelligence agencies to access encrypted data can be considered as a reasonable imposition into our right to privacy, as it is not without warrant nor justification.

Opposition to this Act have decried against the creation of a ‘backdoor’ system, claiming that this Act will serve to weaken cyber security as the creation of systemic weaknesses are mandated.

Against

 Simone Alexander

W

ith the rise of cyber attacks

and domestic and international terrorism, the Australian Government has responded with its legislative power, attempting to enable security agencies access to user information and data protected by end-to-end encryption.

The introduction of government backdoors that enable instant decryption has been the largest and most considerable argument in opposition to the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘the Act’). Backdoors are a means to access data from applications or operating systems through

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However, this is not the case. This Act is not against the encryption and protection of personal data and will not pose a threat to the existence of systems designed to encrypt and protect information. Under this Act, the security of encrypted data continues to be upheld as companies who previously did not have the capability to decrypt something within their system would not be required to build a capability to do so. Section 317ZG of the Act provides an explicit prohibition against the creation of systemic weaknesses and ensures that companies continue to strengthen their systems against existing flaws.

More so, this section introduces an independent assessment panel to assist companies review any access requests made by intelligence agencies to determine whether or not a ‘backdoor’ system would be created.

Overall, despite the media and political outcries against the ‘anti-encryption’ act , the Telecommunications Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 is not a jeopardy to online privacy and security.

Citizens and technology companies can and will continue to function as normal. If anything, this Act serves to provide greater protection and privacy.

bypassing the encryption systems undetected.

Allowing this Act will force companies to weaken the integrity of their products for the benefit of law enforcement and ultimately jeopardize the digital security of Australian citizens. Development of encryption breaking technologies themselves create additional opportunities and various channels for hackers to exploit these systems. This becomes especially problematic as these backdoors lack the guarantee of security and a method to be controlled.

As a major technological company, Apple, has also commented on the matter, defending encryption as an essential element in protecting citizens against cyber and terror attacks. United Nations Special

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Rappoteur, Jor Cannataci, notes that ‘[anti-encryption] does not justify a lack of judicial oversight, or independent monitoring, or the extremely troubling lack of transparency’.

Individuals rely on cryptography for security in many respects of their life from online banking to personal communications. Therefore, the use of mechanisms used to intercept data without knowledge, heavily infringes upon the individual rights and freedoms.

The Parliamentary Joint Committee on Human Rights in Report 11 of 2018, voiced concern of the right to freedom of expression being limited to favour Australia’s foreign relations and economic

well-being. Privacy advocates have noted Australia’s intelligence alliance between foreign powers of The Five Eyes which includes the United States, the United Kingdom, Canada, and New Zealand, engender global ramifications on individual rights. These anti-encryption mechanisms allows other foreign players greater access into personal data, further clouding the aspect of human rights.

The Australian Information Industry Association Technology which represent companies including, Apple, IBM, Cisco, Adobe and Google, have voiced their concern with the operation of the legislation as a whole. The adverse impact of employing this Act upon Australia’s information industry and subsequently the economy has been widely agreed to be a damaging aspect of these laws.

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With many multinational members considering retracting from Australia’s technological industry resulting from the legislative obligations, it creates concern for the stability of the information and technological sector’s future. Undesirable and hostile, the technology environment is expected to feel severe repercussive consequences in the global export business. The international community’s perception of products and services with undermined integrity from information companies drive consumers and investors further away from the Australian market.

With the backdoor encryptions as mandatory, failure to comply could see companies heavily financially penalised, further damaging the industry’s reputation and growth.

In essence, these anti-encryption laws manufacture greater harm than their intended pupose to safeguard aginst cyber threats and terrorism. This Act marks a movement of necessary fear and calls to question the justification for sacrifices to national security, individual freedoms and stability of the technological industry.

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Facial Recognition Technology: The End of Privacy?

Ellen Brown

BRIEFLY: >> Facial recognition has the potential to be incredibly invasive. >> It can be misused, is vulnerable to security threats, may result in false positives, can lead to data being misunderstood. >> Needs reform to proactively address the potential for harm.

A

lthough facial recognition technology was once a far-fetched idea only fathomable in science-fiction movies, it is now increasingly being used in our everyday lives. From unlocking our iPhones and automatically tagging friends in Facebook photos, to monitoring crowds at concerts and sport stadiums, to identifying or verifying people at airports and train stations. Such technology uses algorithms and stored records (such as drivers’ licenses, passports, security cameras and social media accounts) to automatically analyse and detect physical features and behavioural characteristics.

Recent Legislative Proposals Notably, the Australian Government has recently Ed.3 2019

introduced the Identity-Matching Services Bill 2018 and the Australian Passports Amendment (IdentityMatching Services) Bill 2018. These bills will enable the Government to collect, use or share facial images and related identity information in relation to a broad range of activities including preventing identity crime, general law enforcement, national security, protective security, community safety, road safety and identity verification. However, many critics such as the Australian Privacy Foundation, Future Wise and the Australian Lawyers for Human Rights argue that the benefits of these bills, if enacted, will be a disproportionate invasion of our privacy rights, and if we continue to trade privacy for convenience ‘we may find ourselves unwittingly walking to the beat of Big Brother’s drum’. thebrief.muls.org | 15

Ambitious Objectives The Explanatory Memoranda relating to these bills asserts that the use of facial recognition technology will prevent crime, aid criminal investigations and enhance security by providing police officers and authorities with the identity and real time whereabouts of known or possible suspects, and even assist in finding missing persons.

However, except through assertion, these bills do not explain how it will achieve their objectives, and they ultimately fail to establish that the proposed measures are a proportionate and legitimate invasion of our privacy. It is also difficult to see how facial recognition technology will, for instance, prevent identity crime as a significant amount of this crime occurs as a result of security breaches, human error, or through unlawful activities unrelated to biometric data. It is also not clear how facial recognition technology will uphold community safety, as identifying suspicious behaviour is not necessarily relevant to prevention unless, for example, authorities are already on standby to apprehend the suspect once identified at the particular location.

As a result, in order for these bills to be considered a legitimate invasion of our privacy, specific and measurable objectives that are periodically reviewed must be implemented.

Even if these bills do achieve their current objectives (that is, preventing identity crime, general 16 | The Brief

law enforcement, national security, protective security, community safety, road safety and identity verification), their terms are so widely defined that almost all activities and purposes will fall within their ambit. It is difficult to see how, for instance, road safety such as catching individuals who avoid traffic fines, will justify tracking an individual’s every move whilst in public. For this reason, these bills should also be limited to a narrower range of serious offences that actually pose an imminent risk to public safety.

Reasons for Concern In relation to facial recognition technology itself, such technology has the potential for error or the ability to be deceived through the use of disguises and plastic surgery. The United States’ Federal Bureau of Investigation, for example, incorrectly identified individuals almost 15% of the time, and due to a limited set of data and poor training, it was inherently biased towards African-Americans.

As a result, facial recognition technology must be transparent, reliable and accurate, and its algorithms must be based on a diverse set of training data.

In addition, facial recognition technology can be vulnerable to security threats and abuse. Individuals can hack into databases and use personal information to blackmail or commit identity fraud with the use of 3D printing or even simple animated pictures. For this reason, facial recognition technology must also Ed.3 2019

“... right to privacy must be balanced against the collective right to safety and security.” ensure that it has suitable encryption and security measures in place.

Concerns are also raised in relation to information being used for secondary purposes, which can result in data being misunderstood, and the aggregation of such data may disclose facts about individuals that were not otherwise obvious when the isolated information was originally collected. These bills, if enacted, will result in unacceptable scope creep as individuals who consented to providing their photograph for the purpose of obtaining a passport or license did not consent to their image being extracted for the purposes proposed by these bills.

Breeding Conformity Although it is argued that facial recognition technology can be less intrusive than other means of collecting biometric data (such as DNA and fingerprints) as it is conducted from a distance and seamlessly integrated with extensive existing surveillance and databases, facial recognition technology has the potential to be more intrusive.

This is because facial recognition technology enables individuals to be tracked and their personal details to be collected without their informed consent or knowledge. Although obtaining prior specific, informed and affirmative consent from individuals may not feasible as we will not be able to ‘opt-out’ of this system, the proposals put forward in these bills should Ed.3 2019

be subject to full public consultation and at the very least receive public consent.

Finally, constant surveillance, even in a public space, can result in harm being caused, as a person does not necessarily make everything that he or she does public just because they are in a public space.

Individuals may alter their behaviour through selfcensorship, and this can inhibit their creativity, development, and freedom of speech. It can also generate feelings of discomfort and angst, and prevent individuals from making a truly free choice in life. As these bills will affect our autonomy and privacy, it is imperative that they strike a legitimate and proportionate balance between an individual’s right to privacy and the collective right to safety and security.

A Cautionary Tale Although the Identity-Matching Services Bill 2018 and the Australian Passports Amendment (IdentityMatching Services) Bill 2018 will provide some oversight in relation to facial recognition technology, as well as a regulatory and legal framework governing its use, there is good reason to be cautious and skeptical about this recent legislative proposal.

The algorithms used by the facial recognition technology must be transparent, reliable and accurate.

The bills should also be limited to a narrower range of serious offences that actually pose an imminent risk to public safety, and they must provide evidence as to how their objectives will be achieved. These objectives and outcomes should then be periodically reviewed.

The Government should also consider enlisting a more substantive information governance structure such as strengthening the Office of the Australian Information Commissioner or introducing a Biometrics Commissioner (similar to the one established in the United Kingdom) to monitor and investigate relevant activities, evaluate risks, and develop a code of conduct.

Unless legislative and regulatory reform proactively and specifically addresses privacy concerns that arise from the use, collection and sharing of our biometric data, it is likely that the benefits of facial recognition technology will be outweighed by the harm that is caused to our privacy.

This right to privacy must be balanced against the collective right to safety and security. thebrief.muls.org | 17

BRIEFLY: >> Impact of national security measures on standards of journalistic freedom. >> Rising concern for press freedom following the AFP raids. >> The need to balance tensions between national security and public interest.

Is Journalistic Freedom a Lost Ideal?

A

Celine Nalbandian

ustralia’s media landscape has long been subject to tensions deriving from investigative journalism. In particular the challenge of balancing the public interest with matters of national security. Such tensions have been exacerbated by the current legislative framework, characterised by the rapid expansion of Australia’s national security laws over the last two decades. It is crucial that society considers the drastic impact such developments have on standards of journalistic freedom. It goes without saying, that in order to best fulfil their role, journalists and the media should be able to report without fear.

The tangible threat to press freedom recently manifested when the Australian Federal Police (AFP) raided the home of News Corporation Australia journalist, Annika Smethurst, and the offices of the Australian Broadcasting Corporation (ABC). Over a year ago, Smethurst published a story disclosing a plan for the Australian Signals Directorate to spy on Australian citizens without a warrant. Meanwhile, the ABC released a series of stories in 2017 which revealed that Australian special forces in Afghanistan allegedly killed civilians and covered it up. Given the extent of public outrage, the AFP statement released on 5 June 2019, chose to reinforce the law enforcement agency’s responsibility to ‘investigate breaches of Commonwealth criminal law’. This is not the first time the AFP has conducted a raid on a prominent broadcaster; in 2014 the Seven Network

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was raided in relation to allegations that Schapelle Corby had sold her story to the network. The most recent raids, justified as matters of ‘national security,’ have shed light on Australia’s treatment of the press and since ignited debate about the adequacy of press freedoms in Australia. ABC Managing Director David Anderson expressed that ‘this is a serious development and raises legitimate concerns over freedom of the press and proper public scrutiny of national security and defence matters’. It has become the widespread opinion among many media professionals, academics and members of the public that there be greater protections towards journalists and whistle-blowers moving forward.

It is a common sentiment that like freedom of religion and the right to education, freedom of the press is a fundamental tenet of any democracy.

However, in Australia, this has not typically been the case. Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR), of which Article 19 protects freedom of expression and extends this to the media. However, Australia has not gone on to implement these rights in its own Constitution. Hence, there is no national charter of human rights or an explicit right to freedom of speech in the Australian Constitution. Instead, as per the decision of the High Court in Lange v ABC (1997) 189 CLR 520, there is a recognised implied freedom of political communication – the effect of which is limited. This lack of legislative protection operates in stark contrast to other Western democracies where

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freedom of speech and freedom of According to Larina Alick, Editorial “It is a common press is protected. For example, Counsel at Nine Publishing and sentiment that like it is safeguarded in the US First Australian Community Media, freedom of religion and Amendment and to some extent the history of defamation suits the right to education, in Article 10 of the UK Human in Australia reveals a tendency freedom of the press Rights Act 1998. This raises the to favour the plaintiff. This has is a fundamental tenet meant that journalists and media question, does the absence of express measures protecting press organisations are very vulnerable of any democracy. freedom have implications on However, in Australia, to incurring high financial journalistic endeavour? penalties. While they can seek this has not typically It seems the answer is yes. to rely on defences, including been the case.”

Without adequate provisions truth and honest opinion, it can protecting press freedom there be difficult to establish truth in is an indelible threat to the future of public interest cases where the source is anonymous. Similarly, the journalism in Australia. This has been heightened defence of qualified privilege, invoked to protect further by the continually expanding set of national publications of public interest where a publisher security laws. Since the September 11 attacks in acted reasonably is difficult to prove due to the 2001, the Federal Parliament has been committed to unattainable standard of proof. developing legislation focused on counterterrorism While it seems a dire time to be a journalist, and surveillance, enacting over 70 new statutes. The discussion for change is on the agenda. For example, often-overlooked aspect of such prolific law making the Defamation Law Reform has since finished is the impact on media freedoms. Recent laws have receiving submissions from media institutions, made it increasingly difficult for journalists to protect academics and interest groups, many of whom their sources and publish unauthorised information, are calling for a move towards greater freedom in turn fostering a guise of government secrecy. of expression. It is also likely that the Morrison Central to investigative journalism is source government will announce a parliamentary inquiry confidentiality, protected under s 126H of the into press freedom. What is known, is that the raids Evidence Amendment (Journalists’ Privilege) Act 2011 on the home of Smethurst and the ABC offices have (Cth). However, the exception under s 126H(2) created a climate of uncertainty for journalists and limits the necessary protection of journalist’s the media. It is becoming increasingly obvious that sources where it is in the public interest to disclose the legislative framework premised on improving the identity of any informants. Furthermore, security often comes at the expense of press freedom. under s 35P(1) of the Australian Security Intelligence The need to balance tensions between national Organisation Act 1979 (Cth) a person who reveals security and public interest remains a matter of prime or publishes material relating to a ‘special importance – the law is no stranger to the challenges intelligence operation’ will have committed an of representing the interests of various parties. offence punishable by five years’ imprisonment.

On a similar note, s 42 of the Australian Border Force Act 2015 (Cth) makes it a criminal offence to leak or record ‘protected information.’ A person can be jailed for up to two years. In light of these legislative provisions, it is undeniable that there is a real and pervasive threat of going to jail, making it harder for journalists to do their job and for whistle-blowers to disclose critical information.

The operation of the current defamation framework is yet another obstacle for journalists.

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Surveillance

Capitalism: The Lucrative Trade in Personal Data, and its Implications for Our Privacy Hannah Duque

BRIEFLY: >> Surveillance Capitalism: obtaining information from every aspect of consumer’s lives so that companies are able to sell predictions and guarantees of consumer behaviour. >> Australians are not afforded an absolute right to privacy, nor is there a tort of invasion of privacy. The current laws are inadequate in addressing surveillance capitalism. >> The approach to privacy taken in other jurisdictions provides guidance about improving privacy regulation in Australia. Also see: recommendations made by the ACCC in its recent ‘Digital Platforms Inquiry’ report.

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he collection of personal data for commercial gain is becoming increasingly ubiquitous in the digital age. Every aspect of human experience is ‘claimed as free raw material for production and sales’ to create a new market for behavioural ‘prediction, modification, and control’. This is what Harvard Business School Professor, Shoshana Zuboff, describes as ‘surveillance capitalism'.

What is Surveillance Capitalism?

‘Surveillance capitalism’ involves the collection of information from all aspects of our lives such as our online browsing, communications, voice commands, and where we walk our dog. This information is translated into behavioural data by certain online services such as Google and Facebook and then fed into artificial intelligence technologies to generate predictions on how we will behave in the future. These predictions are then sold on to other companies.

It was through Google’s invention of targeted advertising that the commodification of personal data first emerged. Google took advantage of its Ed.3 2019

exclusive access to ‘user data logs’ and combined it with its already advanced analytical technologies to generate predictions of user behaviour on the basis of the data collected. This provided the foundation for a new market of targeted advertising based on the predictions of future human behaviour. However, targeted advertising was only the beginning.

This new market revealed that serving the needs of consumers was less profitable, and therefore less important, than selling predictions of their behaviour. As noted by Greenwood et al, the ‘digital breadcrumbs’ left behind by consumers provide clues as to who they are, what they do, and what they want. This makes personal data incredibly valuable.

Ultimately, it is clear that most of the predictive data is obtained by intervening into all aspects of consumers’ lives shared online. Data scientists argue that rather than just monitoring consumers’ activities, the surveillance has shifted to actuation. In other words, the goal is not just to know consumer behaviour, but also to modify it so that companies can sell more than just predictions, and rather, guarantees of behaviour. This has been described as a system designed to evade individual awareness, undermine human agency and eliminate decisionEd.3 2019

making rights. It is clear that these concerns warrant close attention to current data practices, which can generally be described as vague and problematic.

With more than 2.5 million people opting out of the My Health Record, it is clear that Australians are opposed to intrusions on their privacy and want a say as to how their data is collected, stored and used. However, this example represents a departure from the general lack of understanding of data management within society. In this case, citizens were provided with information and clear decision-making power to opt out of the scheme.

In comparison, the ability of consumers to exercise control over how their data is managed is often hindered by the length and complexity of online privacy policies and terms of service.

Yet, even armed with the knowledge that privacy risks are increasing, consumers continue to access Google, Facebook or Twitter and readily hand over their data – and it makes sense. The internet is almost essential to our everyday lives. We depend on it, and surveillance capitalism feeds on that dependency. The conflict between wanting to maintain our privacy whilst still being able to use online services causes us to resort to skepticism thebrief.muls.org | 21

or defend our continued use by arguing that we have nothing to hide in the first place. In this way, surveillance capitalism forces us to make decisions that we should not have to, and often cannot make, about whether we should use online services that are collecting our data for commercial gain.

So, What Can We Do About It? The reality is, the current laws are not purpose-built to deal with the effects of surveillance capitalism. Privacy is not an absolute right in Australia, nor do we have a tort of invasion of privacy. Even though regulations and laws surrounding privacy and data do exist, there is no clear standard for access to consumer data. This has allowed major data breaches to occur, and the Facebook-Cambridge Analytica scandal is one of many examples. In 2014 Cambridge Analytica, a consulting firm run by one of Trump’s main political advisors, used personal information taken from consumers’ Facebook profiles without their consent.

This information was then used to generate data sets that allowed the company to target US voters with personalised political advertisements.

For many years, companies such as Google and Facebook have used the rhetoric of ‘innovation’ as a means of escaping the rule of law, arguing that any regulation would stifle proper innovation. But as data breaches continue to occur, it is becoming clearer that significant reforms are needed. It is important that consumers are able to make informed decisions about the use of their data and to hold online services, engaging in questionable data practices, to account.

Currently, there is a lack of consumer protection and effective deterrence under data collection laws and this has ‘enabled problematic data practices and a lack of transparency and control’.

Steps Forward towards Greater Protection On 24 March 2019, the Australian Competition and Consumer Commission (‘ACCC’) released the ‘Digital Platforms Inquiry’ report (‘Report’). This Report details the results of an 18-month inquiry and recommends areas for improvement and reform, aimed at enhancing the protection of Australians’ 22 | The Brief

online privacy. These include increased penalties for serious or repeated breaches, new powers to issue infringement notice for the Office of the Australian Information Commissioner, and a new requirement for online platforms to stop using, or disclosing personal information upon request.

Other major recommendations include the implementation of a new binding Privacy Code for digital platforms, increased penalties for privacy breaches, and further legislative changes to strengthen privacy regulations in Australia, including the introduction of a statutory tort for serious invasions of privacy, as previously recommended by the Australian Law Reform Commission. Notably, the Report also emphasised the importance of not only the need for greater transparency, but also that consumers must be able to ‘exercise real choice and meaningful control’ over which services they use and how their data is collected.

“It is important that consumers are able to make informed decisions about the use of their data and to hold online services, engaging in questionable data practices, to account.”

Guidance from Other Jurisdictions The approaches taken in other jurisdictions can also provide guidance. In May 2018, the European Union passed the General Data Protection Regulation which provides consumers with greater power to give informed consent about how their personal data is used. A number of companies including Facebook and Marriott International have already been fined under the Regulation for data breaches. Similarly, the forthcoming California Consumer Privacy Act of 2018 due to take effect on 1 January 2020, will allow consumers to control how their data is collected, used and sold such as by requesting that personal information be deleted. It will also provide consumers with a private right of action to recover damages or injunctive relief where data breaches occur.

It is clear that our current laws are inadequate in addressing surveillance capitalism, and this has negative implications for the privacy and autonomy of consumers. Although the effects of recent recommendations and proposed regulations remain to be seen, what we do know is that while surveillance capitalists are powerful, they are not immune from regulation.

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Australia’s Metadata Retention Laws Seriously Violate our Privacy

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Beth Jones

n 2015, the Commonwealth Government passed the Telecommunications Interception Access Data Retention Amendment Act, which legalised one of the most invasive data retention schemes in the world. This law requires that telecommunications companies, such as Telstra and Optus, store all the metadata of their users for a period of two years. The Australian public should be concerned in light of the recent serious breaches of this legislation by the ACT police, and the Federal Government’s push to increase the amount of time telecommunications companies are required to retain metadata for certain complex investigations.

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BRIEFLY: >> Australia’s metadata retention scheme manifestly fails to protect the privacy of citizens. >> The scheme has been breached by various policing agencies without consequence. >> The scheme contains loopholes allowing agencies to bypass protective measures.

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What is metadata?

Metadata is not the content of a communication, but rather the data which is produced by the machine, for example your phone, during the process it undertakes in order to make the communication possible. Therefore, metadata is data which originates from and is produced by the machine. For example, when you send a text message, what you have written is the content of that message.

However, the technical process that your phone undertakes in order to send and deliver that message is called metadata.

This metadata includes any personal information provided to your telephone service provider, such as names, address, phone numbers, and all the personal information of the receiver of your message.

Metadata also consists of the date, time, type and duration of the communication, as well as the physical or geographical location from which the communication was made. So whilst telecommunications companies are not required to store the content of a communication, they are required to store essentially everything else about it. This metadata is comprised of significant personal information which has the potential to cause serious harm to individuals if mishandled by those who have access to it.

Who can access metadata?

To assuage public concerns, access to metadata was originally restricted to 22 law enforcement agencies, such as the Australian Federal Police (AFP), Australian Security Intelligence Organisation (ASIO) and state police forces. In actuality, many more agencies have accessed metadata and it is currently unclear precisely how many agencies are now able to access Australian’s private information. In 2016, more than 60

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unlisted agencies lawfully accessed stored metadata, including Racing and Wagering Western Australia, the ACT Revenue Office and Bankstown City Council. These agencies were able to work around the legislation and access the metadata despite not being one of the listed 22 agencies, because they are not required to apply for a warrant if they wish to access only metadata. Other agencies who do not have access under the metadata retention laws have used mechanisms such as section 20 of the Fair Trading Act 1987 (NSW) to gain access to stored metadata. In reality it is unclear who actually has access to our stored metadata.

Does the legislation effectively protect our privacy?

The short answer is no. The general consensus is that the law is manifestly inadequate at both protecting our privacy and enforcing appropriate punishments for breaches of privacy. Optus recently revealed that, in 2015, the requirements of the new law forced it to store sensitive and private metadata of customers on old, unencrypted systems. What is most concerning is that the Government granted Optus an exception from the requirement that the data be encrypted, allowing private data of Australian citizens to be stored in an unsafe manner whilst being open to security breaches. The ACT Police have recently self-disclosed, only after an investigation by the Commonwealth Ombudsman, that they have unlawfully accessed metadata 3,365 times. The unlawful access occurred from March to October of 2015, but has only just now been uncovered and acknowledged. It is unclear whether the ACT Police will receive any sanctions for their repeated breaches of the law.

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It was also discovered that WA police obtained invalid warrants and unlawfully accessed the metadata of two journalists.

Law enforcement agencies are required to apply for a warrant if they wish to access a journalist’s metadata. Journalists are not informed when police apply for a warrant, in fact disclosing information about the existence of a warrant is an offence which carries a penalty of up to two years in jail.

The only protection afforded to journalists is a public interest advocate who may make submissions containing any relevant information about the issuing or refusing of the warrant to the decision maker. The decision maker will vary depending on the agency requesting the warrant. Most agencies will apply to an authority appointed by the government, normally a judge, magistrate or member of the administrative appeals tribunal. The WA Police Commissioner confirmed that there had been no consequences and no penalties applied to any officer for their unlawful access to metadata.

The legislation is undeniably inadequate at protecting Australian’s privacy and sets a dangerous precedent by not imposing sanctions for breaches. Without sanctions and penalties what incentive is there for the police and other enforcement agencies to comply with the legislation?

Should we be concerned?

There are definitely multiple causes for concern. Although journalists are afforded some protection, their sources receive none, which is a major loophole in the warrant scheme designed to protect journalists and their sources, noted by the Commonwealth Ombudsman. Police are not required to obtain a warrant to confirm whether or not a person is a source for a journalist. Therefore, police can access the metadata of a person they suspect to be a

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source to a journalist and confirm whether they have contacted a journalist without needing to apply for a warrant. So the metadata legislation provides no protection for whistle-blowers, who are an essential component of our democracy.

Despite not containing the content of the communication, when put through computers which identify patterns, similar to those used by the police, metadata can provide more information than the content itself. The lack of a specific definition of ‘metadata’ in the Telecommunications Interception Access Data Retention Amendment Act opens the door for an expansion of the term. If metadata was expanded to include our web browsing history for instance, then we would be in a state of active content surveillance, which is in essence a police state. It was acknowledged by Inspector Gavan Segrave, from the Victorian Police, that they would like to have access to the web browsing history of all Australians.

It is also concerning that once police have accessed metadata, that information will be kept on their database forever, even if it is never used in a prosecution or even been used to charge someone. This is both a security risk and an unwarranted violation of our privacy. Although the metadata retention scheme does provide law enforcement agencies with easier means to find and convict criminals, it poses a great risk to all Australians and this invasion of privacy should not be taken lightly. The metadata retention legislation is framed from a national security perspective. We are told that by exchanging our right to privacy we receive crucial and invaluable protection. However, the metadata retention scheme has laid down the groundwork not for protection but for mass surveillance, which is extremely concerning in our increasingly digitalised world.

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BRIEFLY: >> Pay secrecy clauses in employment contracts restrict the power of employees and unions. >> Pay secrecy clauses predominately affect women who have lesser individual bargaining power. >> Australia should make pay secrecy clauses in employment contracts legally unenforceable similar to the UK’s Equality Act, without banning these clauses outright.

Shush, It’s a Secret!

Nick Haughain

Pay Secrecy Clauses in Employment Contracts

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n the workplace there is a fundamental power imbalance between the employee and the employer. When employees are legally restricted from disclosing their pay to their co-workers by pay secrecy clauses, their bargaining power is significantly reduced and they remain economically disadvantaged.

Common law employment contracts in Australia can include confidentiality clauses or pay secrecy clauses which prevent employees from openly discussing their pay with colleagues. Women are significantly disadvantaged by such clauses. They often undervalue their market rate as an employee during pay negotiations. In the public sector, where pay levels are publicly transparent and collectively bargained through enterprise bargaining agreements (EBAs), the gender pay gap is currently 12.2%.

However, in the private sector, which features a much larger number of individual pay deals, the figure stands at 21.3%.

Pay secrecy clauses establish information asymmetry between the employer and the employee and prevent employees from being on an equal level during pay negotiations. By using pay secrecy clauses, Australian employers can undermine collective bargaining by preventing employees from referring to other employees’ salaries in salary negotiations. Trade unions are also restricted from organising a response to pay discrimination cases as 26 | The Brief

their members can be legally penalised for breaching their pay secrecy clauses.

Both the United Kingdom and the United States have banned pay secrecy clauses or made them, in most cases, legally unenforceable. Section 77 of the Equality Act 2010 (UK) does not criminalise the inclusion of pay secrecy clauses in employment contracts but makes them legally unenforceable when the employer is attempting to stop or restrict employees from making a ‘relevant pay disclosure’.

Relevant pay disclosures occur when there is a direct link between pay and one of the protected characteristics under UK discrimination law.

Examples of protected characteristics are gender, age, disability status or sexual orientation. In my opinion, Section 77 of the Equality Act is the ideal model for any amendments to Australia’s Fair Work Act as it allow industries with genuine, commercially sensitive concerns to still enforce pay secrecy clauses but prevents employers from using them to discriminate and disempower most employees. To a more limited extent, section 7 of the National Labor Relations Act 1935 29 USC limits pay secrecy clauses by protecting workers in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection’. Its practical effectiveness, however, is limited, due to the Act’s narrow coverage (excluding supervisors and managers), weak civil penalties prescribed by the Act, and a lack of enforcement by Ed.3 2019

the US federal labour regulator, the National Labor Relations Board.

The Lily Ledbetter Fair Pay Act of 2009 (US) came into effect in January 2009 in the United States. The Act establishes a 180-day statute of limitations for pay equity lawsuits, which resets each time a pay discriminatory paycheck is received.

Production supervisor Lily Ledbetter was paid significantly less than her male counterparts at a Goodyear factory in Jacksonville, Alabama. She was only informed of this pay discrimination through an anonymous note given to her. As Ledbetter and her colleagues were subject to pay secrecy clauses in their individual employment contracts, the colleague who had notified her could have faced legal penalties from their employer. However, despite these legislative advances in the United States, pay secrecy clauses remain widespread in the American workforce.

A 2003 study entitled ‘Nice Girls Don’t Ask’ by the Harvard School of Business found that 57% of men negotiated their pay compared to only 7% of women.

Women, during negotiations, were also found to have a less combative, more accommodating negotiation style which leads to significantly lower pay and lower performance ratings compared to men. Economist Marlene Kim of the University of California stated that ‘pay secrecy laws appear to help women determine if they are underpaid compared to men and may be useful to reduce the gender pay gap, especially among those with a college (or higher) education’.

Pay secrecy clauses are particularly widespread in the financial services industry, with the Finance Sector Union (the FSU) stating that 20% of individual employment contracts at the Commonwealth Bank, ANZ and Westpac contain pay secrecy clauses. An excerpt of a pay secrecy clause of a Commonwealth Bank employment contract is contained below and was provided to the Senate Committee on Education and Employment by the FSU when the Committee examined pay secrecy clauses in 2015: ‘the terms and conditions of your employment (including remuneration arrangements) are strictly confidential. It is a condition of your employment that you do not discuss these matters with any other person other than your legal or financial advisers or immediate family members’.

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Greens Senator Larrisa Waters’ Fair Work Amendment (Gender Pay Gap) Bill 2015 proposed a prohibition on pay secrecy clauses in Australian employment contracts. In the Senate Standing Committee on Education and Employment’s hearings into the bill, the Law Council of Australia recommended that Section 33B of the Fair Work Act be amended to ‘(a) prohibits an employee from disclosing to other employees of the employer, an industrial association or professional adviser, the amount of, or information about, the employee's pay or earnings’. The Law Council’s position was that any amendments targeting pay secrecy clauses should clarify the existing duties that employers have under existing federal and state discrimination law, rather than prohibiting pay secrecy clauses across the board.

The Australian Chamber of Commerce and Industry (the ACCI), on the other hand, argues that ‘the design and implementation of remuneration frameworks is a complex area of human resources management practice’. The ACCI argues that it is in employees’ best interests if pay secrecy clauses remain under Australian law as they create workplace harmony and a more passive industrial relations environment for both employers and employees by preventing industrial and individual disputes.

The Motor Trade Association of South Australia (the MTA) stated to the Senate Committee for Education and Employment that the pay gap exists in the private sector, not due to the existence of pay secrecy clauses but due to the fact that private sector wages are largely determined by market outcomes rather than by collectivised bargaining. The MTA

argued that employers should be able to monetarily reward employees without fear of being pattern bargained by ‘bidding up’ wage negotiations.

Pay secrecy clauses do reinforce pay discrimination and weaken the bargaining power of employees and should be banned in most cases. I believe Australia should adopt the pay secrecy provisions of the UK’s Equality Act, making them legally unenforceable when it comes to discrimination due to a protected characteristic. Pay secrecy clauses should only apply to employees whose remuneration information is of genuine commercial sensitivity not included in the contracts of everyday employees.

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BRIEFLY: >> China’s current censorship system – how it blocks information and current platforms. The system challenges the idea of free speech and data privacy. >> The legal standing upon which the censorship system is founded. >> The global influence China’s censorship ecosystem is having. >> Potential future direction global privacy and censorship laws will take.

China:

A New Era of Online Censorship

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hina is home to the most complex and extensive online censorship ecosystem in the world. The framework is commonly referred to as ‘the Great Firewall’ and this name reflects the way the Government not only blocks online content, but also monitors an individuals’ internet access. Transnational platforms such as YouTube, Facebook and Google have been blocked and replaced with Chinese substitutes like Youku, Wechat and Baidu respectively. The key reasoning behind this extensive censorship as purported by the Chinese Government is to disseminate sensitive content regarding the government and economic protectionism for local businesses.

The rise of President Xi Jinping in 2012 initiated a process of advancing pro-censorship legislation and increased Internet monitoring to actively serve the government’s political interests. An example of how 28 | The Brief

Gopikrishna Giritharan

the censors constantly adapt occurred in February 2018 after the Communist Party Council announced the abolishment of two five-year presidential terms and the incorporation of President Xi’s ideology into the Constitution. To combat the social outcry, censors began blocking sensitive words, notably ‘disagree’, ‘control’ and ‘I oppose,’ from the social media site, Weibo, and the search engine, Baidu. To further understand the extent of the censorship it is important to note that critical events in China’s history, such as the 1989 Tiananmen Square protests, have been completely blocked online. In June 2019, the internet censors were on high alert to shutdown VPNs, arrest activists and censor social media in anticipation of the anniversary of the Tiananmen Square protests. This begs the question, what form of legal backing does the country rely on to uphold this?

China’s legal footing to censor and monitor the internet is fundamentally predicated on the notion of Ed.3 2019

cyber sovereignty. In a white paper “the People’s Republic world, many global corporations published in 2010, the Chinese are choosing to embrace the of China is amongst Government published its view censored climate with adapted a minority of nations that it has the right to control platforms and amended versions globally who do information within its borders which would not be flagged by not have a singular similarly to its sovereignty to censors. In July 2019, Google comprehensive data regulate internal affairs without terminated Project Dragon Fly, external interference. In 2000, protection legislation.” which was a censored search the State Council, through engine tailored for the Chinese Order No. 292, introduced the first set of content market. However, in a Senate hearing, Google failed restrictions for internet content providers. This to make a commitment to not enter the Chinese prohibited China-based websites from linking to search market in the future. This is reflective of overseas websites or distributing overseas media the growing trend for global corporations choosing without specific approval. Although Article 35 of to adapt to the market of the authoritarian regime China’s Constitution affords citizens freedom of instead of excluding the giant market. Microsoft’s speech, vague content regulations and constitutional search engine, Bing, is part of this trend with the prohibitions on dissent allow the Government to search engine currently available in China however control online content. Further to this under section operating under the censorship guidelines.

5 of the Computer Information Network and Internet The global influence of this digital control has Security, Protection, and Management Regulation, also been seen in countries such as Tanzania who there is a wide range of information that entities introduced a social media tax in 2018. This is an cannot create or transmit. The forms of information adapted form of censorship which charges citizens prohibited by the regulation are incredibly broad to access platforms such as Twitter or WhatsApp. which enables authorities to restrict media and Many governments are adopting stricter internet communication deemed harmful to the Nation’s laws to censor content within the online space. For political or economic interests. policymakers in liberal democracies who want to Further to this unique cyber isolation, the protect a global and open internet, this becomes People’s Republic of China is amongst a minority an indirect barrier to the global cyberspace. Even of nations globally who do not have a singular international organisations such as the United comprehensive data protection legislation. Instead, Nations have backed a Russian based resolution regulations concerning personal data protection are to combat cybercrime which enhances censorship circuitously spread through complex and constantly and surveillance. Subsequently, while authoritarian changing laws and regulations. This is reflected regimes have an impact on the global cyberspace, by the fact that over ten government agencies are international organisations also have a substantial responsible for censorship and internet monitoring in influence upon the way people use the internet.

China including the Central Propaganda Department Internet censorship on a scale as wide as that in (CPD). These agencies are aided by an estimated China poses substantial ethical dilemmas primarily two million people who are employed through concerning free speech. This further poses a dilemma government propaganda departments and private to transnational corporations who are faced with corporations such as internet service providers to potentially embracing the censorship guidelines monitor and censor online content. of a repressive authoritarian regime. However, it China’s digital control has also begun to extend is notable that China has successfully integrated to the rest of the world, either indirectly or through internet censorship into the daily online life of 1.4 complicit behaviour from multinational corporations. billion people.

LinkedIn is the most well known example of this Considering China is one of the most influential as they have chosen to operate in China and censor nations in the world, it raises the question of what content in accordance with the censorship laws. the future of online censorship will be like in China With China being the most populous country in the and throughout the world.

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Under the Radar

We have come so far, with so far to go:

Australia’s Recognition of Indigenous Cultural Heritage Samantha Marshall

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n August 1975, Gough Whitlam ceremoniously poured a handful of red soil into the hand of Vincent Lingiari, a Gurindji man, symbolising the return of Gurindji land to its traditional owners. This was the first land grant of its kind, ending years of sit-ins and protest; Lingiari and his community were successful not because their land was protected, but in spite of the fact that it was not.

The Commonwealth of Australia had failed to see, failed to hear, and failed to prevent the desecration of indigenous cultural heritage.

The Australian Parliament has since introduced a suite of legislation to protect Indigenous land and heritage. The importance of protecting heritage has, in correlation, become a mainstream political issue.

In discussing the amendment of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) in 1998, it was not in question whether there was an impetus for the legislation, and the Australian Parliament reiterated the purpose of the ATSIHP Act, citing Mabo, as the need for ‘immediate federal legislation… to ensure total security for Aboriginal sacred sites and heritage’.

From its proclamation, this legislation provided an avenue for Indigenous groups to seek declaratory protection for culturally significant sites. Protection can be sought either as emergency protection (section 9), or permanent protection (section 10) of a site that is under threat of damage or desecration. The ‘threat’ is ordinarily a proposed development which, in most cases, is for the State government to approve or refuse. The power to protect a culturally significant area works alongside State planning assessment, which includes consideration of impacts upon heritage (including cultural/Indigenous). The ability to make an ATSIHP Act declaration is a Federal power in addition 30 | The Brief

to the State consideration of cultural heritage. Where there are gaps in State heritage assessment, the ATSIHP Act provides a safety net.

An application under either section 9 or 10 is made to the Minister for the Environment, who is empowered to make a declaration in accordance with the usual privileges and obligations afforded to Ministerial decision-making in administrative law.

A declaration under this Act is seldom made, and despite a vast number of applications, until recently no declarations had been made under this Act had been made in the past 17 years. Given the paradigmshift towards recognition of Indigenous cultural heritage in this decade, it would be challenging to maintain that none of the cultural heritage sites brought to the attention of the Minister satisfied the requirements for protection.

This happened, however, in February this year, when a permanent declaration was made by Minister Ed.3 2019

“The declaration should be celebrated for the victory that it is, however, the reality of protecting Indigenous heritage is sobering.�

Upton to protect the site of Butterfly Cave, West Wallsend. The declaration protected a site which has been traditionally used by Awabakal women over thousands of years.

The declaration should be celebrated for the victory that it is, however, the reality of protecting Indigenous heritage is sobering. First, throughout the application process there had been reports of developers spying on members of the Awabakal community. Second, the process to protect the site commenced with an application for State heritage listing (granted in 2013) and has required the commitment of significant time from the community and pro bono legal services. The process is arduous and takes place within the non-Indigenous Australian bureaucracy, where the developer has more experience, assets, and time.

Lastly, the declaration did not take into account the totality of land that is significant for the practices Ed.3 2019

undertaken at the Butterfly Cave; it is unlikely to be culturally appropriate for declarations to be made by reference to coordinate determined right-line boundaries when practices are fluid and involve cultural pathways.

Since 1975 we have enacted legislation that seeks to enshrine protection of Indigenous heritage, yet infrequently using them effectively. Where the Commonwealth might be seeing and hearing the importance of Indigenous cultural heritage, they are rarely protecting it. thebrief.muls.org | 31

A Year in Review

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MULS Events 2019

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Stuff Law Students Like

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Kevin Ahmadi

T

he moot court is like the colosseum for law students. Except, no one gets hurt and everyone walks out a champion regardless of whether you win or lose.

Mooting is a simulated appeal based on a fictional factual scenario. Competitors are allocated to either act for the Appellant or Respondent in the matter and have the opportunity to assume the roles of Senior or Junior Counsel as well as instructing solicitors. The procedure of the moot requires the two opposing sides to present written and oral submissions to the moot court bench. The Senior and Junior Counsel of the Appellant present their oral submissions first. Typically, the Appellant’s submissions seek to persuade the court to overturn the orders of the trial judge. Whereas, the Respondent’s submissions endeavour to sway the court to dismiss the appeal and uphold the trial judge’s orders.

Mooting is an incredibly fun and rewarding opportunity during law school. From drafting submissions to your favourite music to embracing your inner Harvey Specter by advocating fiercely for your fictitious client, mooting is the closest experience law students have to appearing in Court while being at university. Even the most daunting questions from the Bench produce an exciting adrenaline rush as you quickly flick through your submissions to find an answer.

An attractive aspect of mooting are the opportunities for intervarsity and international 34 | The Brief

competitions. Not only is it a privilege to represent your university at the prestigious competitions, but they can also present itself as an opportunity to visit cities around Australia and the world, make lifelong memories, and new friends. This is because you might find yourself staying at unique Airbnb’s or fancy hotels, running around university law libraries trying to find cases in the law reports and feeling a shared sense of achievement with your teammates after the competition.

The importance of mooting is that it helps develop and improve your legal skills. It is an impressive addition to your resumé and also an excellent way to network with other law students as well as legal professionals.

Mooting gives you practical experience and builds you skills in arguing persuasively. Most past mooters will attest that it helps boost your assignment marks, as it provides you with the opportunity to hone your research and analytical skills, and practice applying legal principles to factual scenarios.

Whether you are an avid public speaker or someone that feels anxious presenting in front of legal professionals, mooting takes you out of your comfort zone and allows you to develop your legal skills while having fun in the process. You may even discover the area of law you mooted about becomes your career passion.

‘That concludes my submissions’.

Ed.3 2019

Postcard from Abroad

Exeter, United Kingdom

The Move to a Cold Country Town Nerissa Puth

T

here were never any real reasons to head to a small town in Southwest England called Exeter during the winter season, but for a strong ‘gut feeling’. In hindsight, I realise now that there are a lot of aspects and quirks of living in a smaller town to be embraced. Last semester, I had the good fortune of undertaking my studies abroad at the University of Exeter, UK. The University of Exeter is situated in the historic town of Exeter in Devon, which is now a popular student city. Students take pride in allegedly having the highest tree-to-student ratio in any university in the UK and attending the very same university that J.K. Rowling had attended. In fact, one of the most notorious, yet unsubstantiated fact is that J.K. Rowling had drawn inspiration for the architecture of the Azkaban prison in the Harry Potter series from the city itself!

Exeter, Devon Ed.3 2019

thebrief.muls.org | 35

University of Exeter, Streatham Campus

The University of Exeter has one of the highest

student satisfaction rates. Its high-calibre teaching staff and robust student union most definitely added to my positive campus experience. The University encourages a strong sports culture, and one of the highlights of my experience was joining the University of Exeter Ladies Football Club. While there were no tutorials, alongside lectures, we had ‘workshops’ and ‘seminars’, which ran for two hours each. I found that the teaching style, structure of units, and a low students-to-teacher ratio encouraged an in-depth understanding of weekly topics, genuine dialogue within the classes and individual relationships with each teacher. While abroad, I had undertaken Intellectual Property: Trademarks and Patents, Art and Law, EU Trade Law, and Alternative Dispute Resolution. With Brexit on the anvil, a common reflection at the end of lessons was how UK law could be impacted by Brexit. Being in UK at this critical time gave me a unique insight into the relationship between the English legal system and the European Union. Art and Law, taught by Dr Andrea Wallace, was one of the most enjoyable units that I had taken whilst abroad. To illustrate, we had produced our own Bob Ross painting in class as a critique on the threshold of originality and re-use in copyright law!

I would recommend this unit to anyone with an interest in art, as it serves as a conceptual space encompassing legal areas like intellectual property law, cultural heritage law, contract law, private and public international law.

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@ Cliffs of Moher, Ireland

While it is often difficult to meet new people on

campus in Sydney, the active campus life at the University of Exeter ensures that you encounter the same people more than once. While there is not much to do in a small town in comparison to a metropolitan city, university students are encouraged to create a closer-knit community and creatively make their own fun amongst themselves.

Adapting to Life in Exeter I did not find adapting to life in Exeter too difficult because there were many similarities with Australia.

Moreover, Exeter is an inclusive town that embraces and celebrates diversity. However, it is worth noting that if you are to experience any ‘shocks’ in England, it is likely to be attributable to the fact that it rains for 10 consecutive days, without any sight or prospect of sunlight.

There are many ways to find a sense of belonging in the new city. I had the opportunity to get to know local students, and experience British culture by living in a shared-accommodation, as opposed to a studio apartment. Moreover, undertaking university activities like the Grand Challenges – a project week to innovate solutions to wicked challenges, allows the opportunity to meet people from different disciplines, and I would highly recommend it. Another big aspect of living in a student city is frequenting the same small bars and nightclubs that you will develop a lovehate relationship with. Yet, it is on these sticky dancefloors that you will encounter most people Ed.3 2019

St Michael's Mount in Cornwall

from your classes. Further, I recommend taking advantage of the society-led outings that take you to various small pockets in England. One of my favourite memories is a hiking trip organised by the Exeter West Country Society in Dartmoor during the English spring.

Outside of University Life Exeter is an ideal location for life outside of university.

If you do wish to get away from the country town, it is not at all difficult to drop by to London for a day or weekend trip, as the commute is only 2-3 hours by Ed.3 2019

an overland train. There is also an airport in Exeter itself, which allows convenient travel to Glasgow, Edinburgh or Dublin. The close proximity to Europe is an added advantage. However, I strongly recommend spending time in the local area as well. On the weekends, I also enjoyed exploring the local cafes and bars by the River Exe. Overall, my experience of living in a small town was an exciting opportunity. I recommend exchange to anyone willing to undertake a new challenge, as it can promote personal growth and help us realise what we like (and do not like)! thebrief.muls.org | 37

A Brief Review

When They See Us Brindha Srinivas

W

hen They See Us: a fourepisode Netflix mini-series dramatises and fleshes out the details of the gutwrenching narrative of the Central Park Five. Aged between 14-16 years old, the Central Park Five were coerced into giving false statements and were subsequently wrongfully convicted for the assault and rape of Trisha Meili. Director Ava DuVernay is straightforward and explicit when narrating the harrowing events endured by the Central Park Five. With short but succinct introductions of each of the five boys and glimpses of their seemingly normal teenage lives it is enough for the audience to forge an emotional connection and investment in their stories as the tale unfolds. Each episode explores institutional failure on various levels; the arrests, interrogation and coerced confessions, the distressing trials, the boys’ experience in detention and finally the difficulty to adjust to post- prison life.

Utilising thought provoking dialogue and scene structures, DuVernay and her cowriters are masterminds in injecting the audience with emotions of horror, frustration and anger towards the justice system. It forces the audience to heavily evaluate structural racism in the American criminal justice

38 | The Brief

system against minorities and minors. The show further alludes that many of the biases and injustices highlighted in the case remain in the justice system and in society today.

The multi- faceted and complex nature of the show is a true testimony to the systematic racism and disenfranchisement which lingered during the 1980s.

DuVernay stays loyal to her justification of creating a show which requests the audience to ‘re-evaluate everyone that they define as a criminal’. What is particularly striking is that though When They See Us delves into the investigation of the case and the nitty gritty details, it presents a unique aspect beyond being another dramatic crime show.

DuVernay marries the procedural twists and turns with intimate attention to each of the boys’ and their family’s experiences, giving the show a distinct and refreshing emotional texture. When They See Us boasts a collection of talents, all who bring their own individuality and capture the loss of innocence of the real life victims. It is a story that is hard to watch and even harder to accept. It is one that will remain in your conscience and reaches far beyond screen, calling upon us to question the justice system, a challenge that will strongly resonating with a contemporary audience.

Ed.3 2019

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Ed.3 2019