Baker McKenzie

August 2018 Sydney University Law Society

1 Law in Society August 2018

Many thanks to all those who made possible the production and publication of this semester’s edition of Law in Society.

We would like to thank Baker McKenzie and the Sydney law School for their continued support of SULS and its publications. Editor-in-Chief Brigitte Samaha

Editors Jess Everingham Llewellyn Horgan Tara Janus legalisation/ Tahlia Peterson Design control Christina Zhang (SULS Design Director)

SULS Publications Director Aleksandra Pasternacki

© Sydney University Law Society.

DISCLAIMER Law in Society This journal is published by the students of the University of Sydney. Law in Society is published under the auspices of the August 2018 Sydney University Law Society. The views expressed in the articles are those of the authors, not the editors. ACKNOWLEDGEMENT OF COUNTRY Sydney University Law Society We would like to acknowledge and pay respect to the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation. It is upon their ancestral lands that the University of Sydney is built. As we share our own knowledge and learning within this University may we also pay respect to the knowledge embedded forever within the Aboriginal Custodianship of Country.

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4 Find us at Find us on 5 @BakersAUS Facebook Sydney University Law Society is delighted Anastasia Radievska posits the idea of the to present this edition of the bi-annual welfare system as a ‘web of control’. At a Law in Society Journal, centring on the fundamental level, Joy Chen investigates theme of ‘Legalisation and Control’. This whether Parliament has usurped core theme invites contributors to explore the judicial functions through the seminal complexities which lie along the spectrum Lazarus decision. from legalisation to control, and even to reach beyond this to lacunae: those Ultimately legislation is shaped by the vacant and ungovernable islands where normative universe we all live in. Grace no law exists at the frontiers of human Lovell-Davis examines this in the context enterprise. of sex work regulation, which is so often grounded in moral imperatives, Many contributors have valiantly while Deaundre Espejo explores the confronted this theme, where legislators rise of DeepFakes. Remy Numa takes a are still yet to catch up to rapid changes commercial perspective, and investigates in technology, science, and industry. how the market shapes anti-siphoning fore- Among these is Liam Ogburn’s captivating legislation. exploration of human cloning legislation, and Connor Jarvis’ enquiry into whether As ever, the antidote to the imperfect, copyright can subsist in the original works sometimes sobering, decisions our of Artificial Intelligence Systems. governments make, is rigorous intellectual enquiry. Therefore, I would like to thank Confronting our brave new world, Aleks all of our writers for their thought- word Pasternacki devises a rational way forward provoking contributions. for integrating bit-coin technologies into the Australian taxation schema, while On behalf of the Law in Society team, I Pranay Jha challenges the adequacy would also like to thank Publications of current laws to meet the challenges Director Aleks Pasternacki for her of autonomous vehicles in the future. invaluable assistance as well as Design Isabelle Buchanan and Benjamin John Director Christina Zhang for setting out the ask: although the Australian government Journal so wonderfully. Personally, thank can regulate the shop-front, can it regulate you to my team of Editors including Tara the slavery which thrives in the recesses of Janus, Tahlia Petersen, Jess Everingham commercial supply chains? and Llewellyn Horgan. Most importantly, thank you to all of our readers. At the other end of the legislative spectrum, our contributors also question, challenge and seek redress from the worst excesses of government control. Brigitte Samaha Natan Skinner interrogates the high- Editor-in-Chief handed regulation of public space, while

7 35 AI and Creative Works: Controlling the Beast Through IP Law Connor Jarvis

42 Safety Net of Support or Web of Control: contents Discursive Dimensions of Australia’s Social Security Law 4 Anastasia Radievska Foreword 50 8 When the Car Starts to Drive You: Privacy Rights Falling Into The Same Trap? An Analysis of the Modern Slavery Bill 2018 (NSW) and Government Control in Autonomous Vehicles and Achieving Business Accountability for Slavery in Supply Chains Pranay Jha Isabella Buchanan and Benjamin John 55 14 Fake Porn: ‘Fake News’ Capital Gains Tax and Disposals of Bitcoin: A Mismatched Pair Takes a Dystopic Turn Deaundre Aleks Pasternacki Matthew Espejo

19 59 Human Cloning Practices in Australia: A Regulatory Controlling Movement: Public Space and the Law Chimera or is it Time to Reconsider? Natan Skinner Liam Ogburn 63 26 Game Over: Why it is Time to Retire the Anti-siphoning List Constitutional Limitations on the Rémy Samuel Legislature’s Ability to Change the Law? Joy Guang Yu Chen 68 References 30 Moral Panic and Economic Gain: How the Decriminalisation of Solicitation and Brothel-keeping Turned Sex Work Into an Industry Grace Lovell Davis

8 9 First, they take identification papers and anything else that could connect a person to their family. Then, after several weeks, the wages disappear. Threatened with violence and far from home, the hands continue to sew, construct and pick. In several weeks, the products of slave labour will arrive in Australia, adorning shop windows and filling the shelves of supermarkets.

Introduction Wales are required to become their own watchdogs against slavery in their Slavery in 2018 thrives in the recesses supply chains. The mandatory reporting of commercial supply chains. Slave obligations are designed to instigate traders and organised criminals prey fundamental changes in companies’ on the hopes and aspirations of the cultures, encouraging them to move away most vulnerable members of the global from high risk suppliers and ultimately community, promising victims the chance reduce the profitability of criminal slave- to flee poverty and persecution and to exploiting contractors and manufacturers. FALLING INTO THE provide for their families. Instead, victims are confronted with elaborate systems of coercion and control that help to The Modern Slavery Bill 2018 (NSW) strip them of all legal and human rights by forcing them to work for little or no The absence of a comprehensive human SAME TRAP? return.1 Although not the only narrative of rights framework in Australia has left the modern slavery, it is one that the Australian obligations of commercial organisations business and consumer community are unclear in regards to slavery in supply complicit in. Modern slavery therefore chains. The current legal and legislative An Analysis of the Modern Slavery Bill 2018 (NSW) exists as an extreme form of inequality framework is centralised on The and Achieving Business Accountability within a complex matrix of political, Commonwealth Criminal Code, however economic, social and cultural pressures. criminal provisions have to date had little for Slavery in Supply Chains bearing upon companies who simply turn In May this year, the New South Wales a blind eye to exploitation overseas.4 Parliament introduced the Modern With supply chains becoming ever more Slavery Bill (‘the Bill’). With an estimated global and complex, the potential for 40 million people living in slavery, slavery organised criminals to operate out of legal contributes $150 billion to the global blind spots has also increased, meaning economy, posing an ethical dilemma legislative reform is essential in the for commercially driven companies, Australian jurisdiction. Isabella Buchanan & Benjamin John particularly those that source materials LLB III LLB III from or rely on manufacturing in developing nations.2 Whilst many have An appropriate definition of adopted the “slavery-free” and “sweatshop- ‘Modern Slavery’? free” manufacturing labels as an ethical badge of honour in certain industries, the The proposed definition of ‘Modern trend is inconsistent across all goods and Slavery’ under section 5 (a) of the Bill services providers. The Modern Slavery exists with reference to Divisions 270 Bill (NSW) aspires to extend corporate and 271 of The Commonwealth Criminal accountability, prescribing a standard Code, being “any conduct constituting a of due diligence across commercial modern slavery offence”.5 The Bill defers organisations with an individual annual definition to Division 270.1 which states turnover above $50 million.3 The Bill slavery is “the condition of a person over creates a ‘chain of enforcement’, as whom any or all of the powers attaching companies with employees in New South to the right of ownership are exercised, 10 11 including where such a condition results such as exploitative child labour. product before it reaches a customer. Greater cross-border communication from a debt or contract made by the However, as Laura McManus, Ethical between New South Wales businesses person”.6 However, the definition in the Supply Chain Management Consultant at and authorities where the supply chains NSW Bill goes further and adds that forced Today’s ‘Supply Chains’ Konica Minolta, asserted in evidence to the are located will be required to achieve labour to exploit children or other persons Select Committee on Human Trafficking this. A principle addition to the NSW Bill will also be deemed modern slavery.7 Supply chains can generally be defined as in New South Wales, large companies could then be to include a provision that “vertically integrated contractual systems may find it exceedingly difficult to review requires companies to report each time The term ‘Modern slavery’ has become a of production”10, whereby raw materials and source information beyond the first a modern slavery offence is identified in formidable advocacy tool and rallying call are converted into finished products and or second tier of their supply chains.14 one of their supply chains to authorities to arms for human rights and consumer delivered to consumers. The globalised For example, sportswear company Nike within the jurisdiction where the offence groups. It functions as a catch-all term world has seen supply chains expand into manufactures products out of 554 different occurred.21 describing and conveying the seriousness multiple tiers meaning the manufacturing factories across 42 different countries,15 of severe exploitative practices ranging of a single product can span several meaning their supply chains could be from human trafficking to child abuse and countries and contractors. Part 3 of multiple tiers deep. It is imperative that Penalties and enforcement other slavery-like practices.8 However, the Bill recognises the dependency of strict clarification and guidance on the there is not always consistency between companies on global outsourcing, and that definition of supply chains is provided So far, it appears that the NSW Bill legal definitions across jurisdictions. to mitigate exploitation risks, companies to avoid companies missing, or worse, has taken certain steps to improve on The Interim report of the Joint Standing should themselves identify risks to human intentionally omitting, key information the framework provided by the 2015 Committee on Foreign Affairs, Defence rights.11 Under subsection 54(4) of the in their modern slavery statements. The UK Act. The key difference however and Trade’s Inquiry into a Modern Slavery Modern Slavery Act 2015 (UK), a slavery Bill does attempt to tackle some of this is the imposition of penalties for non- Act for Australia endorsed a definition and human trafficking statement must uncertainty by introducing Regulations to compliance under the NSW Bill. where modern slavery encompassed involve an analysis of any of a business’ support the Bill, and by also encouraging “forced labour, child labour, bonded supply chains.12 The legislation, however, the anti-Slavery Commissioner to develop Legislation in other jurisdictions deals with labour, human trafficking, domestic does not provide a definition of ‘supply further guidelines for businesses to the issue of punishment and compliance servitude, orphanage trafficking, sex chain’ or a clear explanation on how deep prepare a slavery and human trafficking in differing ways with varying degrees trafficking, forced marriage, slavery and into the supply chain a company must statement.16 The success of the future of successes. For example, companies in other slavery-like offences.”9 UNICEF report. Similarly, subsection 25(4) of the legislation thereby falls on these additional Denmark may be fined for not complying Australia sought to extend this definition Modern Slavery Bill 2018 (NSW) states: regulations and guidelines, however with the disclosure requirements under in their Submission Number 129 to the these are yet to be drafted.17 The NSW their equivalent legislation. The penalties Joint Standing Committee by calling The statement is to contain such Regulations to the Bill should recommend have seen 66 percent of companies fully for the specific inclusion of the worst information as may be required by or under that businesses perform due diligence on comply.22 In contrast, the UK Act only forms of child labour within the scope the regulations for or with respect to steps all tiers of their supply chains, and then allows for injunctive relief, whereby of the Criminal Code’s definition. Whilst taken by the commercial organisation isolate high-risk areas and focus resources the State may bring civil proceedings this recommendation is not explicitly during the financial year to ensure that its on investigating and verifying suppliers in for failure to produce a modern slavery incorporated by the words of the Code, it is those high risk areas. statement in accordance with the captured by broader references to offences goods and services are not a product of statute.23 Preliminary research shows such as debt-bondage and the production supply chains in which modern slavery is Such an approach could be based on significant instances of non-compliance, 13 of child abuse material. The definition’s taking place. existing OECD (Organisation for Economic which suggests that, in the absence of specificity therefore deserves praise when Co-operation and Development) penalties, the legislation has failed to compared to the more restricted definition Guidelines for Multinational Enterprises.18 incite a serious and proactive response provided by the Modern Slavery Act 2015 Like the UK legislation, the Bill provides no For example, the guidelines for conflict from businesses operating in the United (UK) (‘the UK Act’) which does not further clarification on specific reporting minerals, applies to companies that Kingdom.24 In California, purchasers require entities to specifically report on requirements for companies with multiple supply minerals from the Democratic may bring an action for damages under the use of forced child labour when found tiered, complex supply chains. This has Republic of Congo, and outlines due the Transparency in Supply Chains Act in supply chains. Compelling companies the capacity to create significant problems diligence and verification steps for the 2010 where a business makes misleading to report on child exploitation as defined for regulation and enforcement since it head company.19 If information can be statements in a modern slavery statement. by the NSW Bill is therefore a significant can be argued that too much discretion gathered and shared about specific areas However, research also shows compliance advancement on the legislation that has is given to the commercial organisations and industries known to be at a high risk has been low, with estimates suggesting preceded it. The definitional basis of the themselves to self-regulate. The most of modern slavery offences (such as the the number to be below 20 percent.25 Bill, found in the Criminal Code Act 1995, favourable interpretation of ‘supply sea food industry in Asia),20 businesses has a contemporary understanding of the chains’ in the Bill is that it includes every are more likely to make better choices In light of the above international forces that perpetuate modern slavery, business that comes into contact with a about current and future contractors. standards and methods for achieving

12 13 compliance, the Bill imposes a pecuniary show framework’ of identifying risks Conclusion penalty of 10,000 penalty units when to the committee and the public will organisations do not make their modern require businesses incorporating the Now assented to by parliament, the Bill 26 slavery statements in public, or new requirements into their existing has become the Modern Slavery Act 2018 knowingly provide information that is due diligence and risk management (NSW) and has the potential to become a 27 false or misleading. As the aim of the frameworks. Discussion papers suggest formidable tool in Australia’s fight against NSW Bill and the other acts discussed is that big business supports anti-slavery modern slavery. Despite the possibility to achieve transparency in supply chains, legislation and aspires to create positive of taking further measures against 29 no penalties currently exist under the change across the economy. The real test companies, the strength of the new Act Bill (or any of the other statutes) for will come when the costs of compliance is highlighted when compared to the businesses that identify modern slavery begin to build for businesses, both at federal Modern Slavery bill introduced in their supply chains and continue to the big end of town and for SMEs (small by parliament in June 2018, which only use the supply line nonetheless. It is yet and medium sized enterprises). To avoid applies to companies in Australia with to be seen whether any action could, penalties under the Bill, a business $100 million consolidated revenue and or would, be taken against companies could essentially do the bare minimum proposes no direct penalties for non- under The Commonwealth Criminal Code; by providing known information about compliance.33 As with all new legislation, however as practice has shown this would their supply chains to the anti-slavery there still remain unanswered questions be an unprecedented response. Compared committee. Instigating change through and problematic provisions within the to existing legislation, the NSW Bill due diligence therefore relies heavily NSW Bill (as it was). However, in a world positively imposes penalties under the Bill on public pressure, brand image and that is constantly shifting and changing, for non-compliance. However, the next reputation. Scholars have pointed to the the Bill, now an Act of parliament, forces step for New South Wales is to impose power of the consumer on this issue but greater attention to human rights and their penalties where companies blatantly they have also suggested that modern protection by some of the most powerful disregard human rights abuses in their slavery legislation could adopt elements and wealthiest corporations in Australia. supply chains and take no action to from the Illegal Logging Prohibition As a leader in the Asia-Pacific region, the alleviate the offence. The Bill must help Act 2012 (Cth), such as imposing both Modern Slavery Act 2018 (NSW) is an companies recognise that the eradication due diligence requirements and direct essential first step for Australia to not only of modern slavery is not exclusively a penalties for knowingly or recklessly illustrate its position on modern slavery legal issue, but one that requires a more importing items that have been sourced but to encourage other countries in the 30 proactive attitude towards human rights illegally. The “hybrid legislation” region to follow suit. by companies more generally. Companies approach,31 combining due diligence must reconsider their relationships with requirements with penalties for profiting suppliers and ensure their own internal from illegal conduct in supply chains, risk management systems can serve as the has had a noticeable impact in the first identifier of issues of adverse human Australian logging industry. In Europe, rights conditions, at home and abroad. similar hybrid legislation has also been successful in instigating change, with businesses actually opting to find new Success of the Bill and suppliers in order to remain compliant.32 corporate accountability Where corporations have not been held accountable under The Commonwealth Globally, Australia is seen as a leader in Criminal Code, there should be direct the fight against modern slavery.28 Despite action against companies that knowingly the proactive action of New South Wales, or recklessly continue to use suppliers or the Bill’s lasting impact will depend on manufactures that are proven to engage enacting cultural changes within the in modern slavery. Direct action through business and consumer community. litigation and penalties would also involve True transparency requires businesses greater media attention, amplifying cooperating with the New South Wales pressure on companies to comply. Independent Anti-Slavery Commissioner and Modern Slavery Committee in an open and proactive way. The ‘know and

14 15 Government regulated markets are no (TD 2014/26) determined that bitcoin is longer the sole markets for trade. In an ‘asset’ for the purposes of s 108-5(1) 2009, the first established cryptocurrency, of the 1997 act, making dispositions “Bitcoin”, was introduced into the market.1 of bitcoins subject to Capital Gains Tax Since then there have been thousands of (CGT).8 variations of cryptocurrencies released that trade on the market; some substantially mimicking the properties of bitcoin, Capital Gains others copying some of its properties while adding new characteristics, The CGT regime set out in the 1997 act such as incorporating ‘smart contract’ taxes gains made on dispositions of capital functions into their decentralised assets. Under the regime, gains made on computer platforms.2 In March 2017, disposal of capital assets form part of the cryptocurrency market capitalisation the total sum of a taxpayer’s assessable reached almost USD 25 billion.3 income for the financial year, and are taxed according to the rates set out under What does the cryptocurrency the Income Tax Rates Act 1986.9 According market look like in 2018? Despite to the Commissioner’s determination the cryptocurrency ‘bubble’ bursting, that bitcoin is an asset for capital gains CAPITAL GAINS TAX resulting in Bitcoin losing over half its tax purposes, dispositions of bitcoin value since 2017, market capitalisation will trigger an A1 Event. An A1 event is of cryptocurrency reached just over triggered when a capital asset is disposed USD 303 billion in May 2018.4 This of.10 As such, the taxpayer will accrue a & DISPOSALS OF BITCOIN: means that since 2017, cryptocurrency capital gain if the disposal price (or sale capitalisation has increased 25 times over. price) exceeds the cost base (the amount It therefore remains a lucrative market paid by the taxpayer to originally acquire for governments to levy capital gains tax the bitcoin).11 The difference between the upon the assets traded within it. Bitcoin sale price and the purchase price thus A MISMATCHED PAIR continues to remain the dominant form forms the capital gain upon which tax is of cryptocurrency, retaining almost 40% levied. of cryptocurrency market capitalisation in May 2018.5 In order to trigger the operation of the capital gains tax regime, the thing disposed Given the extraordinary capitalisation of of must be a ‘CGT asset’. A “capital asset” cryptocurrency in the modern market, it is defined as either (a) any kind of is unsurprising that the Australian Tax property or (b) a legal or equitable right Office (‘ATO’) seeks to tax Bitcoin through that is not property.12 The Commissioner Aleksandra Pasternacki their various tax regimes. In 2014, has determined that Bitcoin satisfies this 13 LLB V the Commissioner issued a number of definition. However, it must be borne in determinations concerning the operation mind that a Commissioner’s determination of Bitcoin and the Australian income tax is not law but rather the Commissioner’s regimes. The rulings found that bitcoin interpretation of it. Although taxpayers was subject to the operation of the Income must comply by the Commissioner’s Tax Assessment Acts 1936, the Income determinations, his determinations may Tax Assessment Act 1997 (the 1997 Act) be challenged and overturned. and The Fringe Benefits Tax Assessment Act 1986, including that the provision of bitcoin to an employee from an employer is Is a Bitcoin ‘a kind of property’ as a property fringe benefit,6 and that bitcoin determined by the Commissioner? can be held as trading stock and thus be subject to the trading stock regime in the To determine whether bitcoin is property, 1997 Act.7 Tax Determination 2014/26 the starting point is an analysis of what

16 17 Bitcoin actually is. While it is understood In the leading Australian case of Yanner v action recognised by case law and codified force. Whether or not a thing has value by some of its users as being a form of Eaton, the High Court of Australia held that by statute.26 when traded on a market is not a necessary unregulated currency, it is extraordinarily property is not a thing per se but is rather or sufficient characteristic of property. For complex and its nature challenges ideas a person’s legal relationship with a thing. Bitcoin holders often compare their example, a person’s relationship with a of currency and property as understood “Property”, the High Court held, “refers ‘rights’ as being similar to the rights of used paper tissue is tangible personal in Anglo-Australian law. Under Australian to a degree of power that is recognised shareholders in a company. It is argued property under the law as it is capable law, currency will only be property if it in law as power permissibly exercised that Bitcoin, being a recorded transaction of ownership and possession, despite is capable of physical existence, in that over the thing.”18 The ATO quoted from which is registered to an address on the the paper tissue having no value on the “the right to money is inseparable from this judgment to substantiate their blockchain, is comparable to the rights of market. the possession of it.”14 Bitcoin clearly falls determination that Bitcoin is property.19 A shareholders, whose share holdings are outside this understanding of currency. crucial oversight by the ATO was the High recorded on the share register. However, Court held that the power exercised over shareholder rights are recognised by A Global Initiative? For a discussion of whether Bitcoin the thing must be recognised in law. law.27 Long before the Corporations Act is property, Bitcoin as it is ‘traded’ in 2001 (Cth), a company was recognised Earlier this year, the ATO established the market comprises of the following The issue is that Bitcoin and a user’s as having a legal personality distinct from a taskforce to ‘crack down’ on Bitcoin 3 elements.15 First, it is a record of a relationship with it is not recognised that of its owner(s) (the shareholders) dispositions.30 It is the Government’s transaction on a decentralised and by Australian case law or statute, nor and the shareholders’ rights were intention that dispositions of bitcoin encrypted register. Secondly, this does the Australian Government (or any recognised under various statutes dating are not immune from taxation, which is transaction is registered to an address government) possess any regulatory back to the 1800s.28 The share register not surprising given the vast sum of tax being an alphanumeric string. Thirdly, power over Bitcoin given its encrypted, acts as a mere record and is not a basis for that could slip through the cracks in this a Bitcoin user – the person colloquially decentralised nature. Further, if the the shareholder’s rights. By contrast, the active cryptocurrency market. The ATO understood as the “owner” of the Bitcoin government did legislate to recognise ability to obtain value in a trade of Bitcoin is not alone in its attempt to tax Bitcoin – has access to the intangible ‘public/ a relationship between a user and their is contingent on there being a record of dispositions. Taxing Bitcoin has become private’ keys related to the address on the Bitcoin, it is unclear how this legal a transaction on the blockchain. Even if a common concern to governments register. Access to that private key allows regulation would be enforced given the parliament legislated to recognise Bitcoin worldwide. Australia has followed the UK the user to ‘trade’ in Bitcoin. decentralised nature of the ledger. as ‘property’, courts would be unable to and USA, whose government tax bodies enforce transfers of Bitcoin. have recognised cryptocurrency as subject Bitcoin is transferred between users In Anglo-Australian law, property is to their capital gains tax regimes. by a new record being added to the generally understood as being either real Thus, it may be that Bitcoin is incapable blockchain. This records the transaction or personal property.20 If Bitcoin were to of being recognised as ‘property’ under In the USA, the Internal Revenue Service after the transaction is signed off with align with a category, it would be personal Australian law. There is no right ‘recognised issued a notice in early 2014 declaring the user’s private key, validated by the property. Personal property is further by law’ which a user may enforce in court that cryptocurrency should be treated as process of ‘mining’. This transaction on divided into two categories: corporeal as a chose in action in respect of Bitcoin. property for capital gains tax purposes if the blockchain is registered to the new (being tangible property) and incorporeal Rather, a user of Bitcoin has mere access the cryptocurrency is held as an asset.31 address, and the purchaser is issued a property.21 Since it has no tangible to a key which allows them to transact on A notice has a similar effect to the public/private key with an alphanumeric existence, Bitcoin aligns more closely a decentralised register. Commissioner’s Ruling in that it must code that corresponds to that address.16 with incorporeal property (a ‘chose in be followed by the taxpayer but it is not action’). A chose in action is a right to sue The Commissioner argued that to law. However, the capital gains regime in These three components – the recorded in relation to the thing that emerges from determine whether something constitutes the USA works differently to Australia’s transaction, the registered address and the relationship to the thing itself.22 property is a matter of evaluating the system. Whilst short-term capital gains access to the keys related to the address various proprietary characteristics are taxed at the same rate of ordinary – form ‘bitcoin’. Intangible property rights are created by inherent to using the thing. He listed income, long-term capital gains are taxed law. A historical inquiry into choses in qualities found in Bitcoin which are according to different rates.32 action confirms this. A chose in action also evident in other forms of property Anglo-Australian conceptions of property - or the right to sue in relation to the relationships, such as the right to control In the UK, Her Majesty’s Revenue and intangible thing – is underpinned by the property as evident in the user’s ability Customs (HMRC) released a policy An analysis of the nature of Bitcoin fits recognition of such a right in case law to transact with Bitcoin. However, the brief in 2014, with a similar effect to uncomfortably with Anglo-Australian or in statute.24 For example, patent or Commissioner argued the determinative the Commissioner’s Ruling in that it is conceptions of property. As such, the trademark owners source, recognise and proprietary characteristic of Bitcoin is that not binding as law but binding upon Commissioner’s determination that regulate these property rights in statute. it is treated as a valuable, transferable the taxpayer.33 The HMRC declared that Bitcoin is ‘property’ may be open to Similarly, the right to enforce performance item of property by the community.29 With income relating to Bitcoin will be taxed challenge. of contractual obligations is a chose in respect, this argument possesses little depending on the taxpayer’s use and

18 19 relation with the Bitcoin. Sale of Bitcoin in the course of business will be subject to income tax, whereas a capital disposal will be subject to capital gains tax.

These countries’ governments, like Australia, have refused to recognise bitcoin or other cryptocurrencies as property through legislation. As such, the governmental agencies have been forced to rely on their own powers to levy tax on Bitcoin holders. The inaction of the legislature reveals a stark irony: that governments are willing to benefit from the Bitcoin market through their taxation systems, but are hesitant to afford recognition or protection to Bitcoin holders through legislation. HUMAN CLONING PRACTICES IN AUSTRALIA

A regulatory chimera or is it time to reconsider?

Liam Ogburn LLB III

20 21 and inefficient methods of assisted cooperated to prohibit practices, such “Define: Chimera reproductive technology (ART), such as as the placement of a human embryo in-vitro fertilisation (IVF). However, these clone into a human or animal body, the 1. (Biology) An organism containing a mixture of genetically different tissues, formed were met with resolute objections, namely creation of a human embryo for a purpose by processes such as fusion of early embryos, grafting, or mutation. concerning the ethical implications other than a pregnancy in a woman15, for human dignity, the volatility of the the creation or development of a human 2. A thing which is hoped for but is illusory or impossible to achieve.” procedures (Dolly marked the 278th embryo containing the genetic material attempt), or simply a fear that the cloning of more than two persons16, the creation prophecy presaged in Huxley’s Brave or development of a hybrid embryo17, and New World7 would become all too real. the intentional alteration of the human I. Introduction Australia must take decisive steps to The United Nations (UN) acted swiftly in genome so that the altered characteristics ensure responsive regulation is prioritised response to the outcry, with its subsidiary are heritable.18 The Research Involving It has been almost 50 years since Windeyer as a core feature of its model. While organ, the United Nations Educational, Human Embryos Act 2003 (NSW) was also J in Mount Isa Mines1 characterised the human cloning practices pose a complex Scientific and Cultural Organization enacted to establish a Federal licensing law as “marching with medicine, but in the Gordian Knot to regulatory bodies who (UNESCO), issuing the Universal scheme, which aims to promote “a uniform rear and limping a little”2. In respect of may forever bear the caricature of playing Declaration on the Human Genome and Australian approach to the regulation of 8 19 Australia’s current regulatory framework ‘catch up’ with science, the effective Human Rights in its 29th session in 1997. activities” . The National Health and for human cloning, one could argue regulation of human cloning practices in The Declaration sought to ensure, inter Medical Research Council (NHMRC) 20 this limp to be more of a nonplussed Australia is by no means a chimera. alia, the safeguard of human values by Embryo Research Licensing Committee stagger. Australia’s regulatory efforts prohibiting practices “contrary to human is primarily responsible for governing this 9 concerning human cloning have lain dignity” and promoting the objective of scheme, and can allow authorised license dormant under the veil of Federal and II. The emergence of human cloning “not reduc[ing] individuals to their genetic holders to lawfully undertake practices State legislative schemes enacted over 15 characteristics and respect[ing] uniqueness that involve the creation of embryos, ART- 10 21 years ago, however, a recent biomedical Despite its locus in science-fiction for and diversity” . created embryos, and hybrid embryos – breakthrough at the Chinese Academy many years, human cloning only emerged all practices ordinarily prohibited under of Science’s Institute of Neuroscience3 on the horizon of scientific possibility the PHCR Act. has elicited genuine concern. Biologists in 1996 when biologists of the Rosilin III. Australia’s regulation of have successfully cloned two long-tailed Institute at University of Edinburgh cloned human cloning macaques named Zhong Zhong and Hua “Dolly” the sheep4 - the first ever mammal IV. Traversing the gap through Hua, marking the first time in history that to be cloned in history. Through a process Australia followed suit by introducing responsive regulation primates have been cloned. With cloning known as somatic cell nuclear replacement the Research Involving Embryos and experts considering this advancement (hereafter ‘SCNT’), the team sliced out the Prohibition of Human Cloning Bill 2002 So, why is the birth of Zhong Zhong as overcoming the last real obstacle to nucleus of a somatic cell – the microscopic into the House of Representatives in and Hua Hua cause for concern? human cloning, the scientific watershed depot that stores an animal’s genome – 2002. The Bill’s unification of human has prompted sober reflection vis-à- and inserted it into a nucleus from the cell cloning and embryo research under This is a case where the devil is very much vis the adequacy of Australia’s current of the individual they wished to clone. the same Act was hotly contested, as in the detail. Although the team embarked human cloning regulatory framework. It By using an electric current to fuse the many members of Parliament wished to on the same SCNT method used to create is contended that Australia’s legislative donor somatic cell genetic material and make a ‘conscience vote’ against human Dolly, the research journal detailed a scheme regulating human cloning, on the host cell, the resulting unified embryo cloning but supported certain forms of new technique of using two different 11 both the Federal and State level, is host possessed genetic material identical to the embryo research. In turn, the Federal sources of nuclei: cells from an aborted to two principal issues that have arisen as donor cell, allowing it to be placed into a scheme eventually took a bipartite form, macaque foetus and cells surrounding a result of poor legislative maintenance. surrogate for reproduction.5 Dolly, while consisting of the Prohibition on Human the eggs of an adult macaque. Through First, the current legislation fails to relatively innocuous as far as farm animals Cloning for Reproduction Act 2002 (Cth) exposure to various chemical signals address emerging cloning methods that go, incited fierce debate across scientific, (the ‘PHCR Act’) and Research Involving to assist in reprogramming the cells, do not fall neatly within the definition or religious, cultural and ethical sectors. Human Embryos Act 2002 (Cth) (the the team were able to produce newly 22 nomenclature of the statutory offences. Proponents of the practice appealed to ‘RIHE Act’). New South Wales, alongside formed embryos. With these primates 12 Second, medical practices of significant freedom of scientific inquiry and rebuked the other States , enacted their own sharing 98% identity with the human 23 social utility are being caught by blanket the idea of prohibiting scientific innovation, dual legislation, designing the Human genome , the Institute’s director, Dr prohibitions despite their longstanding particularly for burgeoning specialist Cloning for Reproduction and Other Mu-ming Poo, had no reservations in acceptance in society. By reference to the practices of medical and therapeutic Prohibited Practices Act 2003 (NSW) with addressing the elephant in the room, 13 features of the regulatory model adopted by utility. Such benefits included using the the purpose of “mirror[ing] offences” stating, “there is now no barrier for cloning the United Kingdom (UK), it is argued that SCNT method to supplant expensive found in the PHCR Act. These Acts primate species, thus cloning humans is

22 23 closer to reality”24. Even for those sceptical concern is unfortunately a trite one, as ameliorating the chances of the baby human cloning. of human cloning ever transcending the the House of Representatives Standing suffering from potential debilitating silver screen, the events in Shanghai Committee on Legal and Constitutional mitochondrial diseases. The UK The Committee’s mere four have an undeniable domestic relevance: Affairs expressed concern over the implemented this practice in 2015 after recommendations are a frightening it offers Australia an opportunity to turn “narrowness and technicality”33 of the draft twelve years of intensive research and testament to the huge regulatory gap that its neglectful gaze to its unkempt human definitions as far back as 2001. These diligent amendatory efforts to their must now be traversed before legislative cloning laws. It is argued that serious were echoed again in the 2005 Lockhart human cloning laws. The UK Parliament change can occur. This involves consulting consideration needs to be given to a Report, which referred to a NHRMC were able to modify their cloning the public on the prospect of mitochondrial more ‘responsive regulation’25 model, in review34 criticising the overly restrictive prohibitions for mitochondrial donation donation, forming a consultation paper, order to ensure that these landmark definitions of ‘human embryo’,35 ‘natural with relative ease through the ‘statutory referring the matter for advice to the moments for science can be met with fertilisation’, and ‘artificial fertilisation’. window’ that was deliberately left open in National Health and Medical Research incremental legislative adjustment, rather With considerable foresight, the NHRMC their Human Fertilisation and Embryology Council, and then having the Committee’s than regulatory hysteria. Granted, this noted that there were a number of Act 2008 (UK). However, under Australia’s report referred to the Council of Australia approach was clearly envisaged when emerging technologies that produced legislative framework, the mitochondrial Governments (COAG) Health Council introducing the legislative scheme, as a human embryo but did not fit the donation continues to obstinately violate for implementation into States and both the Federal and New South Wales procedural definition enunciated in the the s 15 Federal offence of developing Territories. What of those facing life- Acts contain ‘Review of Act’ provisions.26 Acts of involving DNA contribution from a human embryo containing genetic threatening consequences from lack of Under the Federal Act, the Minister both sperm and egg.36 In light of the material provided by more than two treatment presently? The Report’s final is required to initiate an independent Shanghai team’s unique technique of people. The Revised Explanatory recommendation is that, in the interim review of the operation of the Act every sourcing nuclei from an aborted foetus, Memorandum expounds the operation of (not forgetting this was a matter that the two years, with a report written every the ability for new scientific procedures s 15 as principally addressing cytoplasmic UK invested twelve years into researching), three years. This review is to account for to circumvent statutory definitions is transfer, however, opaquely addresses the Australia should “initiate dialogue with developments in technology in relation clearly possible. Henry Greely suggests possibility of third party mitochondrial the relevant authorities in the United to ART, medical and scientific research, that an ongoing regulatory authority must donation as “posing ethical concerns” Kingdom to facilitate access for Australian and community standards.27 True to form, be implemented to pass regulations and that are “not totally clear at this stage”.39 patients to the United Kingdom treatment a comprehensive report was produced change definitions as new technologies Thus, the legislative modus operandi facility”46. Criticised by submissions in the in the Lockhart Review of 2005, with in human cloning are discovered or has been to ensure the “the prohibition Report as advocating a form of “medical substantive amendments to the Federal current legislative provisions are deemed is drafted sufficiently broadly to include tourism”47, this proverbial ‘passing the Acts taking effect in 2006.28 But if science inadequate.37 And yet, when the belated other techniques, current or emerging”40. buck’ to the UK, who is yet to agree to the and Australian human cloning laws ever Heerey Review was finally triggered Such a strategy would be auspicious if the proposal, arguably represents the nadir did enjoy marching instep, it was certainly in 2010, the Report’s amendatory s 15 prohibition was ever reconsidered in Australia’s legislative accountability. short-lived. The 2006 amendments to the recommendations to the legislature in light of these emerging techniques, A rejoinder to this criticism may justify Federal Acts marked the last substantive seemed to be more soporific than a call however, without revision, it appears as the processes of public consultation reconsideration of its provisions, with to action.38 It is clear that legislative an outmoded plenary ban that is framed and medical administrative approval both New South Wales Acts lacking review needs to occur more frequently, far too broadly. As David Thorbun of as necessary to ensure regulation is amendment of any kind since 2007.29 and more significantly, the legislature Murdoch Children’s Research Institute legitimised by the community and the This 10-year legislative dormancy carries must be prepared to act on these notes, the mitochondrial donation process medical profession. Moreover, our courts especial weight when one considers the recommendations. “is not human cloning by any means, but and regulatory bodies are well equipped strides science has taken in this time: the procedures that are used overlap.”41 to apply the legislative purpose of the the discovery of enzymes that can turn A second major issue arises from the On 27 June 2018, the Senate Standing Acts in lieu of steadfast compliance any blood type to Type O30, the landing unrevised legislative scheme: the Committee on Community Affairs finally to statutory deficiencies. In response of NASA’s Curiosity Rover on Mars31, provisions overregulate practices that no released their anticipated Report titled to this, two points are worth making. and perhaps the paramount indicia of longer deserve to fall within the ambit ‘Science of mitochondrial donation and First, the Australian community have scientific progress over the last decade, of the Acts, notably innovative scientific related matters’.42 The Report is replete expressed a general consensus in favour the advancement in our knowledge of the methods that have earnt acceptance in with submissions from various experts of of mitochondrial donation for some time human genome.32 society. The most recent example of this medicine, biology, philosophy and ethics now. A recent survey indicated that 78% is the 2017 “three-person-baby” campaign confirming much of what was already of candidates answered ‘yes’ or ‘yes with As a consequence, a core issue has arisen for mitochondrial donation in Australia known: the inflexible Federal regulation conditions’ to Australia allowing children in the increasingly outdated statutory to combat life-threatening mitochondrial has created a “legislative barrier”43 through to be born from mitochondrial donation.48 definitions, as new nomenclatures for disorders. The process involves replacing its “blanket prohibition”44 that unjustifiably Consensus in support of this practice has scientific practice are beginning to produce the mother’s unhealthy mitochondria catches mitochondrial donation, despite it remained in this range for the last decade statutory misnomers. This (unanswered) with a donor’s healthy mitochondria, thus being a “conceptually distinct”45 practice to and has increased in recent times - a result

24 25 of the Australian public becoming research, compliance with the national Conclusion more informed of these procedures as licensing scheme is strengthened and the phantasmagoria fades away from ethical boundaries for developing Human cloning practices pose a steep task stigmatized phrases such as ‘three-person- research are fortified. Objectors to this to our legislature. However, the events in baby’. Second, insofar as our judiciary approach may see an impossibility in Shanghai demonstrate that for as complex can assist in the matter, we must ask the regulating issues that are still emerging and schismatic as cloning regulation can question: do we really want our courts or yet to exist. However, the current be, the issue is an important one deserving exposed to situations where they must regulatory framework in the UK offers of our continued attention. Given the apply the ‘spirit of the law’ on tenuous a sound example of a system that inadequacies outlined herein, it has been policy grounds? For anyone who has balances the features of flexibility and argued that Australia’s current regulatory cursorily skimmed the Boilermakers’ stability. Characterised as progressive framework for cloning practices has 50 56 Case , or is even remotely familiar with and scientifically liberal , the Human become manifestly outdated. This is seen the notion of the separation of powers, the Fertilisation and Embryology Act 1990 in the challenges new scientific practices answer is clearly a resounding ‘No’. Given (UK) has been commended for its forward- pose to outmoded statutory definitions the disparate common law outcomes in facing approach to embryo research, and nomenclatures, and the unaltered 51 IVF and ART law , one would have hoped while maintaining effective regulation sweeping prohibitions that now serve as this to serve as a cautionary tale for the of the prohibited practices associated a catch-all for socially accepted medical legislature re-entering the same medical with human cloning under the Human procedures. Viewed from the Antipodes, domain; for in this area, it is true, that Reproductive Cloning Act (UK). The Act the United Kingdom offers a front-running such issues are seldom elementary. The has been subject to regular amendment example of a responsive regulatory model task involves navigating legal, ethical and at least every two years, with a major that Australia must look to in creating a scientific fields with a sensitivity to the revision of the Act undertaken in 2008 legislative scheme that is agile to science’s values contained within each. To that end, to ensure contemporaneity with modern perpetual flux. In doing so, Australia Australia’s regulatory efforts should be views on the topic. Gorgarty and Nicol removes ‘regulatory chimera’ from its commended for presenting a united front conceive the UK’s regulatory approach vocabulary and ensures that if the birth between its State and Federal schemes as as one that “accept[s] that the traditional of Zhong Zhong and Hua Hua truly does to what values it has chosen to prioritise. legal paradigm of prescriptive legislation mark the epoch of human cloning, its laws is incapable of adequately regulating are not a relic of days gone by. However, as has been argued here, the technologies that are in a constant aim of the game is contemporaneity. A state of flux. In this arena, flexibility is responsive regulatory model must be warranted because it means the legislation adopted to ensure the merits of our is not encumbered by myopic emphasis legislation are not tarnished simply on process rather than outcome”.57 The because they address a different time on control mechanisms on this flexibility are the scientific continuum. As Sonia Allan52 largely ones of risk and proportionality, observes, the past reports and reviews which decrease undue administrative and have involved an expensive53 and overly bureaucratic costs and prioritise up-to- bureaucratic process that has yielded date regulation.58 If one silver lining can nominal legislative change. On the rare be gleaned from Windeyer J’s observation occasions that reform has occurred, of trailing from the rear, it is having the it has implemented regulation that way forward laid out for you. Australia “emphasise[d] fear rather than a balanced, only need look to the UK for an example responsive approach to regulation”54. While of smart regulation in the area of cloning ‘perfect’ regulation may be a chimera, practices, and accordingly has no excuse responsive and effective regulation for not following such steps in an effort to certainly is not. For instance, Ayres improve its own. and Braithwaite’s model of responsive regulation emphasises the importance of regularly updated educational guidelines and policies to ensure self-regulation is achieved at a base level.55 By clearly defining the legal landscape for scientific

26 27 In 2010 and 2011, the Independent including laws which change the law to Commission Against Corruption (“ICAC”) retrospectively affect the substantive rights conducted an inquiry into alleged in pending criminal proceedings.3 Mason corruption in NSW hospitals known J in R v Humby; Ex parte Rooney (1973) as “Operation Charity”. This led to the 129 CLR 231 unambiguously stated: convictions of sisters, Sandra and Michelle “Chapter III contains no prohibition, Lazarus, in 2014 for the offences of fraud express or implied, that rights in issue in and giving false and misleading evidence legal proceedings shall not be the subject during an ICAC inquiry, respectively. of legislative declaration or action.”4 Further, in Lazarus, Leeming JA noted that In 2015, the High Court’s decision requiring courts to apply retrospective in Independent Commission Against laws is not inherently repugnant to the Corruption v Cunneen (2015) 256 CLR 1 judiciary’s institutional integrity: “[t]o (“Cunneen”) found that ICAC only had the contrary, it would be strange if the the power to investigate corrupt conduct legislature were not empowered to enact which affected the probity of a public a law to undo the effect of a narrow function, not general corrupt conduct. construction of a statute by the High CONSTITUTIONAL LIMITATIONS Consequently, investigations where there Court.” 5 was no wrong doing on the part of the public official were beyond ICAC’s powers The critical question is whether the and therefore invalid.1 This included Validation Act is a genuine substantive ON THE LEGISLATURE’S ABILITY Operation Charity,2 and Sandra and change in the law, which is valid – or Michelle Lazarus immediately appealed whether Parliament had purported to their convictions in the District Court. direct the Courts’ exercise of its judicial discretion in pending proceedings, which The NSW Parliament acted quickly and is unconstitutional because it usurps a TO CHANGE THE LAW? passed the Independent Commission function belonging to the judiciary. Against Corruption (Validation) Act 2015 (“Validation Act”) which retrospectively In one view, it is arguable that the authorised all acts done or purported Validation Act is a genuine change in the to have been done by ICAC, including law which seeks to redress Cunneen’s Operation Charity. narrow construction of “corrupt conduct” in ICAC Act s 8(2). In another view, The Validation Act required the District in determining Sandra and Michelle’s Court, who would determine Sandra appeal against conviction, the Validation and Michelle’s appeal against conviction, Act required the District Court to treat to ignore the High Court’s decision in Operation Charity as valid – even though Joy Guang Yu Chen Cunneen and to retrospectively treat the investigation was beyond ICAC’s LLB V an otherwise invalid ICAC operation as powers. valid. Sandra and Michelle’s primary submission before the Court of Appeal of Outside the issue of retrospectivity, NSW in Lazarus v Independent Commission there are two main considerations to Against Corruption (2017) 94 NSWLR determine whether the Validation Act 36 (“Lazarus”) was that the Validation was an impermissible direction to the Act purported to affect pending criminal courts: firstly, whether the law applies proceedings, and so was invalid because ad hominem and has been tailored to the it interfered with the court’s judicial issues in the pending proceedings; and independence and institutional integrity secondly, whether the law interferes with under the Constitution. or usurps judicial discretion.6

At the core of Parliament’s legislative power is the ability to make and amend laws,

28 29 Ad hominem application intended for the Validation Act to apply limitation is intended to protect the However, as Leeming JA cautioned17, this universally because it retrospectively institutional integrity of the court and does not necessarily mean the Validation Ad hominem legislation identifies, authorised all acts done or purported to therefore has been limited to interference Act was “determinative” of Michelle’s impliedly or expressly, the person or have been done by ICAC before 15 April with the central element of judicial guilt or innocence in a way that was persons to which the law applies and also 2015 (the date Cunneen was decided), power; the final determination of guilt or an impermissible interference with the 9 affects the specific issues in the pending rather than any specific investigation. innocence. judicial process such as contemplated case. The case of Liyanage v The Queen in Nicholas. The Validation Act merely [1967] 1 AC 259 (“Liyanage”) provides a Despite the general application of the changed the legal characterisation of the clear example of ad hominem legislation. Interference with judicial discretion Validation Act, the Court of Appeal in facts which comprise the first element of After a failed military coup, the Lazarus nevertheless considered the extent the offence, and it does not “deal with Parliament of Ceylon7 passed temporary Whilst the ad hominem nature of a law to which the Validation Act interfered with ultimate issues of guilt or innocence” legislation (“the 1962 Acts”) to deal with is relevant as a threshold concern, it has the judicial determination of Sandra and because the prosecution must satisfy the 18 the prosecution of the coup participants. not been treated as determinative to Michelle’s rights. other elements of the offence. Therefore, A Parliamentary White Paper specifically invalidate legislation. The 1962 Acts in the Validation Act was also valid in its named the coup participants who would Liyanage singled out the coup participants, Sandra was convicted of fraud. As a result application to Michelle. be prosecuted under the 1962 Acts. but it also substantially affected the of Cunneen, the evidence obtained from Courts’ ability to conduct their trials in Operation Charity would be unlawfully A less obvious example is found in the usual course. The 1962 Acts changed obtained and so Sandra could ask the Conclusion Nicholas v The Queen (1998) 193 CLR the admissibility of evidence, altered the court, pursuant to Evidence Act 1995 173 (“Nicholas”) where the High Court length of sentencing, and retrospectively (NSW) s 138, to exclude that evidence. Compared to the 1962 Acts in Liyanage or majority upheld the impugned legislation. legalised the imprisonment of the The Court of Appeal applied Nicholas even s 15X in Nicholas, the Validation Act Whilst criminal proceedings against participants as they awaited trial. The and found that the Validation Act was not is far from an obvious case of legislative Nicholas were pending, the High Court Privy Council found that the 1962 Acts an impermissible judicial interference interference with the judicial function. in Ridgeway v The Queen (1995) 184 amounted to “a legislative plan to secure merely because it prevented the court Rather, it appears to be a genuine exercise CLR 19 found illegality in the conduct the conviction and severe punishment” from exercising a discretion to exclude of legislative power to change the law, of law enforcement officers during a of the coup participants, which was an evidence. especially because it applies generally heroin importation operation – the impermissible interference with judicial to affect the substantive rights of all 10 same operation which led to Nicholas’ power. The Court of Appeal also noted that the defendants who were involved in ICAC prosecution. Validation Act is a State law. Whilst the inquiries before 15 April 2015, one of Whilst the legislature has power to create institutional integrity of State courts which was Operation Charity. 13 Soon after, the Commonwealth Parliament or affect existing substantive rights in is protected, any limitation on the inserted s 15X into the Crimes Amendment pending proceedings by changing the legislature’s ability to change the law The starting position must be that the (Controlled Operations) Act 1996 (Cth) law, the conclusive determination of those would be less than the federal separation legislature has the power to change the 14 which provided that “the fact that a rights is an exclusive judicial function. of powers doctrine applied in Nicholas . law, even if that change retrospectively law enforcement officer committed an McHugh J’s dissent in Nicholas focused Hence Sandra’s case was relatively affects substantive rights in pending offence in importing the narcotic goods on the extent to which s 15X purported to uncomplicated, and there was no basis to criminal proceedings. The question 15 ... is to be disregarded”. The enactment of remove the court’s discretion to exclude distinguish the application of Nicholas . of whether such a change is an s 15X would have affected around half a evidence gathered during illegal law unconstitutional interference with judicial dozen defendants in NSW and Victoria.8 enforcement operation. The effect of s The Validation Act’s effect on Michelle’s power is complicated by the “indefinable In dissent, Kirby J found that s 15X was 15X on the applicable rules of evidence case was very different. Michelle was character of judicial power, which is a “highly selective and clearly directed at was likened to a purported direction as convicted of giving false or misleading core problem besetting the formulation 11 a particular individual or individuals”, to the outcome of the proceedings. This evidence during an ICAC inquiry – the of firm principles regulating the exercise both with respect to who and how the undermined the institutional integrity of very inquiry which Cunneen found was of judicial and what is an illegitimate 19 provision applied. The other judgments the court and was impermissible. unauthorised. Therefore, the result of interference with it.” For now, it may in Nicholas placed less emphasis on this Cunneen meant that the prosecution was be sufficient to say that if and when an consideration. The High Court majority disagreed that unable to make out the first element of essential or core judicial function has s 15X amounted to an impermissible Michelle’s offence; that she attended a been usurped by the legislature, such a 16 In contrast, the Validation Act lacks this legislative interference because it did not compulsory ICAC inquiry. change will be unconstitutional. ad hominem quality. It does not single out in fact interfere with the court’s conclusion 12 particular defendants, nor does it apply of the defendant’s guilt or innocence. The difficulty in Michelle’s case is that, specifically to the pending proceedings of Distinct from the fundamental separation but for the Validation Act, the prosecution the Lazarus sisters. Instead, Parliament’s of powers doctrine, here the constitution must fail in establishing the offence.

30 31 I went to school in Kings Cross, which was similar to that of other Australian meant that for six years on my walk to jurisdictions and Great Britain. In 1908, school, I passed one of the most infamous legislation was passed under the now brothels in Sydney, the Golden Apple. As repealed Vagrancy Act 1902 (NSW) that with anything that you are exposed to made ‘soliciting by women’ an offence. from a young age, I didn’t think much of it. Under this Act, any woman found to To most of my peers and I, brothels were be ‘a common prostitute’ was liable to just small local businesses that evoked imprisonment with hard labour for a a bit of a shocked giggle as we grew to term not exceeding six months.2 Under understand what occurred behind their the same Act, it was an offence for a male doors. New South Wales has some of the person to live knowingly off the earnings most progressive regulations with regards of prostitution, and for any person to sex work of any jurisdiction in the running a brothel.3 world. Since the radical reforms of 1979 decriminalising sex work, the legislation In 1979, the Summary Offences Act 1970 controlling prostitution in New South (NSW) was repealed and superseded by Wales has incurred significant controversy. the Prostitution Act 1979 (NSW), which MORAL PANIC AND In recent decades, legal frameworks contained provisions deemed by the regulating sex work have been amended a Government necessary to control the number of times in reactionary response to more sordid aspects of prostitution not the conflicting priorities of both the people otherwise subject to criminal law. Under and politics of New South Wales. Over the Prostitution Act 1979, it remained time, it has become apparent that legal illegal to; knowingly live wholly or in ECONOMIC GAIN: sanctions regulating what is commonly part on the earnings of the prostitution of referred to as ‘the oldest profession in another person, operate a brothel under the world’ do not eradicate or reduce the the guise of a massage parlour, sauna extent of prostitution, but rather, shape or bath house, allow such a business to the striction of the sex industry and the be used for solicitation, and publish any conditions under which sexual services advertisement indicating that a premises How the decriminalisation of solicitation and are sold.1 This article shall explore the were being used, or that any person was tumultuous history and ongoing debate available, for the purposes of prostitution. brothel-keeping turned sex work into an industry surrounding the legislative framework The offences created by the Prostitution governing sex work. Such reform has Act 1979 reflected the view that the been marked by oscillation between purpose of the criminal law should be to neo-liberal motivations for legalisation punish those who organised, promoted and the conservative impetus for control or profited from prostitution rather than resultant of moral outrage associated with sex workers themselves.4 Soliciting and prostitution. loitering offences were repealed because they discriminated against sex workers in Grace Lovell-Davis comparison to their customers.5 JD III The History of Legislation Regulating Prostitution in New South Wales Between 1979 and the promulgation of most recent reforms regarding prostitution and brothel-keeping in 2007, Sex work in New South Wales has had the legislative framework of New South a long and complex history framed by Wales has oscillated between the pursuit the continual push and pull between the of control through limitation of the liberal conservative desire to control prostitution, reforms of 1979, and the promotion of and the liberal desire to legalise it in the sex worker rights. Throughout this time, hope of securing better protections and contention primarily focussed on the act of conditions for sex workers. Until 1979, the brothel keeping. The 1988 case of Sibuse legislative framework in New South Wales Pty Ltd v Shaw (1988) 13 NSWLR 98

32 33 held that the Disorderly Houses Act 1943 freed the market to a certain extent, a planning policies can be appealed to in most need of reform relate primarily (NSW) enabled the Supreme Court to degree of tension between neo-liberal the Land and Environment Court, thus to the vulnerability of sex workers to declare a premises a ‘disorderly house’ ideals and the moral panic of regulating reducing the opportunity for the arbitrarily exploitation by organised crime and where those premises were habitually prostitution remains, impairing the restrictive control of sexual services human trafficking, as well as public health used for prostitution, whether or not genuine promotion of sex worker rights. premises.12 Further, by moving sexual concerns and discrimination. those premises were ‘disorderly’ in the Accordingly, the central areas in need services premises into existing regulatory ordinary sense of the term.6 In 1995, of reform pertain to the substantive planning schemes, local councils are Sex work is an industry that has long been the Disorderly Houses Amendment Act conceptualisation of prostitution as better able to care for sex workers in their tied to the dangers of organised crime and 1995 was passed, including provisions a legitimate profession, such as the jurisdiction by imposing health and safety exploitation of vulnerable individuals. that legalised brothels and living off the introduction of a standardised award requirements as well as security measures Whilst there is no doubt that some people earnings of a prostitute.7 The Act also for sex workers, greater emphasis on on particular premises.13 Finally, and working in the sexual services industry are amended the Crimes Act 1900 (NSW) occupational health and safety and most significantly, the framework now doing so voluntarily, there are certainly to abolish the common law offence of adequate anti-discrimination laws. in place conceives brothels or ‘disorderly individuals within the sector vulnerable keeping a brothel and related offences. houses’ as legitimate places of business. to exploitation. Significant concerns have Following the passage of the amendments, Significant ambiguity in the current been raised regarding the threat of human a brothel became a commercial business legislative framework has created Further, as with any place of business, trafficking in the sexual services industry. requiring local council approval under the substantial difficulty in prescribing the sexual services premises must comply However, this area is difficult to reform Environmental Planning and Assessment status of the law and demarcating the with the Occupational Health and Safety as the regulation of human trafficking is Act 1979 (NSW). Nevertheless, in 2007 responsibilities of relevant regulatory Act 2000 (NSW), entitling sex workers to the legislative responsibility of Federal the New South Wales government passed bodies with regards to the regulation of minimum safety standards and worker’s rather than State government.18 As such, the Brothels Amendment Act 2007 (NSW). sexual services. This is especially true compensation.14 Nevertheless, there are effective regulation requires commitment This legislation expanded the powers of in relation to sex work operating out of significant issues with regards to the and understanding from multiple levels of councils and the Land and Environment a brothel, as regulation depends heavily legal employment status of sex workers. government. Court to close ‘disorderly and unlawful on the discretionary directives of local The primary model used in the industry brothels’, and allowed councils to make councils in the design of their Local classifies sex workers as independent With regards to public health concerns, brothel closure orders that could be Environmental Plans (LEP) and control contractors.15 Financial arrangements are sex workers in New South Wales are effective within five working days as of local town planning, meaning that often made by sex industry businesses to better placed than most. A 2010 study opposed to the previous 28 days.8 attitudes and standards of workplaces reflect this relationship, for instance, by showed that New South Wales enjoyed the in the sex industry can vary drastically charging ‘rent’ for the use of rooms in the widest reach of health services targeting across New South Wales.11 workplace with the expectation that the sex workers throughout Australia.19 The decriminalisation of sex work in New sex worker will cover the overhead costs.16 Furthermore, New South Wales developed South Wales as a mechanism of control: Despite the difficulties that arise as As independent contractors, sex workers fairly robust mechanisms to ensure the Effects and Areas for Reform a result of the different standards of are precluded from certain entitlements health of sex workers during the AIDS restriction across each local council, there and legal protections provided to epidemic of the 1980-1990s. In 1989 The scheme currently in place New are a number of benefits that have arisen employees, such as sick leave, annual the Public Health (Proclaimed Diseases) South Wales has been characterised as a result of the current structure. While leave, WorkCover, and superannuation.17 Amendment Bill was passed, introducing as a ‘predominantly liberal or laissez- local councils may introduce stringent Additionally, as independent contractors, fines of $1,000 or up to 6 months jail faire approach’ to the regulation of regulations with regards to regulating sex workers are not covered under the Fair time for persons found to be recklessly sex work.9 Nevertheless, the aim of businesses selling sexual services, they Work Act 2009 (Cth), precluding them endangering others by spreading disease.20 the scheme has been to regulate and do not possess unfettered discretion in from the benefits enjoyed by employees In response to the AIDS crisis, condom control the industry; the location and the form or content of their LEP. Rather, under this framework. use became more widespread. By 1991, size of outlets, the conditions under local councils are required to take into 97.5% of female prostitutes reported that which workers are employed, and the consideration the perspectives of the As the decriminalisation and legalisation they insisted on the use of condoms at health and industrial safety standards local community and any authorities of sex work in New South Wales has work.21 Notwithstanding the significance obligated.10 Whilst most policy typically affected. Further, the Planning Minister developed as a result of neo-liberal ideals, of the State’s protection of sex workers characterised as neo-liberal tends to has a right to veto the implementation framing sexual services as a revenue- during the AIDS epidemic, much of the limit the ambit of control that the state of LEPs as they see fit, and are compelled creating industry, concern for the health regulation with regards to public health has over a particular industry, the New to ensure councils are not able to and safety of those providing services has and prostitution in New South Wales has South Wales framework places sex work issue undue blanket prohibitions on been relegated to the sidelines in practice. centred on ‘protecting’ the ‘mainstream’ under the strict purview of regulatory brothels operating within their area. The system in place has legitimised sexual population as opposed to the workers actors. Whilst the decriminalisation of As such, there are clear protections services as an industry, but not those themselves. This view seems to operate solicitation and brothel keeping has to ensure that any overly restrictive working in it. Critics contend that the areas on the incorrect stereotyped perception of

34 35 sex workers as “…creature[s] of the gutter anti-discrimination laws concerned and darkened back streets, with links to ‘sexual orientation or gender identity’, disease and vice”. Not only is this view which does not protect people from damaging and dismissive of sex workers, discrimination on the basis of their sexual it does not represent reality. Sexually activity, behaviour or labour.29 As such, the transmitted infections are increasingly fight to legitimise not merely the industry, common across all cross-sections of but those who work within it, is clearly far Australian society. As an inherent from over. workplace risk in the sex industry, reform is needed in order to protect sex workers as well as their clients.23 Conclusion

Sex workers often suffer from Although prostitution is now legal in New discrimination as a result of their career South Wales, it is contained in ways that choice. This issue was extremely prevalent seek to limit its operation as a normal during the 1980s AIDS crisis as prostitutes economic activity.30 Namely, the sexual were often blamed for spreading AIDS to services industry is controlled on the basis the ‘mainstream’ population despite there of the state’s need to ensure that sexual being clear evidence that the majority behaviour outside of the nuclear family AI AND of sex workers were not HIV positive.24 norm accords with the moral values of the Currently in New South Wales, there is an day. In consideration of the hodgepodge absence of anti-discrimination protections of legislation and regulation in New South for sex workers. Whilst the Queensland Wales, it is clear that the state is uncertain Anti-Discrimination Act 1991 (Qld) of how to balance its moral concerns with CREATIVE WORKS makes it unlawful to discriminate against its desire to create fiscal turnover, and someone on the basis of lawful sexual is uncomfortable with breaking away activity, the New South Wales and Federal from traditional, conservative views with Acts do not. As such, there is a need to regards to sex work. reform and consolidate the protections made available to people under the Controlling the beast through IP law Anti-Discrimination Act 1977 (NSW).25 In 2012 Prime Minister Kevin Rudd announced the enactment of a ‘Human Rights Action Plan’, which aimed to consolidate the disparate discrimination laws across Australia.26 Submissions in response to this plan included that of the Scarlett Alliance, a national organisation for the promotion of sex worker rights, who recommended the implementation Connor Jarvis of federal anti-discrimination laws LLB V on the basis of occupation in order to decriminalise sex work across Australia and address the barriers to access to human rights by sex workers.27 Despite such submissions, the only changes made regarding sex work in the Human Rights Action Plan related to child pornography, forced prostitution, and trafficking, and did not attempt to address the high levels of discrimination faced by sex workers.28 The only amendments made to Federal

36 37 Introduction law has been designed to afford rights systems which act independently, systems is forecast to increase from to such an author in accordance with autonomously, and create works with no 6% to 13% in 5 years.21 Similarly, the Works created by artificial intelligence natural law. As per the writings of Hegel, direction from a human have been held AI industry in the US is forecast to be systems do not satisfy the authorship Foucault and Locke, an artistic work not to subsist copyright. An AI system increase from $8.2 billion USD in 2013 to 22 requirements under current Australian is emanation of the personality of the utilises machine learning programs, $70 billion USD by 2020. 2 copyright law, and thus copyright is artist. In addition, rights conferred under which deduce connections within a incapable of subsisting in such works. copyright law incentivise an author to data set presented to it and produces an AI systems have proven that they are able Despite this fact, the technology behind create more works, which ultimately output that iteratively improves to some to produce artistic, musical and literary the creation of computer generated benefits the public and rewards the work metric. Using this technique, AI systems works, as creative as that of humans. works has improved beyond what was and creativity of the author. have been able to deduce connections The Next Rembrandt project by ING is an considered possible merely a decade ago. within data sets that may not have been example of the complexity in subsisting Poetry produced by computer programs Australian copyright law continues to discernible by humans, and produce copyright in CGWs. A computer program has repeatedly passed the Turing Test, require human authorship for copyright to works and create solutions to problems analysed over 300 artworks of Rembrandt 3 proving that “creative” and “original” work subsist in works. In the IceTV case the use surpassing the ability of human authors. Harmenszoon van Rijn, in incredible can originate from mere computer code. of “author” in sections 32, 33 and 35 of Where this occurs, the human author has detail, including the dimensions of the Artificial intelligence has been applied the Copyright Act 1968 was held to require no input into the final representation of subject of the portrait, height of the paint to widely disparate fields including human authorship. However where a the material form of a work. on the canvas and the pattern imprinted creative industries, banking and finance, person controlling a computer program through the brushstrokes. Experts scientific research, social policy making, directs and fashions the material form of As such, CGWs that are produced by in engineering, history and art were weapons development, espionage, health a work, copyright will subsist in the work, AI systems that are genuinely novel, involved in the creation of the computer 4 industries, transport and even the legal and be owned by that person. However, beyond the originality requirements of program. The output of the program was profession. The creation of new IP rights where a work is produced autonomously “independent intellectual effort”, will an independently produced, original in computer generated works can drive through a computer program, copyright not subsist copyright. I will limit further work that mimicked the style of the late 5 investment and innovations through the will not subsist in the work. discussion to this type of CGW. Whilst baroque master. Considering the large creation of economic incentives in AI there has not been a case that has dealt monetary investment in the project, it produced works and reward the creative In addition, for a work to be original, directly with such CGWs created by is unclear in whom any rights to the 23 endeavours of artists who use computer the author must exercise “independent intelligent AI systems, it is likely that work should vest. No issues with any programs. Computer generated works intellectual effort” toward the final the High Court will continue to limit copyright which may subsist in the 6 contribute to the cultural value of society, representation of the work. The originality copyright to human produced works in artwork has arisen. as do other creative works produced in requirement in IceTV have been held to line with the direction it has taken above. a more traditional manner. In addition, be well below the novelty requirements in For CGWs to subsist copyright it will be The Cybernetic Poet program is a computer 7 assigning responsibility to the actions of Patent law. However, merely expending necessary for legislative intervention on code composed by Raymond Kurzweil AI systems can address growing concern labour and skill has been held to be the subject. that is able to independently compose 24 about the unregulated actions of AI insufficient for copyright to subsist in a poetry. The program is given an input 8 systems, without involving questions of work. Hence where a computer program of poems written by an author. From AI personhood. Modification of existing exercises this independent intellectual The proliferation of artificial this, the program deduces connections 9 copyright law, whilst maintaining effort, copyright will not subsist. intelligence, computer generated between the structure, rhythm and coherence with the underlying rationales works now and into the future lexical choice of poems and produces supporting copyright can achieve these Australian copyright law has held that poetry in the style of the author shown goals and reflects the general trajectory of CGWs fall into two distinct categories, The continued development of the to it. The poetry over the Cybernetic Poet copyright law reform internationally. depending on the level of independence technological capabilities and applications was able to pass a Turing Test, where the of the AI system.10 Where an author of AI systems have seen an incredible poetry of the poet is presented to adult utilises a computer program as a tool growth in its application across a vast and children judges of different levels Computer generated works to produce the final representation, the array of industries. AI systems have of poetry experience, who attempt to under Australian copyright law computer program has been thought of as been implemented in the development identify the Cybernetic Poet’s work from analogous to an artist’s brush, a musician’s of poetry,11 music12 and artwork,13 the works produced by human authors. 14 25 The conceptual foundations underlying violin or a photographer’s camera. Works banking and finance industry, social They were unable to do so. Whilst the 15 16 modern copyright law can be traced to created by such computer programs have policy making, weapons development, Turing test is not a definitive criterion 17 18 the ideas of Romantic artists: individually been accepted as being authored by the espionage, health industries, for creativity, CGWs have proven to be 19 20 creative people who are the source of human using the program. transport and even the legal profession. indistinguishable with human works with consistent creative content.1 From the In Australia the percentage of businesses regard to their creativity. This indicates Statute of Anne and onwards, copyright However, CGWs that are produced by AI spending over $1 million AUD on AI that they are viewed by humans as

38 39 possessing the same degree of creativity of their own labour, consistent with the of copyright in works produced during Assigning both the rights and the as human produced works. David idea of the Romantic author. Under this the course of an employee’s employment. responsibilities of AI systems, will Cope produced a music generator that analysis, the rights associated with CGWs Assigning the copyright in works give recourse to persons with rights in functioned in a similar manner to the should be assigned to the AI system produced by an employee in the course copyright works that are infringed by AI Cybernetic Poet.26 itself. A programmer composes the code of their employment provides incentives systems. This will ensure that AI systems that brings the AI system into existence. for employers to produce works. In are not implemented to avoid copyright Finally, within the legal profession the From there, the AI system is the source addition, where a large number of people law as it currently exists.32 general consensus within the profession is of the creative thinking and production are required to produce a work, this that, like other professions, certain roles of the work. It is more natural to think allows the work to be disseminated, as a However, creating copyright in CGWs within the profession would be susceptible of the programmer as the facilitator of large number of persons entitled to the may inhibit the growth of the AI to automation. However, the creation and the CGW, rather than the author of the exclusive use of a work can prevent its industry. Because of the high initial cost presentation of oral argument to a jury work.28 effective exploitation. to producing AI systems, copyright that or judge is arguably the most human prevents the spread of new techniques element of the profession, and has been Under Australian and International law, Allowing the rights in CGWs to vest in and ideas may create monopolies within thought to be incapable of automation. no AI system has achieved personhood, the author of the computer code provides the industry. As such, the rights granted However, Douglas Walton has posited or has been granted the rights associated an economic incentive to implement AI over CGWs must be limited if they are that this may not be so.27 As with any with personhood.29 This can be explained systems to produce works and aligns with created. The rights in AI systems could be task, where evidential argument can be due to the difficulty in defining AI the notion that the person responsible limited both in their scope and duration decomposed into a logical structure to be consciousness, the limited value in for the creation or facilitation of a work to encourage innovation and prevent the analysed by AI systems, he opined that granting AI systems such rights and deserves to reap the benefits of doing creation of monopolies.33 it is possible use structural mapping as a how novel the technology is. It would so. Currently individuals or corporations means of teaching an AI system to argue be strange if the first set of rights to be who produce CGWs have no means to by analogy. With such a system, AI systems granted to an AI system were based in prevent other parties exploiting their International approaches to will be able to produce legal argument for copyright, as opposed to more widely works. Subsisting rights in CGWs will copyright in CGWs a given case. suggested human rights proposals under continue to drive innovation in this discussion. As such, there is a stronger rapidly growing field and create certainty The position with respect to CGWs AI systems are capable of producing argument that the rights associated where individuals or corporations seek under US copyright law is similar to the works and performing tasks, previously with CGWs should vest in the person to exclusively exploit produced CGWs, Australian position. The Feist34 decision thought to be solely the domain of human facilitating the production of the work. as per natural law notions. In addition, held that copyright protection will only intellectual endeavour. The growing complex AI systems are normally written be extended to works that are original scale and proliferation of the use of AI Currently CGWs are protected under the by many programmers, commonly in to the author and possess a modicum of and the value of the works they produce law of trade secrets and confidentiality, an employment setting, and involve creativity. Under the US copyright system, necessitates certainty in this growing which prevents the spread and use of large initial costs to implement. As voluntary registration is necessary to industry. This can be achieved through information and works by persons who such, it is coherent with the purposes of enforce copyright, however it is not a subsisting rights in CGWs. gain access to commercially sensitive copyright law to reward the entity that prerequisite for the subsistence of rights. information. This system of protection facilitates the creation of an AI system, The US Copyright Office has indicated evolved to protect business interests and and subsequently the work, as the entity that, on application, it will register an Incentives for subsisting rights and is designed to protect information and which brought the work into existence. original work of authorship, provided the responsibilities in AI produced works works that are not publicly available. This work was created by a human being.35 is an unsatisfactory method of protecting AI produced works have proven highly Whilst this is only the practice of the US Copyright law undertakes a balancing CGWs, as publishing a CGW to the world valuable to the public. Such works are Copyright Office, Feist places importance process between the rights of authors, prevents protection under this system. culturally valuable, as other type III on human authorship in CGWs, and it economic incentives and the benefit of This prevents the dissemination of CGWs. copyright works are. The production unlikely that copyright will subsist in the public. As such, for rights in CGWS to of CGWs should be incentivised for the CGWs in the US. be granted to any entity, there must be a Dissonance under a natural law framework same reasons as other type 3 works. positive reason for doing so. within the Australian copyright system is The position of CGWs is similar under tolerated in the context of the assignment Another issue posed by the growth of AI European and Canadian copyright law. Under a natural law analysis of of works in employment relationships.30 systems, is the responsibility attached Within European copyright law, copyright copyright, rights should be granted Despite the fact that an employee is the to their actions. If CGWs do not subsist will subsist in a work that is an author’s to the author of a work, as the author person who creates the work through copyright, they cannot infringe copyright own intellectual creation.36 Within should have control of their own exercising their own independent by the same reason. This has been the Canadian copyright law, copyright will creation and the sole right to the fruits intellectual effort, an employer is the owner position held under US copyright law.31 subsist in a work that is the product of an

40 41 author’s exercise of skill and judgement.37 the copyright system.43 In addition, such The rights scheme can be summarised as Statutory schemes under European rights should be limited to a disseminator’s follows: copyright law have placed emphasis on a rights. These rights would incorporate human requirement for authorship. The a right to copy the work, and a right to Ownership A person who facilitates importance of moral rights in European communicate the work to the public. This the production of a law may have influenced this decision. would avoid the unsatisfactory system of CGW is the owner of any This is the position in the Canadian protection currently utilised under the 39 copyright subsisting in the Copyright Act. law of trade secrets and confidentiality. work. The only country that has extended Rights to CGWs would vest in the person copyright protection to CGWs is the UK. who facilitates the work being produced, Duration 20 years Under the UK Copyright Act40 the author that is the programmer. This could also be of a CGW is the person who undertakes a business which provides the necessary Rights 1. To make a copy of the the necessary arrangements for the employees, resources and direction to CGW, whether manifested creation of the work. The provision is produce large scale AI systems. This physically or digitally; quite clear and is yet to generate much will provide incentives for businesses case law, however it is clear that copyright to invest in AI system by allowing the 2.To communicate the protection is available for CGWs.41 exclusive exploitation of produced works, CGW to the public. increasing the production of CGWs and Considering the proliferation of CGWs and improving economic efficiency were AI their value, legislatures across the world systems can be deployed. will have to define the rights associated Conclusion with CGWs to promote certainty within Limiting rights in CGWs to disseminators this emerging industry. I predict that as rights would only protect the final output The current position of CGWs under this occurs, more states will assign rights of an AI system rather than the method Australian copyright law is unsatisfactory. in CGWs, as in the UK. This will require of producing CGWs beyond a computer 44 The focus on authorship in Australia is the a principled approach that balances the systems protection as a literary work. only impediment to copyright subsisting rights of all stakeholders and maintains This will limit the stifling of innovation in CGWs, as CGWs have proven to satisfy coherence with current Australian in the AI industry and promote the the originality requirements under copyright law. dissemination of CGW themselves. Australia, US, Canadian and European law. The creation and proliferation of Finally, the duration of the disseminator’s A framework to adequately protect CGWs into the future is only going to rights suggested for CGWs should be increase. A principled approach to the the intellectual property rights of relatively short. I suggest a term of 20 human and machine authors assignment of rights in CGWs is required years from the date of publication of the to balance the interests of stakeholders in work. The shorter time scale of the right the AI industry. Thus, I posit that providing an economic reflects the pace at which AI industry is incentive to produce AI systems and CGWs innovating, and is likely to innovate into I suggest that legislative intervention would benefit the public by improving the future. The works produced may be should create rights in CGWs and should consistency within Australian copyright quickly superseded and their value may be assigned as per the assignment of law, increasing certainty in producers of diminish with time, faster than other rights in employment relationships. This CGWs and increasing the proliferation of part III works. maintains coherence with the assignment such systems. Rights under CGWs should 42 of rights under current Australian fall under part IV of the Copyright Act , copyright law. In addition, limiting the as such rights do not currently require rights assigned to disseminators rights human authorship. By assigning rights will promote investment and innovation as though an AI system is the employee in the AI industry, while limiting the of the programmer, the copyright formation of monopolies that may result system does not have to radically from assigning the wide rights associated change to adapt to changing technology with part III works in CGWs. and does not create a dissonance within the assignment of rights under

42 43 Australia prides itself on its welfare Foundational framing system – few months go by without a - dependency and burden public figure invoking their pride in ‘our generous safety net’. Indeed, our welfare Alongside ‘generous safety net’, ‘welfare spending constituted 9.5% of GDP in dependency’ is perhaps the most common 1 2015-16, representing 35 per cent of phrase in Australian welfare rhetoric. In 2 the Australian government’s expenses. the last year, the term has appeared in Generosity, however, is defined by more the Senate and House of Representative than expenditure. It is also a matter of Hansard over 60 times. In the debate attitude and values, a framework through leading up to the passage of the Bill, which individuals are perceived. Thus, reducing intergenerational welfare to determine whether we truly possess dependency was explicitly invoked as a a welfare system that is generous to the driving force behind reform. The ‘cycle of people whom it aims to protect we must welfare dependency’ was framed in these assess the language we use in assigning debates as a force which will ‘rot’ recipients value and meaning to the various actors SAFETY NET OF unless the government helps them ‘break that constitute this system. free’.7 These metaphorical concepts create a powerful image – that of dependency as Language gives us something financial a kind of prison. The implication is that figures can’t – the specific ideologies that as prisoners of dependency, recipients we use to constitute the world around us. lack agency; they are ‘encouraged’, SUPPORT OR WEB Representations of welfare recipients in 8 ‘helped’, and ultimately passive. Implicit Parliamentary speeches, legislation, and in this framework is the assumption that case law have a performative dimension, recipients are disempowered through creating the very idea of a ‘welfare the disincentivizing effects of welfare 3 subject’. To comprehend a thing we must payments and it is the role of the name it, and in naming it we activate our government to help them rediscover their OF CONTROL: preconceptions and assumptions about agency by providing the combination the way the world works. The group that of nudge factors that will result in does the naming is significant as it is their employment.9 This in turn implies that assumptions that come to structure the it is not structural or societal factors language we use to talk about something which prevent people from exiting 4 Discursive dimensions of Australia’s social security law and therefore the way we understand it. welfare, but rather the agency-reducing effects of welfare itself. Those in receipt It is from this foundation that we can of income support are therefore cast as begin to explore the discourse applied inherently devoid of agency and in need to welfare recipients. As a group that of government control. Citizens are does not wield public power, recipients therefore treated as powerless ‘until they are the subjects of discourse rather than have acted in a way that the government its creators – they are constituted as an feels is ‘active’’.10 The first act of agency objective, fixed category through the ‘elite activation is the labelling of recipients framing’ applied by legislators.5 When we Anastasia Radievska themselves – in the Amendment and in examine this framing, the predominance case law, they are ‘jobseekers’, defined LLB III of generosity seems to fade. Rather, as I by the pursuit of work. Where they explore in this article, it is a rhetoric of fail in this pursuit, they are failing the control and punishment that dominates taxpayer, a discursive category cast as the framing of social security law, a separate from the jobseeker despite the rhetoric that is exemplified in the Social fact that those on welfare continue to pay Services Legislation Amendment (Welfare taxes such as the GST. The implication Reform) Bill 2018 (‘the Bill’) that was of ‘jobseeker’ is that there are jobs that passed by both houses in March this year. will be found, that it is just a question of actively seeking them – when no job is

44 45 found, the above discourse leaves no room between them and the ESP. In Housego14, them obtain gainful employment’. The capable of an objective definition that for the consideration of structural effects, the claimant ended an interview with the crucial shift from the original ICESCR supports the presupposition that ESP instead individualizing all responsibility. case manager after she was accused of wording is the omission of the word activities are a more appropriate form of deliberately missing a job interview; in ‘freely’. Indeed, recipients’ freedom to participation than attempts at growing Why does this positioning matter? To Butler15, the claimant, who the Tribunal choose their employment is significantly one’s own business. The perceived answer this question we must return to accepted was ‘keen to work’, pointed to a restricted through the effects of agency- neutrality of the phrase therefore masks the constitutive power of discourse. If number of actions by officers where were denying discourse. its symbolic ordering of the recipient’s the way we talk about something frames ‘unhelpful and insulting’. In both of these agency and initiative as less ‘appropriate’ our understanding of it, it also frames cases, the escalation of tensions led to The requirements to which recipients or worthy than that of the decision- the way we approach it. In the realm of recipients missing interviews with their are subject under their Employment maker. welfare, discourse doesn’t exist solely in case managers and incurring financial Pathway Plan (EPP) are determined in Parliament or in legislative instruments – penalties as a result. Here, the influence reference to what the Secretary regards Although EPP requirements are subject it is powerfully present in the everyday of the work-avoidance presumption as suitable for them.19 Further, an 8 to the Secretary’s discretion, the Social interactions between recipients and is starkly highlighted. Although 63% week non-payment penalty applies for Security Act provides that a plan that the representatives of the safety net.11 of those receiving Newstart exit the recipients who voluntarily leave a job is in force may be varied in negotiation In Australia, those on unemployment payment within 12 months16 and job- the Secretary regards as suitable.20 with the person.25 This seems to give the payments are managed by independent search motivation can remain high Recipient requirements are therefore at recipient some agency, in allowing them employment service providers (ESPs), who even in conditions of generous welfare the discretion of the Secretary, who must to negotiate the conditions that will be are contracted by Centrelink to oversee receipt17, the dominant discourse treats nevertheless take into account matters applied to them through the change of an obligation enforcement. Recipients sign income support recipients as inherently such as education, skills, age, the local already-signed plan. In Kronen, however, an Employment Pathway Plan agreement unworthy of trust. labour market and length of travel time the Tribunal confirmed that in the scheme with the ESP that outlines the activities needed to comply with the requirements.21 the right to negotiate ‘could be illusory in that they are obligated to pursue in The presumption that recipients must be quite come degree’.26 This illusory nature seeking work. Working within a specific Creating agency, destroying agency cajoled into work, however, comes up becomes especially important in the legislative and cultural framework, ESP against their real-life agency in practice. context of the practice history of many case managers reproduce the assumption In designing the welfare system on the Select AAT cases reveal the way in ESPs. Although contractually obligated to that the agency-disincentivizing effects basis of preventing welfare dependency, which Secretary-determined activation provide services that increase recipients’ of welfare will cause recipients to have the assumed lack of recipient agency requirements in fact constrain the drive employment prospects, ESPs have been an attitude of work-avoidance. The is made central to benefit provision. of certain recipients to become financially found to engage in ‘cherry picking’, foundational distrust towards recipients This is reflected in the high level of independent through their own business. in which hard-to-place recipients are is reflected in then-Minister for Family conditionality welfare recipients face, In Craven,22 a 62-year-old man who spent offered the minimal or cheapest services and Community Services Kevin Andrews’ with those on the Work for the Dole stage most of his time working to expand a by providers while money is re-directed direction that case managers should no of the unemployment benefit subject to not-yet profitable, but growing flower towards those more likely to generate longer accept medical certificates as up to 50 hours of activities per fortnight company sought to have this self-assigned an employment outcome, by which ESPs sufficient evidence of a health problem and stringent reporting requirements. The activity taken into account in his EPP, as are paid.27 For many recipients, such that prevents recipients from achieving justification is that these conditions enable it had previously been prior to legislative a practice would be difficult to prove a requirement, doubling the rate at recipients to obtain gainful employment, changes introduced in 2009. His new – directly challenging it, meanwhile, which medical certificates were rejected as exemplified in the amendment that EPP sought to impose weekly voluntary could lead to an accusation of refusing from 2003-2004.12 The experiences of makes income support payable only from work and fortnightly attendance at a ‘suitable’ activities and thus the incurring recipients further illuminate the suspicion the date a recipient attends an interview ESP – despite admitting that Mr. Craven of a participation failure. Stearman and they face – as one recipient recalls: with an ESP case manager rather from the ‘may be right when he claims that Secretary28 confirms that a high level date of qualification. visiting the [ESP] was not a productive of dissatisfaction with the quality of ‘...there was a presumption… that you are use of his time’,23 as they showed no the service of an ESP is not relevant in not wanting to do anything, you’re a lazy Referring to the right to gain a living by interest in assisting him with his self- examining whether a recipient took work which the job seeker freely chooses employment aspirations. The Tribunal reasonable steps in complying with person or you’re a dole bludger… I came 29 away really, really angry.’13 or accepts, considered an inherent part Member nevertheless concluded that an activity agreement. In Artner , of human dignity under Article 6 of the such visits were justified by the ‘needs the applicant sought to challenge a ICESCR18, the Bill states that the measure of society, which requires an appropriate participation failure. The failure was The cases brought by recipients to the encourages unemployed Australians expenditure of public money be spent on recorded after he attended a workshop Administrative Appeals Tribunal reveal ‘to engage with their right to work by social security benefits’.24 In this phrase, in which he realised that 99% of the this sense of distrust and disrespect as connecting quickly with employment the ‘needs of society’ and ‘appropriate information was identical to a jobseeker foundational in the disputes that arose services providers that are there to help expenditure’ are given as neutral terms course he had done 12 months ago. He

46 47 requested a copy of the further material alone can result in the ‘diversion’ of recipients is inherently less worthy filters that beneficiaries will not receive to be handed out over the two-day period, vulnerable individuals into dangerous down into the everyday interactions payment pending the outcome of any but the presenter refused. Artner was places and activities, making them a and decisions of the system. Honneth44 judicial review regarding cancellation50– subsequently kicked out of the workshop ‘high risk strategy’.37 argues that the experience of being for many, such a financial burden for having his (unconnected and devalued has profound psychological would prove too heavy, encouraging unobtrusive to his hearing) earphones in The stated aim of the Amendment, effects, including the reduction of unquestioning compliance. It seems during the presentation. In considering however, is not to simply increase what individuals see themselves as inevitable that we will continue to call his behaviour, the Tribunal concluded compliance – rather, it is to encourage capable of achieving. AAT cases seem ourselves a generous nation and pride that the irrelevance of the content of the greater workforce participation and to confirm this effect – in Roberts45, for ourselves on the financial extent of our workshop did not amount to a ‘reasonable self-support through work.38 In regards example, the recipient felt that the ESP safety net. However if we wish to do so excuse’ for the participation failure.30 to encouraging work or study, the arrangements were wrong for him, tried honestly, we must consider the way the The presumption in this application of data is less than promising. A 2009 to get them changed without success, nation speaks about its most vulnerable the legislative framework is that the Swiss longitudinal analysis found that and felt ‘messed around’ and ‘hounded’ individuals. It is these words that become activity of the ESP is worthwhile and the sanctions lowered the probability of by Centrelink to the point where he the Australia encountered by welfare recipient thus has no right to object to it – sustainable employment over time.39 become discouraged and defeated. The recipients – an Australia that increasingly indeed, only 20% of frontline staff report A comprehensive 2018 review of fact that a number of AAT cases suggest distrusts, controls and punishes, rather that the jobseeker’s preferences are very welfare conditionality,40 finds that such the presence of undiagnosed mental than supports. influential in their choice of activation conditionality was largely ineffective illness as a contributor to participation measure.31 Both in its drafting and in promoting personal responsibility failures indicates that individuals with practical application, the Act therefore and paid employment. Alongside the mental illness are especially put at risk leaves little room for the agency of structural limitations that prevent its by this devaluation, with 45 per cent of recipients. effectiveness, the authors point to the respondents reporting mental ill health unintended effects of conditionality – in found to be sanctioned in a UK study.46 What does this framework mean for considering the specific impact on agency, With competence and autonomy being the 2018 Bill and its attendant goal of they signal the importance of intrinsic key both in self-worth and labour market supporting the vulnerable, encouraging motivation. In contrast to extrinsic achievement,47 it is difficult to see how those capable of work or study to do so, motivation based on coercion, intrinsic the systematic devaluing of welfare and reducing intergenerational welfare motivation stems from autonomous recipients’ agency will transform them dependency? The key reforms of the desire – this form of behaviour driver into responsible and active citizens.48 Bill only further constrain the agency fosters long-term engagement by meeting of recipients, with provisions barring individuals’ psychological need for those aged 55-59 from submitting autonomy and competence.41 Evidence Conclusion their volunteering activities as part suggests that when interactions with of required participation.32 A new an agency are perceived as threatening What can we then make of the original ‘targeted compliance framework’ will and highly controlling, the agency loses question of Australia’s welfare generosity? mean that for every failure to meet a legitimacy in the eyes of the individual, On a discursive level, it is difficult to requirement, job seekers will have their undermining intrinsic motivation to describe the welfare attitudes of the income support payment suspended33 – engage.42 In applying a legislative regime Australian safety net and its attendant suspensions will apply to failure to attend that considers all welfare recipients as social security law as generous. In fact, as or be punctual for an appointment, lacking intrinsic motivation, the current we have seen, the principles shaping the failing to follow up on a job referral or framework of extrinsic punishment risks design of the welfare system are those of unreasonable behaviour that prevents destroying the intrinsic motivation to control and punishment, aimed at guiding the purpose of the appointment. Certain pursue employment that many welfare what is seen as an inherently ‘failed’ studies corroborate the claim that these recipients in fact possess.43 Where population to the right mode of behaviour. measures will bring a higher level of individuals are treated as lacking basic Indeed, the Bill’s expansion of payment compliance, with the threat of sanctions agency, it is likely that they will act as such. suspensions to every participation found to be instrumental in increasing On the level of motivation and supporting failure further establishes the threat of work programme participation34 and the vulnerable, it is hard to disregard the government punishment as central to the job search activities.35 Other studies, way an attitude of disrespect is woven lives of welfare recipients. This ‘secret penal however, find that effectiveness is into the welfare framework. As we system’49 applies harsh penalties to minor contingent on the provision of intensive have seen, the fundamental assumption offences with little transparency, oversight and multi-faceted support36 – sanctions that the agency and decision-making of or accountability. The Bill confirms

48 49 The vast majority of Australians support it62 SOCIAL SERVICES LEGISLATION AMENDMENT (WELFARE REFORM) BILL 2018 But they don’t support simple redistribution to those who will not apply their own effort will not improve their own lives63

The most important thing Like recognition that I have a brain is that these changes support those and I can make choices64 living in hardship and I don’t have to respect you but I chose to respect you and help them break free and I have just made it my personal goal of the cycle of welfare dependency51 to get the person I have to deal with to smile ‘Isn’t it hot or aren’t you glad it’s nearly the weekend or See, I am damned both ways, nearly four o’clock?’ 65 I’ve already worked a lifetime and then to laugh brought up a family and even if one’s efforts it’s degrading52 -- to maintain self-esteem are successful the question of justice Should they fail is whether the burden is fair66 they may be subject to the targeted compliance framework payment suspension has proved effective in ensuring re-engagement53

I mean, it’s like being bullied If you don’t do that, we’ll sanction, everything is sanction, sanction, sanction54 never has the government asked me what I need55 There will be no waivers for non-payment or preclusion periods serious penalties waived provide no deterrent56

Rent, bills - something had come up, like I have got an elderly mother and all the rest of it and you are doing other stuff and you think Oh, I haven’t reported57 They have chosen not to engage with the specialist employment services that are there to help them obtain gainful employment

Mentally, they really hold it over you59 when you walk into that office I’ve always felt like a second-class citizen60 I know I shouldn’t probably internalise it, but you can’t help it61

50 51 Autonomous vehicles are no longer There are two major privacy interests exclusive to the realm of science fiction, relevant to discussions about autonomous but rather are an impending reality. The vehicles. Firstly, there are practical introduction of autonomous vehicles, concerns about the ways in which which are vehicles capable of navigating personal information is being shared and their surroundings without human input, stored.3 The introduction of autonomous will inevitably carry significant social vehicles is likely to bring with it the implications – radically changing the storage of unprecedented amounts of landscape of society from macroeconomic personally data, including an individual’s issues of employment to the every-day present location, the routes they have flow of traffic. This imminent change travelled, and their intended destination. raises a range of legal questions that Of particular concern is the likelihood must be answered before the large-scale of large-scale collection of data, which implementation of autonomous vehicles. has the capacity to use frequently visited This paper will focus on one such locations to construct a realistic image of question; the relationship between state the individual’s tastes and preferences.4 If regulation of autonomous vehicles and the creation of such “user profiles” were the freedoms of their users. It will argue allowed, the infringement on individual WHEN THE CAR in favour of a cautious approach to the privacy would not be limited merely to implementation of autonomous vehicles the collection and transfer of the routes that gives adequate consideration to an individual travels, but would also individual privacy. extend to accessing more intimate details about the users of autonomous vehicles STARTS TO DRIVE YOU: – ranging from their hobbies, to their I. Autonomous Vehicles and favourite type of cuisine. Whilst, on the Privacy Concerns surface, such technology seems similar to the data collection systems of technology Although there is no constitutional such as Google maps; there are important ‘right to privacy’ in Australia, Australian distinctions to be made. Most importantly, Privacy Rights and Government Control law gives significant consideration to whilst most existing technology allows in Autonomous Vehicles individual privacy interests. Most notably, you to periodically enable data sharing, limitations are placed on Australian and data collection in autonomous vehicles Norfolk Island governments’ ‘and private is likely to be constant. Given their corporations’ collection of data through capacity to collate information from all the Privacy Act 1988 (Cth), which “focuses autonomous vehicles, it is feasible for on the access and control a person has over government agencies or corporations their own personal information”.1 The to access an unforeseen “concentration Privacy Act contains a list of ‘Australian of information” about users and Privacy Principles’ (APPs), which outlines subsequently exercise “power over large Pranay Jha how government agencies (amongst numbers of individuals”.5 LLB III other entities), must handle personal information.2 These APPs include Secondly, autonomous vehicles impact individual’s rights to access and control privacy interests from the perspective of their personal information as well as of personal autonomy.6 The capacity to emphasising the importance of keeping control who is aware of an individual’s personal information secure. Therefore, location and their intended movements it would appear consistent with the are closely related to the exercise of established principles of Australian law autonomy. Insofar as autonomous for Parliament to give serious attention vehicles share information about to privacy rights when regulating intended destinations with third parties autonomous vehicles. and with other vehicles (e.g. for the purposes of traffic co-ordination), they

52 53 constitute an infringement of ‘autonomy attacks has also lead to concerns about the However, surveillance through CCTV would restrict individuals’ abilities to privacy’. The consequence is the cyber-security of autonomous vehicles.7 If or GPS trackers, which require law move and act freely and thus similarly individual no longer has absolute control terrorists are able to hack numerous self- enforcement to locate an individual’s shape their behaviors by, for instance, over the freedoms associated with their driving cars, there is the possibility of vehicle and attach a tracker, are making them fearful of travelling freely own movement. subjecting society to large-scale terrorist not comparable to the constant and or to certain areas. If this is the case, attacks. As a countermeasure to this unrestricted surveillance of autonomous both the overuse of surveillance and its Of course, those in favour of the concern (amongst others), cyber security vehicles. Moreover, the concern for complete abandonment would lead to introduction of autonomous vehicles may experts have sought to develop methods of autonomous vehicles is not only related intrusions on users’ freedoms. Therefore, argue that an individual can easily be anticipating and preventing cyber attacks to the degree of additional power that legislation relating to autonomous given the choice as to whether they want on autonomous vehicles. Problematically, governments have but how users of vehicles should not merely be ‘weighing their information shared or not. However, most of the existing cyber-security autonomous vehicles feel about that up’ the trade-off between individual as the functioning of autonomous methods require the body responsible additional power. In United States v Jones, privacy rights and collective safety. vehicles relies on information sharing for dealing with security attacks to Justice Sotomayor argued, “awareness Rather, it should aim to enhance both both between cars and (most likely) some constantly access personally identifiable that the Government may be watching sets of rights by limiting government central government system, in reality the data.8 This leads to two intrusive forms chills associational and expressive access and use of information to what is choice posed to the individual is between of government surveillance.9 freedoms”.13 Whilst it may be true absolutely necessary in providing a sense having their autonomy privacy violated that autonomous vehicles do not grant of security for users. or simply not using the autonomous 1. Targeted Surveillance governments a noticeably larger power vehicle to begin with. In the foreseeable to surveil citizens, they certainly have an 4. Traffic Coordination future autonomous vehicles may be so Firstly, measures allowing for this impact on how “free” those citizens feel. and Misuse of Data heavily integrated into society, that they form of data collection significantly become a necessary part of people’s lives increase the capacity of governments 2. Mass Surveillance As the global population rapidly akin to an iPhone. If this actualises, then to engage in the targeted surveillance increases, metropolitan cities have borne the choice posed to individuals would be of individuals.10 Although the purpose As stated above, effective mitigation of to consequences of increased traffic between having their autonomy violated of constant access to data may be to cyber-terrorism will require governments on underdeveloped infrastructure. or not using an essential feature of modern prevent terrorist attacks, it can also be to have the capacity to constantly The consequence of this, particularly society. Subsequently it is arguable that, quite easily used by governments “for access personally identifiable data. This in Sydney, has been an exponential by the nature of these circumstances, the invisible targeted surveillance”. In recent creates the possibility of governments rise in traffic, which poses significant individual would be coerced into opting times, Western governments have been engaging in mass surveillance involving inconvenience to local citizens. In to share their information. widely criticised for their arbitrary and the indiscriminate and comprehensive this context, autonomous vehicles are excessive use of cyber surveillance (see collection of data of all users.14 This appealing, as they provide governments e.g. surveillance programs run by the form of surveillance is suggested to have with the capacity to undercut congestion II. Autonomous Vehicles and Five Eyes Intelligence Alliance/Snowden a panopticon-like effect on individual by coordinating vehicles on the road.16 Public Interest NSA scandal).11 Given this, there are behaviors. A significant amount of However, this process would require legitimate concerns about any technology behavioral philosophy suggests that autonomous vehicles to share data The implementation of self-driving that would further empower government where individuals are aware of the with each other about intended routes, cars will undeniably constitutes an surveillance of citizens. constantly possibility of being watched, preferred arrival times etc. Hence infringement into individual privacy. they are more likely to conform to traffic coordination would require Importantly however, rights to privacy Proponents of the aforementioned “expected” social behaviors – regardless governments to engage in large-scale are not absolute and laws surrounding cyber-security measures may argue that of whether they are actually under data collection that might subsequently autonomous vehicles should also be individuals travelling by car are already surveillance or not.15 Subsequently, be used to construct consumer profiles. sensitive to public interest concerns. subjected to widespread surveillance the constant surveillance of individual’s Allowing third-party access to such Therefore, the aim for legislators should through, for example, CCTV and speed amounts to exercising power and control information could lead to situations be a framework of laws which both cameras. Additionally, governments over them. where individual’s movements are respects the idea of individual privacy, already have access to GPS tracking, manipulated based on their tastes and whilst also allowing autonomous vehicles which serves a similar purpose in terms 3. Balancing of Rights preferences.17 For example, providing to serve a vital public interest. of accessing an individuals travel history a fast-food company with information and current location. Therefore, the Whilst individuals have interests in about an individual’s visits to similar additional surveillance powers provided movement and association free from restaurants would allow them to target A. Surveillance and Cyber-Terrorism by autonomous vehicles will be marginal government control, there is also a advertising to that individual, or even at best.12 collective interest in a secure society. pay to have that autonomous vehicle take The recent use of vehicles in terrorist Arguably, the threat of cyber-terrorism routes that go past their restaurants.

54 55 Importantly, the aforementioned harm does not arise merely from data collection. Rather, it is the consequence of how that data may be used. As various government services (such as Medicare or tax) have moved online, governments have become responsible for the collection and storage of personally identifiable data. If governments opt not to privatise traffic coordination and place strict limitations on third party access to large-scale data, it is unlikely that autonomous vehicles will necessarily cause harmful intrusions into privacy. III. The Path Forward FAKE PORN: Existing privacy legislation is insufficient to cover the wide range of privacy interests that are infringed upon from the unrestricted introduction of autonomous ‘FAKE NEWS’ TAKES vehicles.18 Whilst some elements of autonomous vehicles resemble existing, permissible intrusions into privacy (such as speed cameras or CCTV), the comprehensive nature of data collection A DYSTOPIC TURN and its powerful capacity to create user profiles is largely unprecedented. Given this, specific legislation would be required to deal with issues of data collection and storage in autonomous vehicles. This paper makes the following recommendations for any such legislation: • Personally identifiable information should be encrypted to ensure basic anonymity; Deaundre Espejo • Except where absolutely necessary, LLB II governments should carry out the task of collecting and storing personally identifiable data; • Strict and specific conditions should be established for governments to engage in practices of surveillance. Such conditions should require some sort of overwhelming public interest; and • The commercial trading of user information should be prohibited.

56 57 A video has been circulating around the Johansson and Emma Watson are notion of truth.6 resulting from the publication of internet as of late. It features a young among the most watched, attracting deepfake videos. Owners of copyright in woman, completely undressed, running over a million viewers.2 But we’re now Combined with cyberattacks, deepfakes films, sound recordings, broadcasts and her fingers suggestively through her beginning to see deepfakes being utilised threaten the stability of economies and published editions have the exclusive bleached blonde hair. She turns around as a mode of political criticism. In January government regimes. In April 2013, right to copy their material under the to face the camera and instantly, her 2018, an actor’s portrayal of Adolf Hitler hackers took control of the US Associated Copyright Act 1987 (Cth).8 Undoubtedly face is recognisable. It’s actress Scarlett was superimposed onto the face of Press’ official Twitter account and tweeted some deepfake videos, particularly Johannsson. Only, it isn’t, it’s a digital Argentine President Mauricio Macri.3 “BREAKING: Two Explosions in the White those that are derived from copyrighted reconstruction of her. With the upsurge of Although the use of deepfake technology House and Barack Obama is injured”. In photos and videos, will infringe these the ‘fake news’ phenomenon, where the is very much still in its early stages, the two minutes following that tweet, the laws based on their modification and line between what is fact and fabrication the often crude and sardonic results of US stock market temporarily lost almost republication. The tort of defamation is becoming increasingly ambiguous, deepfake technology has a menacing $136 billion in value until the hack was also protects the publication of any false we can still rely on the old comfort potential to destabilise democracy and revealed. A more disturbing incident imputation concerning a person whose that only seeing is believing. However national security on the national and occurred in January when an alert reputation or self-esteem is likely to be the emergence of digital impersonation world stage. Deepfakes could feature was sent through Hawaii’s Emergency injured. Where a deepfake video is found technology threatens this age-old adage government officials taking bribes, police Management Agency, notifying residents to be defamatory, the targeted person and is a sign that the unwavering threat officers shouting racial slurs, or news of an impending ballistic missile. While may be entitled to damages. In addition, of information warfare cannot be so anchors announcing impending missile the alert was promptly retracted, the where deepfake videos are used for easily controlled. strikes. While a well-executed deepfake government released contradictory illicit purposes such as blackmailing or might spark public outrage or panic in a statements in a negligent attempt to fraudulent purposes, this would clearly particular instance, there are also long- diffuse tension. Hawaii’s governor, David fall under criminal provisions against What are deepfakes? term systemic implications.4 Ige, announced that someone had “pushed extortion or fraud under the Crimes the wrong button” during an employee Act 1900 (NSW).9 The Commonwealth “FakeApp” is an application that uses shift change, while The White House Criminal Code, sets out in the schedule Artificial Intelligence technology to A threat to democracy claimed that the alert was an “emergency to the Criminal Code Act 1995 (Cth) superimpose individuals’ faces into pre- and national security management exercise”.7 With Trump’s provides the offence of cyber-harassment, existing videos. How it works, put simply, volatile presidency and the advent of if fake videos are posted online to is that you input photographs and footage Fake videos threaten to erode public fake news, there is simply no room for “menace, harass, or cause offence.”10 of a person’s face at multiple angles. The trust, which is vital for democratic such errors in communications. One Whilst the current law would potentially program then grafts that face onto another systems to function. Today, when footage could easily envisage the consequences play a deterrent and compensatory role, face in every still frame of a video. With is uncovered of a person committing of a deepfake video of Trump authorising it is a rather ‘band-aid’ approach that enough material, the program is capable a crime or a celebrity starring in a sex nuclear actions, and it’s not a stretch provides little assurance in preventing of ‘learning’ facial habits such as blinking tape, viewers can safely assume that the of the imagination to consider the the dissemination of deepfakes before patterns and eyebrow movements, depicted events have occurred (provided, disastrous responses that could arise the fact. generating plausible options for each data of course, that the video is clearly from the dissemination of such deepfake point at any one time.1 The result, known unedited and of a certain quality). But content. as a “deepfake”, is astoundingly realistic. when tools for producing fake videos Potential solutions? Traditionally, such a task was impossible become faster, more accessible to the without expertise in computer-generated ordinary user, and perform at a higher Can the law protect us? t this stage, there is no applicable law to imagery. But the machine-learning quality, the information ecosystem will be prevent the creation and proliferation algorithm has condensed the editing substantially injected with a particularly But what is the appropriate legislative of fake videos, and it’s likely that there process and democratised access, making dangerous form of falsehood.5 As response to deepfakes? It is evident in won’t be. This is because the regulation it possible for virtually any person with deepfakes become widespread, the public today’s era that the law is struggling of fake content is an extraordinarily computer access to produce their own will have difficulty believing what they to adapt to the exponential growth in slippery concept. Burdened with the fake videos. see or hear – even when the information technology. Legislators are still trying danger of criminal penalties, regulation presented is indeed true. The expansion to grapple with an array of tech-related would merely achieve what it intended As one would predict, this technology of such technology would completely issues including autonomous vehicles, to avoid: chill freedom of communication has been quickly leveraged for distasteful disrupt and destabilise the legitimacy drones, and cyber security. But despite and substantially diminish the ends. The production of fake and non- of fact and evidence in domains across the absence of direct Australian laws to marketplace for ideas. There are also consensual pornographic videos featuring journalism, testimony in criminal justice, specifically address deepfake technology, severe implications for legal institutions. celebrities has amassed considerable and government communications with there are existing bodies of law that may How would we, as a society, manage popularity. Deepfakes of actresses Scarlett disastrous consequences for the very possibly address the potential harms the discrepancy between facts and

58 59 fabrication? Who would be the adjudicator camera feeds or private footage. If no one to determine what is fake when a dispute in the original video is famous and the arises? Regulation would turn judges footage isn’t available elsewhere online, into fact-checkers for potentially millions it would be impossible for the algorithm of fake content cases. Each news item to discover whether the content had or social media post would need to be been altered. Professor Henry Farid at assessed individually – a burden that Dartmouth College warns that “we’re would undermine the quick and just decades away from having forensic resolution of proceedings.11 technology that… [could] conclusively tell a real from a fake”. He suggests an Already, these problems are imminent alternative solution: to install a number in South-East Asia. The Malaysian of different protocols designed to detect Parliament attempted to regulate fake fraudulent activity, so that it becomes content by passing the Anti-Fake News extremely difficult to create a deepfake Act 2018, which defines fake news that can overcome all the safeguards broadly to include “any information, in place; “I can’t stop you from creating data and reports, which is or are wholly fakes, but I can make it really hard and CONTROLLING or partly false, whether in the form of really time-consuming”. While this does features, visuals or audio recordings or provide some hope, it is clear that an in any other form capable of suggesting increase in the resources being devoted words or ideas”.12 However, the Act has to the development of such technologies had supressed society’s willingness is vital is needed.15 to criticise government, which is particularly concerning in light of the Conclusion MOVEMENT: corruption scandal involving Malaysia’s former Prime Minister Najib Razak. The vague definition of what constitutes Deepfakes have the devastating potential fake news has also created significant to destabilise governments, national problems for the courts. The Act doesn’t security and erode the very notion define where the line is between mistakes of public trust – and it seems that Public Space and the Law and intentional falsehoods (given the there’s very little the government can ‘partly false’ caveat). Nor does it specify do to control it. Legislative responses the distinction between what can be are restrained to deterrence and considered as online gossiping and actual compensation, as regulation would have reporting, or how Malaysia intends to adverse consequences on freedom of apprehend foreign suspects not living communication and legal institutions. in the country. As a result, the courts The most practicable solution would be have become too reliant on the ruling to focus on detection technology. In the party’s wishes, exacerbating the risk of a meantime, deepfakes remain mostly in censorship state.13 the realm of pornography. It’s difficult to Natan Skinner tell at this point whether such technology JD I The most viable solution to the deepfake will indeed cause a total information threat would be the development warfare to break loose, but if there’s of software capable of rapidly and one thing to be sure about, it’s that this reliably flagging these videos, but such dystopian technology has become a technology has been unable to keep pace. reality and there’s no going back. Currently, a video hosting and editing platform known as Gfycat can run AI over videos to pick out fakes by searching for identical videos. But the problem is that it won’t work for videos that aren’t publicly available, such as police body

60 61 Encounters with unassimilated difference public space as private territory public This process discursively declares a appropriating space and challenging its are essential to the functioning of a space as private territory requiring legal “public meaning” to all conduct and meaning through unauthorised use.15 healthy and diverse democracy. The defence and border regulation.1 This experiences, infusing all actions with Homeless people are forced to “conduct great soapbox of public space is where process determining the boundaries of political significance towards either their lives in public space”.16 By reg ulating such encounters are possible – where space also functions to constitute the the ‘good society’ or the ‘bad’ one.8 The the necessities and enjoyments of life – deep differences can be mutually dwelled legitimate public subject in relation to effective subsumption of all behaviour urination, defecation, sex, drunkenness in, and tolerated, by strangers. Yet public the territory they occupy – thereby the into a dichotomy of lawful and good or – in the name of maintaining a certain space in the contemporary city falls far law, as the legitimating force, becomes unlawful and bad promulgates a norm ‘quality’ of city life, the homeless are short of this cosmopolitan ideal. Rather, the mechanism of defending this space to be adhered to, which regulates the forced into a criminogenic existence urban public space functions as a tool and punishing unauthorised users.2 Law legal subject. It is an operation which where crimes must be committed to by which the movements of the citizen- determines who can be where, when, presupposes and reinforces groups of survive.17 The criminal law becomes subject are controlled and the possibility and how space can be used – even space bodies as desirable or undesirable and corporeal in this forced performance of of encounters delimited to assimilated it declares as ‘public’. places them in categorical opposition crime without recourse18 – the homeless difference – or, sameness. Social to one another.9 Criminal law “creates body beginning to exist only through a boundaries have become policed by a Urban public space is the typification of the problem it addresses”10 and thereby ‘certain idea of psychology’19 which labels series of legal and architectural processes democratic politics, the melting pot of determining what is problematic through it as anathema to neoliberal values. fortifying the built environment. This people, cultures, and ideas, where politics value judgements. mediates all experiences of life in the itself can take shape. Within such space, Value-laden criminal law is inscribed public realm, militating against the there is a presumption of encountering The contemporary criminal law is imbued into the architecture of the contemporary existence of any real difference. This difference – of leaving the ordinary safety with normative values of capitalist society, city, defending the consumerist purpose effect is not a failure of design. Rather, of the private home where the individual privileging the productive capitalist of public space. Defensive architecture an aim of design facilitated by the law. In owner determines the rules and can over all else. Criminalising behaviour is in the cityscape functions to articulate analysing the importance of public space conduct their affairs in privacy to the an interpretive practice on the part of movements and thereby defining public in modern democracy, this essay attempts system of societal regulation requiring the politically powerful, judging what space.20 Architecture becomes hostile, to clarify the relationship between law adherence to the social contract. It is the behaviour is accepted in certain spaces.11 used to defend against undesirable and space. Beginning by considering physical site where strangers may simply Judgements are characterised by moral, bodies such as the homeless and delimit the role of law, property and the value dwell in their differences on “civilised prudential, economic, and aesthetic legitimate use of public space to consumer judgements inherent in legal processes, I but essentially dignified and reserved considerations arising from dominant practices. Mechanisms of ‘designing proceed by considering how these values terms”.3 The tension of pluralism and values – neoliberalism. With consumer out’ undesirable bodies involve limiting become manifest in the urban landscape individual liberty apparently avoided cultures emphasis on productivity and the use of objects to their ‘intended through defensive architecture. altogether by Mill’s classical liberalism – growth, those existing in public and purpose’. This includes metal spikes Following, I explore how this operates to the idea that interference in the lives of quasi-public space but do not significantly where the homeless may appropriate dominate bodies in public space the law others is only legitimate when used for contribute to the economy find their beds, reducing the size of public benches has deemed as ‘undesirable’ – namely, the “self-protection”4 against harms in the presence criminalised.12 This is a so as they cannot be laid upon,21 and homeless. It will become clear that control public sphere, and therefore that none disavowal of all difference that challenges securitising the shopping mall through over bodies deemed illegitimate serves are “amenable to society” in private.5 the dominant neoliberal ideology – the surveillance technologies and a language a double function to control legitimate What is legitimate in public space then intolerable becoming what is threatening. of ownership allowing legitimate subjects. The barred city functions to delimits the boundaries of what political Consumerism ‘orchestrates public space’ exclusion.22 This punitive regulation induce a fear of difference, which creates actions are possible, and what forms of as ‘retail space’ and ‘civic centres’ are renders public space uninhabitable and a certain model of atomic citizenship at citizenship it allows to take shape.6 conflated – the presumption of using insecure for the homeless body,23 it is odds with democracy. public space resting on a capacity for the “spatial structuring of inequality”24 productivity. The intolerable is construed ensuring challenges to the norm are not Law is a territorial endeavour delimiting The criminal law operates as a language on a polarising class basis permeating readily encountered.25 legitimate uses for certain spaces. In of meaning to imbue certain actions through urban space and instituting a bestowing property rights, of possession with legal and political significance kind of ‘spatial apartheid’ based on socio- Control over public space functions to or ownership, the boundaries of space – categorising acts into binaries to economic status.13 In this neoliberal serve legitimate subjects in allowing are determined. Private property determine the limits of acceptable model, public space is analogous to public them to easily avoid confrontational has become the ‘organising idea’ of behaviour. Simply, criminal law ascribes identity and must therefore be vigilantly encounters with true difference – modern society. It operates as a double blameworthiness on a spectrum of defended.14 One conspicuous threat the spectre of the homeless body. movement which dichotomously seriousness7 – delineating the boundaries clearly at odds with neoliberal ideology Regulatory mechanisms imposed upon demarcates public space from private of criminality, and therefore what is is homelessness. Homelessness threatens the homeless body ensure the ‘progress’ space while simultaneously constituting punishable and valued as ‘good’ behaviour. the meaning and value of public space by of the ideal, consuming, citizen-subject

62 63 go undisturbed in urban environments.2 6 serving the idea of a homogenous public Neoliberal ‘responsibilising’ of the free from real difference. The criminal homeless body to standards it physically law becomes a double mechanism cannot uphold27 places it in a position of wherein it regulates both the undesirable permanent otherness. Homelessness has bodies who are different, and its ideal become a ‘figure of the unlawful’, leading subjects – by way of determining the to a “uniformity of response”28 when specifications of their encounter. encounters do occur – shunned for its incapacity to contribute to the economy and uphold the values of the law. This approach, which appears to be “figured in advance”,29 seems to maintain the integrity of urban space in simultaneously reinforcing difference as intolerable and excluding it. Regulating encounters with difference has substantial implications for civic engagement by sacrificing the diversity of the majority through negating the capacity of subjects to challenge their preconceptions about difference30 and eliminates the “possibility of agency”31 in determining what is believed about the ‘other’ and what is believed about the self as distinct from that. Fear of difference and the threat it poses to the dominant ideology precludes the effective operation of democratic politics by leading to an atomic form of citizenship32 whereby movements are barred to defend against encounters – whether it be through insidious architectural manipulations, or an acquiescence to the current values of the criminal law.

The criminal law appears to exhibit an exclusionary logic of regulation functioning to mediate all encounters with difference in public space, thereby inducing fear and foreclosing the Game over: capacity for democratic politics to take place. By exploring the relationship between law and territory, the values of why it is time to the modern criminal law were revealed to be centred on capitalism. Following was an engagement with the specific retire the anti- mechanisms of regulation the criminal law uses in the scene of the contemporary consumer focused city. Specifically, the siphoning list codification of the criminal law and its values within legislation and architecture Rémy Numa, LLB V that produces specific crimes. Public space is revealed as an illusory ideal,

64 65 Conflict of interest disclosure: the author The discriminatory effect of the provider, Foxtel, is available online but major sporting events are only has previously been employed by Foxtel current legislation on local industry also broadcasts through traditional cable accessible to a wide viewing audience Management Pty Ltd, 21st Century Fox, and satellite television platforms,10 so if they are broadcast on free-to-air Inc., and NBCUniversal, Inc., all of which Australia’s anti-siphoning legislation it must hold a subscription television television. However, recent shifts in hold interests in the free and subscription- consists of two key provisions. Firstly, license. Consequently, Foxtel is unable viewer preferences suggest otherwise. based sports broadcasting industries. the Broadcasting Services Act authorises to bid for the same rights as internet- Audiences, particularly younger viewers, the Minister for Communications to based paid streaming platforms. While are watching less free-to- air television, Laws are only effective when they reflect create a list of events, at their discretion, consumers pay either way, the law gives while simultaneously embracing internet- the market they seek to control. If a which they believe should be available a substantial advantage to foreign and based devices. They are also showing a market changes but regulations do not to the public for free, unless the rights domestic companies which operate willingness to pay for streaming services. change with it, they cease to serve their to the program remain unsold 26 weeks exclusively online, over those which community, and should be abolished. before the event begins.4 Secondly, the operate Australian television services. Firstly, while it remains popular, free- act imposes a condition on subscription to-air television continues to experience Australia’s anti-siphoning laws are a television broadcasting licensees which This is not a hypothetical concern. The declines in viewership. The average perfect example of this problem. The prohibits them from bidding for the subscription sports streaming market is Australian spends 43 fewer minutes legislation, which was introduced in exclusive rights to any event on that list.5 nascent, but the United States provides an watching free-to-air television each day 1992 and has seen little reform since example of how companies are investing than they did in 2010,15 and 22% of then, ostensibly bars subscription At the time the laws were enacted, in this space aggressively. In 2017, Australians now say they do not watch television providers from acquiring the this achieved the desired outcome of Amazon struck a major deal with the NFL free-to-air television at all during an 16 exclusive rights to major sporting events making certain events available for free. which saw weekly games broadcast on its average week. The drop-off is even more 11 like the Olympics, as well as certain Rather than directly giving free-to-air subscription Prime Video service. AT&T substantial among younger viewers, with rugby, football, cricket, tennis, and other broadcasters the right to bid for events, now owns the internet streaming rights to 57% of viewers aged 18-24 avoiding free- 1 17 sporting events. However, because the the legislation simply imposes restrictions several major sports events through their to- air television altogether. Even when 12 legislation fails to regulate internet-based on subscription broadcasting licensees. HBO and Turner divisions. Last week, watching sports, only 45% of Australians streaming platforms, it no longer reflects Events named on the anti-siphoning list ESPN debuted exclusive Wimbledon say they consider TV to be their preferred 18 the market. were (and still are) valuable,6 so they were coverage on its subscription ESPN+ device, and just 29% most often watch 13 19 certain to be purchased by a commercial service. And industry observers expect sporting events live. The stakes are high in enacting reform. broadcaster before the deadline. This Apple, Google, and Netflix to enter the 14 The three commercial broadcasters are effectively guaranteed their availability sports market in the near future. These At the same time, Australians are adopting heavily reliant on advertising revenue on free-to-air television. companies have the financial resources alternative devices and platforms. 86% from major sports events, and the and expansion plans needed to outbid of all Australian households have an 20 licensing fees they pay rights holders are a Today, this leaves a major loophole open local industry. internet connection. The average viewer driving factor in the sports industry’s $5.2 for non-traditional broadcasters. Video has seven screens in their home, ranging 2 billion of annual revenue. At the same streaming platforms such as Netflix, It is therefore untenable that the from internet-enabled televisions and time, Australian viewers’ love for sports YouTube, and Facebook have millions of legislation continue to exist in its connected devices, to phones, tablets, 21 is unwavering: sports programming users across Australia and are expected current form. By abolishing restrictions and computers. Television audiences consistently dominates television ratings to grow in popularity over the next five on Australian subscription licensees, are proving adept at using streaming across every demographic and on every years.7 However, regardless of whether the Government would remove the platforms, with 51% of all Australians 3 platform. It is therefore important that an internet-based streaming service is a unintentional bidding advantage which using at least one video- streaming 22 reform accounts for industry needs and subscription product (such as Netflix, or internet-based streaming platforms platform. This figure rises to 70% 23 viewer preferences. Amazon Prime Video) or a free service enjoy. This allows local subscription among viewers under 30. Finally, while (such as YouTube, Facebook, or Twitter), platforms the opportunity to buy any the sports streaming market is young, In order to satisfy both of those key neither are considered to be subscription event, levelling the playing field before just under 11 million Australians already 24 groups, the Federal Government should broadcasters by the law.8 As such, they powerful foreign technology companies access sports content regularly online. abolish the anti-siphoning list. While this are not required to hold a license,9 and own the market. is a radical approach, doing so will ensure are not prohibited from bidding for these Australians are also showing a widespread that the law does not discriminate against events. willingness to pay for television. 50% local industry; reflects the new platform The shifting platform preferences of all households in Australia now pay preferences of Australian audiences; and The result is legislation which of Australian viewers for television services, compared to 25 gives viewers a choice in whether they pay discriminates against the local just 29% one decade ago. Much of the a fee for televised sports, or accept a free subscription television industry. The Leaving the above loophole aside, the growth riven by Netflix, with 32% of all product at the expense of their values. dominant local subscription television anti-siphoning legislation presumes that Australian households subscribed to the

66 67 service today.26 Netflix is now more technologies to increase their advertising conflicts with their values. The problem popular among online video users revenue.30 Australians who watch sports with the existing anti-siphoning than free streaming services from any programming from these broadcasters legislation is that it makes choices for Australian broadcaster, despite only online, and particularly those who watch Australians who want robust alternatives entering the local market three years sports exclusively online, are therefore to free sports broadcasts. Sports viewers ago.27 Facing a much larger and more required to consent to these technologies who want to avoid invasions of privacy and competitive landscape, Foxtel has also and the highly targeted advertisements gambling advertisements should be able recently launched an online subscription they enable. to ‘vote with their wallets’ and embrace television product, despite being subscription broadcasters instead of free hamstrung by anti- siphoning laws.28 The consequences of mass personal services. Yet the anti-siphoning list makes Meanwhile, challengers including Stan data collection are extensive and well it impossible for those broadcasters to and Amazon Prime Video collectively known. The media, telecommunications, buy exclusive rights, thus removing reach over one million Australians.29 The and technology sectors have often the incentive for them to broadcast the notion that Australians will not pay for misused personal data, leaving millions program at all. The Government must television is a myth. of customers around the world exposed remove the advantage that free services to identity theft, fraud, and non- have over the traditional subscription These shifts in viewing prove that the consensual invasions of privacy.31 Most broadcasting industry. anti-siphoning legislation is no longer notably, Facebook, which despite large relevant to many Australian television investments in sports rights does not viewers. Audiences have become much fall under the anti-siphoning legislation, Conclusion more willing to embrace alternatives admitted that as many as 87 million to free-to-air television, including users worldwide were compromised in When the Australian Government subscription services. The Government the Cambridge Analytica scandal earlier introduced the anti-siphoning list in should therefore reflect those shifts by this year.32 The Australian Government 1992, it could hardly have been expected abolishing the list. subsequently launched an investigation to foresee a transformation in sports into data sharing.33 Given these broadcasting. Nonetheless, that change reasonable concerns, anti-siphoning laws has come, and it is now essential for The increasing cost of ‘free’ services should no longer favour free services. those laws to reflect the new landscape. The Government should relinquish The anti-siphoning legislation also Even when free services do not collect control over sports broadcasting to avoid presumes that free television services are extensive personal data, they rely discriminating against local industry, and inherently better for Australian viewers, on advertising from companies that for the sake of viewers, who have shifted because they can be accessed without conflict with audience values. Free-to- their viewing preferences and should paying a fee. This concept is outdated in air broadcasters have become infamous be given a choice in data collection and the modern television era. Today, using for their extensive partnerships with advertising exposure. The legislation a free service also means consenting to online betting outlets, including frequent should be abolished. intrusive data collection policies and on-air advertisements and integrated controversial advertising, especially promotions during sporting events.34 from major gambling companies. By Following calls from the news media to prohibiting the local subscription ban these ads, the Federal Government television industry from bidding for these recently implemented a restriction on rights, the legislation ignores viewers gambling promotions before 8:30PM, who value privacy and wish to limit their but this still exposes viewers, including exposure to ads. children, to ads during primetime coverage.35 By contrast, Foxtel broadcasts Firstly, many Australians must now many major sporting events, including consent to data collection in order to NRL and AFL matches, ad-free on their watch sports for free. Unlike when networks.36 By prohibiting subscription the anti-siphoning legislation was first licensees from bidding on the full suite enacted, broadcasters including Seven, of sports rights, the anti-siphoning Nine, Ten, and a variety of free services, legislation forces Australians to engage now employ personal data collection with gambling companies, even when it

68 69 . 35 Nick Toscano and Jennifer Duke, ‘Betting Ads 25 Telsyte, Streaming Video on Demand a Hit Banned During Live Sport Broadcasts’, The Sydney in Australia: Subscribers Up More Than 30% Morning Herald (online), 16 March 2018 ; Matthew p4z4qq.html>. Knott, Why Less than a Third of Australians Have Pay-TV in their Homes (10 July 2012) Property 36 Fox Sports, What’s a Weekend Without Ads? (21 Fallingreferences Into The Same Trap? An Analysis of the Modern Slavery Bill 10 Mason, above. Observer . 11 Bryn E Sandberg, ‘Amazon Lands Streaming Supply Chains Isabella Buchanan and Benjamin John trends/17364-what-foxtel-is-really-worth.html>. Rights to NFL’s ‘Thursday Night Football’’, The Hollywood Reporter (online), 4 April 2017 26 Roy Morgan Research, Netflix Hits New High Capital Gains Tax and Disposals of Bitcoin: A Mismatched Pair 1 Sophie Dawson, Anita Cade and Marlia Saunders, . netflix-subscriptions-june-2017-201709270713>. Law Bulletin 8. 1 Bernard Marr, A Short History of Bitcoin and 12 Brent Kendall and Drew FitzGerald, ‘AT&T Beats 27 Screen Australia, Online & On Demand: Trends Crypto Currency Everyone Should Read (December 2 IBISWorld, Sports Administrative Services - U.S. in Antitrust Fight Over Time Warner’, The Wall in Australian Online Viewing Habits (2018), 2, 17 6 2017) Forbes . on-demand-2017>. read/#245b54013f27>. administrative-services.html>. 13 2 Jon Lafayette, ‘ESPN Sets April 12 For Launch of 28 Dana McCauley, ‘New Foxtel Chief Delany in Garrick Hileman and Michel Rauchs, Global 3 See, eg, Roy Masters, ‘NRL on Course for TV ESPN+ Service’, Broadcasting & Cable (online), 2 Hunt for Millennials’, The Australian (online), Cryptocurrency Benchmarking Study (2017) Ratings Victory over AFL’, The Sydney Morning April 2018 . com.au/business/media/new-foxtel-chief- ; Georgina 14 See, eg, Arjun Kharpal, Amazon Will be a ‘Major d0aff3f8dc4bf225d5045eaab4d6c496>. downloads/2017-global-cryptocurrency- Robinson, ‘Super Ratings up but Cricket Mega Deal Disruptive Force’ to Live Sports Rights in the Next benchmarking-study.pdf>. a Blow for Rugby, Expert Says’, The Sydney Morning Few Years, Analyst Says (13 March 2018) CNBC 29 Justin Burke, ‘Netflix, Stan, Amazon: Streaming Herald (online), 18 April 2018 . com.au/arts/television/netflix-stan-amazon- coinmarketcap.com/charts/>. 20180418-p4zact.html>. streaming-services-capture-audiences/news-story/ 15 Nielsen, Australian Video Viewing Report 4 8535219dac90c6e29a9d0fb9dc062418>. Ibid. 4 Broadcasting Services Act 1992 (Cth) s 115; Quarter 4 (2017), 10 . with Addressable Advertising (23 October 2017) 6 Mumbrella . is the provision of bitcoin by an employer to an employee in respect of their employment a property 6 17 Paul Smith, ‘The Regulation of Television Sports Ibid. 31 See, eg, Ethan Zuckerman, ‘This Is So Much Bigger fringe benefit for the purposes of subsection 136(1) Broadcasting: a Comparative Analysis’ (2015) 37(5) Than Facebook’, The Atlantic (online), 23 March of the Fringe Benefits Tax Assessment Act 1986?, TD Media, Culture & Society 728; Stephen Letts, If 18 Deloitte, above n 7, 11–12. 2018 . Australian Taxation Office, Income tax: is bitcoin . Australian Bureau of Statistics, Household Use 32 Sandberg, above n 11; Nicholas Confessore, 10(1) of the Income Tax Assessment Act 1997?, TD of Information Technology, Australia, 2016-17 ‘Cambridge Analytica and Facebook: The Scandal 2014/27, 17 December 2014. 7 Deloitte, Media Consumer Survey (2017), 13, 17 (2018) . 8 (online), 4 April 2018 . 21 Nielsen, above n 15, 3. scandal-fallout.html>. 5(1) of the Income Tax Assessment Act 1997?, TD 2014/26, 17 December 2014. 8 22 Broadcasting Services Act 1992 (Cth) sch 2 cl 10. Sensis, Social Media Report (2017), 17 . 10 au/articles/data-privacy-and-power>. Income Tax Assessment Act 1997 (Cth) s 104-5. Australian Financial Review (online), 10 September 23 11 2017 . Online Sports Content in January 2018 (2018)

70 71 13 TD 2014/26, 1. 33 Her Majesty’s Revenue and Customs, Revenue 16 Ibid s 13. Health Policy, 9-20. and Customs Brief 9 (2014): Bitcoin and other 14 Travelex Limited v Commissioner of Taxation cryptocurrencies, 3 March 2014. 17 Ibid s 23B. 33 House of Representatives Standing Committee [2008] FCA 1961, 23-4 (Emmett J). on Legal and Constitutional Affairs, Parliament of 18 Ibid s 15. Australia, Human cloning: scientific, ethical and 15 Australian Tax Office, Income tax: is bitcoin a Human Cloning Practices in Australia: A Regulatory Chimera or is it Time to regulatory aspects of human cloning and stem cell ‘foreign currency’ for the purposes of Division 775 of Reconsider? Liam Ogburn 19 Research Involving Human Embryos Act 2003 research (2001), [8.35]. the Income Tax Assessment Act 1997?, TD 2014/25, (NSW), s 3. 17 December 2014, 7-11. 34 J.K. Findlay et al, ‘Human Embryo: A Biological 1 Mount Isa Mines v Pusey (1970) 125 CLR 383. 20 Research Involving Human Embryos Act 2002 Definition’ (2007), 22 Human Reproduction 4, 905 16 Ibid; Bill Maurer, Taylor C. Nelms & Lana Swartz, (Cth), s 13. – 911. 2 Ibid 395 (Windeyer J). ‘When perhaps the real problem is money itself!: the practical materiality of Bitcoin’ (2013) 23.2 Social 21 Ibid s 23(1)(a) – (f). 35 Prohibition on Human Cloning for Reproduction 3 Ben Guarino, ‘Two macaque monkeys cloned in a Semiotics 261, 264-5. Act 2002 (Cth), s 8; Research Involving Human Shanghai Research lab’, Australian Financial Review 22 Zhen Liu et al, ‘Cloning of Macaque Monkeys by Embryos Act 2002 (Cth), s 7. (Australia), 25 January 2018, . 18 Ibid. S0092-8674(18)30057-6>. Definition’ (2007), 22 Human Reproduction 4, 907. 4 Gina Kolata, ‘Scientist Reports First Cloning Ever 19 TD 2014/26, 6. 23 James Bourne, The need for monkey cloning 37 Henry Greely, ‘Banning Human Cloning: A Study of Adult Mammal’, The New York Times (online), requires careful consideration (25 January in the Difficulties of Defining Science’ (1998), 8 23 February 1997, . Commonwealth Laws, Interim Report 127 (3 August The-need-for-monkey-cloning-requires-careful- 2015) ch 7. consideration.aspx. >. 38 Legislation Review Committee, Parliament of 5 Ian Wilmut et al, ‘Viable offspring derived from Australia, Report of the Independent Review of the foetal and adult mammalian cells’ (1997) 385 21 Ibid. 24 Michael Greshko, Monkey Clones Created in the Prohibition of Human Cloning for Reproduction Act Nature: International Journal of Science 810-813. Lab. Now What? (24 January 2018) . (1997) 11 Bioethics 427. 23 W. S. Holdsworth, ‘The History of the Treatment of 39 Prohibition on Human Cloning Bill, Revised “Choses” in Action by the Common Law’ (1920) 33 25 Ian Ayres and John Braithwaite, Responsive Explanatory Memorandum Clause 15. 7 Aldous Huxley, Brave New World (Penguin: Vintage Harvard Law Review 997, 1000-1. Regulation: Transcending the Deregulation Debate Classics, 2018). (Oxford University Press, 1992). 40 Prohibition on Human Cloning Bill, Revised 24 Australian Law Reform Commission, Traditional Explanatory Memorandum Clause 15. 8 Universal Declaration on the Human Genome and Rights and Freedoms, ch 7. 26 Prohibition on Human Cloning for Reproduction Human Rights 1997, UNESCO Res 29 C/I7, UNESCO Act 2002 (Cth), s 25A; Research Involving Human 41 Aisha Dow and Melissa Cunningham, ‘Call for a General Conference, 29th sess, (11 November 1997). 25 Patents Act 1990 (Cth); Trade Marks Act 1995 Embryos Act 2002 (Cth), s 47; Human Cloning change to human cloning law to prevent genetic (Cth). and Other Prohibited Practices 2003 (NSW), s 19; disorder’, The Age (Australia), 21 September 2017, 9 Ibid art 11. Research Involving Human Embryos Act 2003 (https://www.theage.com.au/national/victoria/ 26 Canny Gabriel Castle Jackson Advertising Pty (NSW), s 22. call-for-change-to-human-cloning-law-to-prevent- 10 Ibid art 2(b). Ltd v Volume Sales Pty Ltd (1974) 131 CLR 321; genetic-disorder-20170920-gylgyo.html). Contracts Review Act 1980 (NSW). 27 Prohibition on Human Cloning for Reproduction 11 Commonwealth, Parliamentary Debates, House Act 2002 (Cth), s 25(4). 42 Senate Standing Committee on Community Affairs, of Representatives, 21 August 2002, 5388 (Mr 27 Automatic Self-Cleansing Filter Syndicate Co Ltd v Parliament of Australia, Science of mitochondrial Clausey). Cuninghame [1906] 2 Ch 34. 28 Prohibition of Human Cloning for Reproduction donation and related matters (2018). and the Regulation of Human Embryo Research 12 Human Cloning and Embryo Research Act 2004 28 Companies Act 1862 (25 & 26 Vict. c.89). Amendment Act 2006 (Cth). 43 Ibid [5.14]. (ACT); Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 29 TD 2014/26, 7-9. 29 Human Cloning and Other Prohibited Practices 44 Senate Standing Committee on Community Affairs, 2003 (Qld); Research Involving Human Embryos Amendment Act 2007 (NSW). Parliament of Australia, Science of mitochondrial Act 2003 (SA); Human Cloning for Reproduction 30 Duncan Hughes, ATO creates specialist task force donation and related matters (2018), [5.14]. and Other Prohibited Practices Act 2003 (Tas); to tackle cryptocurrency tax evasion (10 January 30 David H. Kwan et al, ‘Towards Efficient Enzymes Prohibition of Human Cloning for Reproduction Act 2018) Financial Review < https://www.afr.com/ for the Generation of Universal Blood through 45 Ibid [5.19]. 2008 (Vic); Research Involving Human Embryos Act news/policy/tax/ato-creates-specialist-task-force- Structure-Guided Directed Evolution’ (2015), 137 2008 (Vic); Human Reproductive Technology Act to-tackle-cryptocurrency-tax-evasion-20180109- Journal of the American Chemical Society, 5695 – 46 Ibid Recommendation 4: [5.104]. 1991 (WA). h0f yaz>. 5705. 47 Ibid [5.14]. 13 Human Cloning for Reproduction and Other 31 Internal Revenue Service, Notice 2014-21 (25 31 Janet Raloff, Curiosity lands on Mars! (8 August Prohibited Practices Act 2003 (NSW), s 3. March 2014), A-7. 2012) 14 Prohibition of Human Cloning for Reproduction 32 Tax Policy Center, How are Capital Gains 49 Australian Mitochondrial Disease Foundation, Act 2002 (Cth), s 9. Taxed (2016) Tax Policy Center < https://www. 32 Brenda J Wilson and Stuart G Nicholls, ‘The Australian Mitochondrial Disease Foundation 2017 taxpolicycenter.org/briefing-book/how-are-capital- Human Genome Project, and recent advances in Services Survey Report (2017). 15 Ibid s 12. gains-ta xed>. personalized genomics’ (2015), 8 Risk Management

72 73 50 R v Kirby; Ex parte Boilermakers’ Society of 2 This was common ground between the parties: see 18 Lazarus v Independent Commission Against Criminology , The Australian Sex Industry (3 Australia (1956) 94 CLR 254. Lazarus [3]. Corruption (2017) 94 NSWLR 36, 64—5 [130] November 2017) . 51 MAW v Western Sydney Area Health Service 3 BLF (NSW) v Minister for Industrial Relations (2000) 49 NSWLR 231; Re Edwards (2011) 4 ASTLR (1986) 7 NSWLR 372, 378. See also Professor 19 Sir Anthony Mason, ‘Comment’ (2008) 30(1) 16 Ibid. 392; [2011] NSWSC 478; AB v Attorney-General Peter Gerangelos, ‘The Separation of Powers and Sydney Law Review 96, 99. (Vic) (2005) 12 VR 485; [2005] VSC 180; Y v Austin Legislative Interference in Pending Cases’ (2008) 17 Ibid. Health (2005) 13 VR 363; Bazley v Wesley Monash 30(1) Sydney Law Review 61. IVF Pty Ltd [2010] QSC 118; Baker v Queensland Moral Panic and Economic Gain: How the Decriminalisation of Solicitation 18 Erin O’Brien, ‘Against the Trend: Resistance to [2003] QSC 2; Re Denman [2004] 2 Qd R 595; 4 R v Humby; Ex parte Rooney (1973) 129 CLR 231, and Brothel-keeping Turned Sex Work Into an Industry Grace Lovell Davis Neo-abolitionism in Australian Anti-trafficking [2004] QSC 70. 250. Policy Debates’ in Ward E and Wylie G (eds) Feminism, Prostitution and the Statte: The Politics 1 Marcia Neave, ‘Prostitution Laws in Australia – 52 Sonia Allan, ‘Regulatory design strategies and 5 Lazarus v Independent Commission Against of Neo-Abolitionism, (Routledge, 2017) 121. Past History and Current Trends’ in Roberta Perkins, enforcement approaches for research involving Corruption (2017) 94 NSWLR 36, 66 [133]—[135]. Garrett Prestage, Rachel Sharp and Frances Lovejoy human embryos and cloning in Australia and the 19 C Harcourt, J O’Connor, S Egger et al, ‘The (eds), Sex Work and Sex Workers in Australia United Kingdom: time for a change’ (2010), 32 6 See Gerangelos, above n 2, 92—94. Decriminialisation of Prostitution is Associated (University of New South Wales Press, 1994) 68. Sydney Law Review 4. with Better Coverage of Health Promotion Programs 7 As Sri Lanka was known then. for Sex Workers’ (2010) 35(5) Australian and New 2 Stewart Smith, New South Wales Government, 53 The Lockhart Committee reported that the Zealand Journal of Public Health. The Regulation of Prositution: A Review of Recent Australian Government Portfolio Budget Statement 8 See Nicholas v The Queen (1998) 193 CLR 173, 191 Developments Briefing Paper No 21/99, (November for the financial year 2003-04 indicated a total [27] (Brennan CJ). 20 John Scott, ‘Prostitution and Public Health in 1999), 1. commitment of $3.3 million per year. New South Wales’, (2003) 5(3) Culture, Health and 9 Lazarus v Independent Commission Against Sexuality, 283. 3 Ibid. 54 Better Regulation Commission, ‘Risk, Corruption (2017) 94 NSWLR 36, 67 [137] (Leeming Responsibility and Regulation: Whose Risk is it JA). 21 F. Lovejoy, R Perkins, Y Corduff, M.J. Deane 4 New South Wales, Parliamentary Debates, 23 April Anyway?’ (2006), Better Regulation Commission and A. Wade, AIDS Preventative Practices Among 1979, 4917 cited in Marcia Neave, above n 1, 78. Report, 5. 10 Liyanage v The Queen [1967] 1 AC 259, [283]. Female Prostitutes and their Clients and Private Risk (University of New South Wales, 19991), 5. 5 Stewart Smith, above n 2, 3. 55 Ian Ayres and John Braithwaite, Responsive 11 Nicholas v The Queen (1998) 193 CLR 173, 222 Regulation: Transcending the Deregulation Debate [115]. 22 John Scott, above n 20, 285. 6 Sibuse Pty Ltd v Shaw (1988) 13 NSWLR 208. (Oxford University Press, 1992), 53. 12 Nicholas v The Queen (1998) 193 CLR 173, 193 23 Denton Callender, ‘Sexually Transmissible 7 Stewart Smith, above n 2, 5. 56 Jody Schechter, ‘Promoting Human Embryonic [28] (Brennan CJ), 203 [57] (Toohey J), 277 [249] Infections: Why are STIs on the rise in Australia?’ Stem Cell Research: A Comparison of Policies in (Hayne J), 207—8 [70]—[71] (Gaudron J), 232 ABC Health and Wellbeing (online), 16 August 2017 8 Penny Crofts, Jane Maree Maher, Sharon Pickering the United States and United Kingdom and Factors [144] (Gummow J). See e.g. BLF (NSW) v Minister . Services Industries in NSW and Victoria- Sex Work International Law Journal 603. as Work or as Special Category?’ (2012) 23(3) 13 Wainohu v State of New South Wales (2011) 243 24 John Scott, above, n 20, 283. Current Issues in Criminal Justice 393, 402. 57 Brendan Gogarty and Dianne Nicol, ‘The UK’s CLR 181, 208 [44], 210 [46] (French CJ and Kiefel Cloning Laws: A View from the Antipodes’ (2002), J). See also Kable v Director of Public Prosecutions of 25 ACON, Submission to The Attorney-General’s 9 Dr Sandra Egger and Christine Harcourt, 9 Murdoch University Electronic Journal of Law 2., NSW (1996) 189 CLR 51; Fardon v Attorney-General Department Human Rights Action Plan Baseline ‘Prostitution in NSW: The Impact of Deregulation’, [23]. for the State of Queensland (2004) 223 CLR 575. Study (September 2011), 3. Women and the Law. 58 Better Regulation Task Force, ‘Regulation-Less is 14 Lazarus v Independent Commission Against 26 Zahra Stardust, ‘Protecting Sex Worker Human 10 Ibid. More: Reducing Burdens Improving Outcomes: A Corruption (2017) 94 NSWLR 36, 62—3 [116] Rights in Australia’ (2014) 2 Human Rights Law BRTF Report to the Prime Minister’ (2005). (Leeming JA). Working Group Newsletter, 31. 11 Penny Crofts et al. above n 10, 403. 15 Lazarus v Independent Commission Against 27 Ibid. 12 Penny Crofts et al. above n 10, 403. Constitutional Limitations on the Legislature’s Ability to Change the Law? Corruption (2017) 94 NSWLR 36, 62—3 [115], Joy Guang Yu Chen [116], [119] (leeming JA). 28 Ibid. 13 Ibid, 404. 16 Lazarus v Independent Commission Against 29 Ibid; Human Rights and Anti-Discrimination Act 1 The majority in Cunneen held that “corrupt 14 Costa Avgoustinos, Penny Crofts, Deborah Corruption (2017) 94 NSWLR 36, 63 [121] (Leeming 2011 (Cth). conduct”, in Independent Commission Against Henwood, Jo Holden, Adam Knobel, Maria JA). The three elements of the offence: 1) the Corruption 1988 (NSW) s 8(2) (“ICAC Act”), does McMahon, Andrew Miles, Maggie Moylan, Wendy defendant attended a compulsory ICAC inquiry, 2) 30 Spike Boydell, Penny Crofys, Jason Prior, Andrew not include criminal conduct that adversely affects Parsons, Jane Sanders, Melissa Woodroffe, for the defendant gave false or misleading evidence, and Jakubowicz and Glen Searle, ‘Sex in the City: or could adversely affect the efficacy of the exercise SWOP, ‘Sex Work is Work’, Sex Industry Legal Kit, 3) the defendant knew that the evidence was false Regulations, Rights and Responsibilities in Sydney’ of an official function. Rather, ICAC only has power (June 2010), 13 or misleading, or not true: Lazarus v Independent (2009) People, Place, Property and Planning- Sex to investigate conduct that affects the probity of an Commission Against Corruption (2017) 94 NSWLR Industry dynamics in New South Wales, 7. official function, that is, when the official themselves 15 Drugs and Crime Prevention Committee, 36, 64 [128]. had acted corruptly. See Anthony Lo Surdo and Parliament of Victoria, Inquiry into people 31 Spike Boydell et al. above n 19, 8. Aruna Sathanapally, ‘Reining in ICAC’s power: are trafficking for sex work (June 2010) Melbourne; 17 Lazarus v Independent Commission Against non-public officials off limits?’ 11 Law Society of K. Murray, ‘Labour Regulation in the Legal Sex Corruption (2017) 94 NSWLR 36, 64—5 [125], NSW Journal 72. Industry in Victoria’ (2003) 16 Australian Journal [129]—[130] (Leeming JA). of Labour Law 138; cited in Australian Institute of

74 75 AI and Creative Works: Controlling the Beast Through IP Law Connor Jarvis 18 Jolene Creighton, AI Saves Woman’s Life by 2017), Michigan State Law Review, Award Winning: (2013). ‘Fairness and the politics of resentment’ Identifying her Disease When Other Methods The 2017 Visionary Article in Intellectual Property (2013) Journal of Social Policy, 42(3), 567–585. 1 Statute of Anne 1710 (8 Anne, c 19). (Human) Failed, Futurism, Aug. 5, 2016, http:// Law, Forthcoming. 4 Michel Foucault, Power/Knowledge: Selected futurism.com/ai-saves-womans-life-by-identifying- 33 2 Annemarie Bridy, Coding Creativity: Copyright her-disease-when-other-methods-humans-failed; Ana Ramalho, Will Robots Rule the (Artistic) Interviews and Other Writings 1972- 1977 (ed. C. and the Artificially Intelligent Author, 2012 Stanford Jonathan Amos, Love Lab Predicts Marital Outcome, World? A Proposed Model for the Legal Status of Gordon). (Harvester, 1980) Creations by Artificial Intelligence Systems (June 13, Technology Law Review 5, 3-4. BBC News, Feb. 13, 2004, http://news.bbc.co.uk/2/ 5 hi/science/nature/3484981.stm. 2017), SSRN: https://ssrn.com/abstract=2987757. Micheal W. Gruszcynski & Sarah Micheals, ‘The 3 evolution of elite framing following enactment of IceTV Pty Ltd v Nine Network Australia Pty Ltd 34 (2009) 239 CLR 458, 494. 19 David Szondy, University of Oxford Develops Low- Feist Publications, Inc. v. Rural Telephone Service legislation’ Policy Science (2012) 45, 359–384. Co., 499 U.S. 340 (1991). Cost Self Driving Car System, New Atlas, Feb. 18, 6 4 Acohs Pty Ltd v Ucorp Pty Ltd (2012) 201 FCR 173. 2013, http://newatlas.com/oxford-robot-car/26282. Social Services Legislation Amendment (Welfare 35 U.S. Copyright Office, Compendium of U.S. Reform) Bill 2017 (Cth). 5 20 Copyright Office Practices (2014) 3rd Edition, at Ibid. Douglas Walton, Argument from Analogy in Legal 7 Rhetoric, Artificial Intelligence Law (2013). 306. Cth. Parliamentary Debates. House of 6 Representatives, 6 September 2017, Vol. 13 2017, IceTV Pty Ltd v Nine Network Australia Pty Ltd 36 (2009) 239 CLR 458, 474. 21 David Binning, https://www.daisee.com/daisee- Infopaq International A/S v Danske Dagblades 9517. Forening (C-5/08) EU:C:2009:465. 2017-australian-ai-report/, Feb. 21, 2018. 8 7 Matthew Donoghue, ‘Welfare and cohesion IceTV Pty Ltd v Nine Network Australia Pty Ltd 37 (2009) 239 CLR 458, 474, [33]; See generally, 22 Tech CEOs Declare This The Era Of Artificial CCH Canadian Ltd v Law Society of Upper Canada contested: A critical discourse analysis of New Ryan Abbott, I Think, Therefore I Invent: Creative Intelligence, Fortune, June, 3, 2016, http://fortune. 2004 SCC 13, 236 DLR (4th) 395. Labour’s reform programme’, (2013) British Politics, Computer and the Future of Patent Law, Boston com/2016/06/03/tech-ceos-artificial-intelligence. 8(1), pp. 79-100. 38 Ryan Abbott, Artificial Intelligence, Big Data College Law Review 2006, Vol. 57, 1079. 9 23 Steve Schlackman, The Next Rembrandt: Who and Intellectual Property: Protecting Computer- Sheila Shaver, ‘Australian Welfare Reform: From 8 IceTV Pty Ltd v Nine Network Australia Pty Ltd Holds the Copyright in Computer Generated Art, Generated Works in the United Kingdom (November Citizenship to Social Engineering’, Australian (2009) 239 CLR 458, 474, [33]. Art Law Journal (2016), http://artlawjournal.com/ 2, 2017). Research Handbook on Intellectual Journal of Social Issues (2001), 36(4), 277-93. Property and Digital Technologies (Tanya Aplin, ed), the-next-rembrandt-who-holds-the-copyright-in- 10 9 Acohs Pty Ltd v Ucorp Pty Ltd (2012) 201 FCR 173. computer-generated-art. Edward Elgar Publishing Ltd, Forthcoming. Above n. 8.

39 11 10 Jani McCutcheon, The Vanishing Author in 24 Ibid U.S. Patent No. 6,647,395 (filed Nov. 1, 2000). Rex M Shoyama, Intelligent Agents: Authors, Megan Blaxland, 2009, Everyday negotiations for Computer-Generated Works: A Critical Analysis Makers and Owners of Computer-Generated Works care and autonomy in the world of welfare-to-work: of Recent Australian Case Law, 36 Melbourne 25 Annemarie Bridy, Coding Creativity: Copyright in Canadian Copyright Law, Canadian Journal of The policy experience of Australian mothers, 2003- University Law Review 915, 967 (2013). and the Artificially Intelligent Author, 2012 Stanford Law and Technology, Vol 4, No. 2, pp. 129-140, 2005. 2006, (2008).

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76 77 21 Social Security Act 1991 (Cth), s606(4). 37 Johnsen, Sarah, Suzanne Fitzpatrick and Joseph 49 David Webster, Benefit sanctions: Britain’s secret When the Car Starts to Drive You: Privacy Rights and Government Control Rowntree Foundation, The Impact of Enforcement penal system. Centre for Crime and Justice Studies, in Autonomous Vehicles Pranay Jha 22 Craven and Secretary, Department of Education, on Street Users in England (Policy Press for the 26th January 2015 www.crimeandjustice.org.uk/ Employment and Workplace Relations [2010] AATA Joseph Rowntree Foundation, 2007), ix. resources/benefitsanctions-britains-secret-penal- 1 Galloway, Kate, ‘Big Data : A Case Study of 459. system. Disruption and Government Power’ (2017) 38 Parliament of the Commonwealth of Australia, 42Alternative Law Journal 89, 90; The Privacy Act 23 50 Ibid, [15]. Senate, Social Services Legislation Amendment Parliament of the Commonwealth of Australia, (Privacy Act) 1988 (Cth). 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Incentives, rewards, Memorandum, Schedule 15, 94. 1072, 18. motivation and the receipt of income support. 10 Above n-3, 1209-1211. (No. 32.). Canberra: Australian Government Dept. 57 Above n. 11, 77. 31 Considine, Mark, Phuc Nguyen and Siobhan of Families, Housing, Community Services and 11 See eg, Peterson, Andrea, ‘A Year After Snowden 58 O’Sullivan, ‘New Public Management and the Rule Indigenous Affairs, 11; Tyler, T.R. 2004, “Enhancing Above n.11, 152. Revelations, Government Surveillance Reform Still of Economic Incentives: Australian Welfare-to-Work Police Legitimacy”, The Annals of the American a Work in Progress’, The Washington Post (online) 59 from Job Market Signalling Perspective’ (2018) 20 Academy of Political and Social Science, vol. 593, Above n. 11, 125 2014. Public Management Review 1186. no. 1, pp. 84-99.; Wenzel, Michael, ‘A Letter from 60 the Tax Office: Compliance Effects of Informational Teresa Grahame & Greg Marston, ‘Welfare-to- 12 Wills, Geoffrey, ‘TO PROTECT AND SERVE, 32 Parliament of the Commonwealth of Australia, and Interpersonal Justice’ (2006) 19 Social Justice work Policies and the Experience of Employed Single BUT NOT DRIVE: POLICE USE OF AUTONOMOUS Senate, Social Services Legislation Amendment Research 345, Murphy, Kristina, Tom R. Tyler and Mothers on Income Support in Australia: Where are VEHICLES’ (2015), 31 Syracuse Sci. & Tech. L. Rep. (Welfare Reform) Bill 2017 Revised Explanatory Amy Curtis, ‘Nurturing Regulatory Compliance: Is the Benefits?’, (2012) 65(1) Australian Social Work, 158, 161-169. Memorandum, Schedule 9, 52. Procedural Justice Effective when People Question 73-86, 82. the Legitimacy of the Law?’ (2009) 3 Regulation & 13 United States v. Jones, 132 S. Ct. 945, 956 (2012) 33 61 Parliament of the Commonwealth of Australia, Governance 1. Above n. 11, 1. (Sotomayor, J., concurring). Senate, Social Services Legislation Amendment 43 62 (Welfare Reform) Bill 2017 Revised Explanatory Ruth W Grant, Strings Attached: Untangling Above n. 7, 9517. 14 Above n-3, 1212; Gillespe Matthew, ‘Shifting Memorandum, Schedule 15, 92. the Ethics of Incentives, (Princeton, NJ: Princeton Automotive Landscapes: Privacy and the Right to 63 University Press 2012). Above n. 7, 9531. Travel in the Era of Autonomous Motor Vehicles’ 34 Evaluation of Basic Skills Mandatory Training (2016), 50 Wash. U. J.L. & Pol’y 147, 159-161. Pilot and National Enhancements: Interim Report. 44 Axel Honneth, The Struggle for Recognition: The 64 Above n. 11, 4. Department for Work and Pensions, (2005) Research Moral Grammar of Social Conflicts, (Cambridge: 15 See eg, Foucault, Michel, Discipline And Punish: 65 Report No. 307. Norwich: Her Majesty’s Stationery Polity Press 1995). Above n. 11, 82. the Birth of the Prison. New York: Pantheon Books, Office. 1977. Print. 45 Roberts and Secretary, Department of Education, 66 John Philip Christman & Joel Anderson, 35 Mark Peters and Lucy Joyce, A Review of the JSA Employment and Workplace Relations [2010] AATA ‘Autonomy, vulnerability, recognition and justice’ 16 See eg, Fulbright, N. R. (2018, April 27). The Sanctions Regime: Summary Research Findings 273, 17. In J. Christman & J. Anderson (Eds.), Autonomy Privacy Implications of Autonomous Vehicles. (2005) DWP Research Report No. 313. London: and the challenges to liberalism (New York, NY: Retrieved July 8, 2018, from https://www. 46 DWP. Lindsey McCarthy, Elaine Batty, Christina Cambridge University Press 2005), 131. dataprotectionreport.com/2017/07/the-privacy- Beatty, Rionach Casey, Micheal Foden and Kesia implications-of-autonomous-vehicles/ 36 Batty, Elaine and John Flint, ‘Conceptualising the Reeve, Homeless People’s Experiences of Welfare Contexts, Mechanisms and Outcomes of Intensive Conditionality and Benefit Sanctions (London: Crisis 17 Chasel Lee, ‘Grabbing the Wheel Early: Moving Family Intervention Projects’ (2012) 11 Social Policy 2015). Forward on Cybersecurity and Privacy Protections and Society 345. for Driverless Cars’ (2017), 69 Fed. Comm. L.J 25, 47 Above n. 40, 182. 41.

78 79 Fake Porn: ‘Fake News’ Takes a Dystopic Turn Deaundre Matthew Espejo 15 Chesney and Citron, above n 4. Dependence’ (2012) 25(2) Parity 15. Game Over: Why it is Time to Retire the Anti-siphoning List Rémy Samuel

1 17 Jesse Hawley-bot, Distorted truths: the disturbing Samira Kawash, ‘The Homeless Body’ (1998) 10(2) 1 Sophie Dawson, Anita Cade and Marlia Saunders, boom of ‘deepfakes’ (24 April 2018) CSIROscope Controlling Movement: Public Space and the Law Natan Skinner Public Culture 319. ‘Shifting the Goal Posts: Anti-Siphoning Report and . 1 Andreas Mubi Brighenti, ‘Lines, Barred Lines. Law Bulletin 8.

Movement, Territory, and the Law’ (2010) 6(3) 19 2 Ibid. 2 Damon Beres, Pornhub continued to host ‘deepfake’ International Journal of Law in Context 217, 217-9. IBISWorld, Sports Administrative Services - porn with millions of views, despite promise to ban Australia Market Research Report (2018) . International Journal of Law in Context 217, 233-4. administrative-services.html>. and Critique 171. 3 Bryan Clark, Deepfakes algorithm nails Donald 3 Iris Marion Young, Justice and the Politics of 3 See, eg, Roy Masters, ‘NRL on Course for TV 21 Designs Against Humanity, Hostile Designs, Trump in most convincing fake yet (21 February Difference (Princeton University Press, 1990), 250. Ratings Victory over AFL’, The Sydney Morning 2018) The Next Web . 4 John Hampton, Political Philosophy (Westview 22 com.au/sport/nrl/nrl-on-course-for-tv-ratings- Rob White, ‘The Making, Shaking and Taking of victory-over-afl-20180527-p4zhsd.html>; Georgina 4 Press, 1997). Robert Chesney and Danielle Citron, Deep Fakes: Public Spaces’ in C Jones, E Barclay, and R Mawby Robinson, ‘Super Ratings up but Cricket Mega Deal (eds), The Problem of Pleasure: Leisure, Tourism and A Looming Crisis for National Security, Democracy 5 John Stuart Mill, On Liberty (Oxford University a Blow for Rugby, Expert Says’, The Sydney Morning Crime (Routledge, 2012) 32, 33. and Privacy? (21 February 2018) Lawfare . 6 Don Mitchell, ‘The S.U.V. Model of Citizenship: cricket-mega-deal-a-blow-for-rugby-expert-says- in the Neoliberal Age’ (2012) 89(1) Criminal Justice Floating Bubbles, Buffer Zones, and the rise of the 20180418-p4zact.html>. 5 Matters 38. Greg Allen and Taniel Chan, Artificial Intelligence “Purely Atomic” individual’ (2005) 24(10) Political and National Security (July 2017) Belfer Center 4 Geography 77. 24 Broadcasting Services Act 1992 (Cth) s 115; for Science and International Affairs . Law’ (1978) 50(1) University of Colorado Law Crime (Routledge, 2012) 32, 37. 5 Review 1, 8-9, 17. Broadcasting Services Act 1992 (Cth) sch 2 cl 10. 6 Greg Allen, Artificial Intelligence Will Make 25 Mike Davis, ‘Fortress Los Angeles: The 6 Forgoing Anything Entirely Too Easy (1 July 2017) 8 James Boyd White, ‘Making Sense of the Criminal Paul Smith, ‘The Regulation of Television Sports Militarization of Urban Space’ in Matthew Sorkin WIRED . Review 1, 19. Media, Culture & Society 728; Stephen Letts, If City and the End of Public Space (Hill & Wang, 1990) Sports Broadcasts Lose So Much, Why Does TV Keep 7 154. Amy Wang, ‘Ballistic Missile Threat Inbound 9 Iris Marion Young, Justice and the Politics of Bidding up the Rights? (16 April 2018) ABC News to Hawaii’, the alert screamed. It was a false Difference (Princeton University Press, 1990), 169. 26 . Floating Bubbles, Buffer Zones, and the rise of the . images/tmt-media-consumer-survey-final-report. 27 Samira Kawash, ‘The Homeless Body’ (1998) 10(2) 11 Andrew Millie, ‘Value Judgements and pdf>. 8 Public Culture 319, 320 ss 85-88 Criminalisation’ (2011) 51(24) British Journal of 8 Criminology 278, 289-91. 28 Broadcasting Services Act 1992 (Cth) sch 2 cl 10. 9 ss 249k, 192B. Samira Kawash, ‘The Homeless Body’ (1998) 10(2) Public Culture 319, 330 9 12 Andrew Millie, ‘Value Judgements and Ibid; Max Mason, ‘Technology, Telecommunications 10 Criminal Code Act 1995 (Cth) sch, s 474.17. Criminalisation’ (2011) 51(24) British Journal of 29 Players May Face Anti-siphoning Rules’, The Samira Kawash, ‘The Homeless Body’ (1998) 10(2) Australian Financial Review (online), 10 September 11 Criminology 278, 284. Sandeep Gopalan, Outlawing fake news will chill Public Culture 319, 334 2017 . Policy and Research 37, 39. g yct6y>. Criminology 278, 280. 12 Anti-Fake News Act 2018 (Malaysia) s 2. 14 KJ Hayward, City Limits: Crime, Consumer 10 Mason, above. 31 Samira Kawash, ‘The Homeless Body’ (1998) 10(2) Culture, and the Urban Experience (Glasshouse 13 Public Culture 319, 332 11 David Hutt, The Real Problem with Malaysia’s Fake Press, 2004), 5-9. Bryn E Sandberg, ‘Amazon Lands Streaming News Law (5 April 2018) The Diplomat . Floating Bubbles, Buffer Zones, and the rise of the . Fighting Fake Porn, (14 February 2018) WIRED . on Criminalising Homelessness and Alcohol

80 81 12 Brent Kendall and Drew FitzGerald, ‘AT&T Beats 27 Screen Australia, Online & On Demand: Trends U.S. in Antitrust Fight Over Time Warner’, The Wall in Australian Online Viewing Habits (2018), 2, 17 Street Jour nal (online), 12 June 2018 . on-demand-2017>.

13 Jon Lafayette, ‘ESPN Sets April 12 For Launch of 28 Dana McCauley, ‘New Foxtel Chief Delany in ESPN+ Service’, Broadcasting & Cable (online), 2 Hunt for Millennials’, The Australian (online), April 2018 . com.au/business/media/new-foxtel-chief- delany-in-hunt-for-millennials/news-story/ 14 See, eg, Arjun Kharpal, Amazon Will be a ‘Major d0aff3f8dc4bf225d5045eaab4d6c496>. Disruptive Force’ to Live Sports Rights in the Next Few Years, Analyst Says (13 March 2018) CNBC 29 Justin Burke, ‘Netflix, Stan, Amazon: Streaming . com.au/arts/television/netflix-stan-amazon- streaming-services-capture-audiences/news-story/ 15 Nielsen, Australian Video Viewing Report 8535219dac90c6e29a9d0fb9dc062418>. Quarter 4 (2017), 10 . with Addressable Advertising (23 October 2017) Mumbrella .

17 Ibid. 31 See, eg, Ethan Zuckerman, ‘This Is So Much Bigger Than Facebook’, The Atlantic (online), 23 March 18 Deloitte, above n 7, 11–12. 2018 .

20 Australian Bureau of Statistics, Household Use 32 Sandberg, above n 11; Nicholas Confessore, of Information Technology, Australia, 2016-17 ‘Cambridge Analytica and Facebook: The Scandal (2018) . (online), 4 April 2018 .

22 Sensis, Social Media Report (2017), 17 . au/articles/data-privacy-and-power>.

23 Ibid. 34 Hannah Pitt et al, ‘‘It’s Just Everywhere!’ Children and Parents Discuss the Marketing of Sports 24 Nielsen, 10.9 Million Adult Australians Wagering in Australia’ (2016) 40(5) Australia Accessed Online Sports Content in January 2018 & New Zealand Journal of Public Health 480. (2018) . 35 Nick Toscano and Jennifer Duke, ‘Betting Ads Banned During Live Sport Broadcasts’, The Sydney 25 Telsyte, Streaming Video on Demand a Hit Morning Herald (online), 16 March 2018. australia-subscribers-up-30-per-cent>; Matthew Knott, Why Less than a Third of Australians Have 36 Fox Sports, What’s a Weekend Without Ads? (21 Pay-TV in their Homes (10 July 2012) Property February 2016) YouTube . forward-planning/investment-strategy/ market- trends/17364-what-foxtel-is-really-worth.html>.

26 Roy Morgan Research, Netflix Hits New High in Australia – 7.6 million (28 September 2017) .

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