Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018 passed into law

August 22, 2018

The Government has amended the Broadcasting and Enhancing Online Safety Act 2015 by giving the eSafety Commissioner with powers to seek civil and criminal penalties to deal with image based abuse, mainly revenge porn in practical terms.  The civil penalties apply for failing to remove images and criminal penalties for transmitting private sexual material or a if there has been 3 civil penalty orders made against a person.

In principle the laws are welcome.  In practice it really depends on the vigour of the eSafety Commissioner.  Australia has a poor reputation in regulating privacy infringing behaviour.  The amendments themselves highlight a very process laden means of achieving a legislative end. It

What is more than passing strange is that for all of these amendments the Government has not provided individuals with the power to take enforceable action relating to an interference with their privacy, either under the Enhancing Online Safety or the Broadcasting Acts.  Everything must be channeled through the eSafety Commissioner.  That might work for some or many people but others may wish to take steps themselves, such as obtaining compensation as well as taking down the images.  It is a somewhat patronising omission. It is also the triumph of bureaucracy over freedom of the individual to take action in their own right.

A statutory cause of action for interference with privacy is the simple and straightforward way of giving individuals a right to take action.   This has been suggested for many years but most formally by the Australian Law Reform Commission in 2008 and again in 2011.  It has been emphatically rejected by the current government and ignored by the previous government.  In short there has been a bipartisan policy failure in this area. Read the rest of this entry »

The Government agrees to amend My Health Records Act and provide greater privacy protections. It would be better to ditch the legislation entirely.

July 31, 2018

The My Health Records Act 2012 is a dreadful piece of legislation.  Privacy professionals have known this for some time.  They have been saying it for some time.  While the system involved voluntary placement of records onto the systems the Government could avoid grumblings from various groups.  The Privacy Commissioner was on an extended tea break on the issue.  Nothing new there. So the legislation was untouched and the agency responsible for its management, the ADHA, filled forms, ignored complaints and generally kept a low profile.

Then the opt out provisions came into effect and various commentators “discovered” the privacy invasive aspects of the system. Janet Albrechtson took up the cudgels as did Peter Van Onsolen at News Ltd.  Similar negative treatment came from Read the rest of this entry »

Merry Christmas and my traditional reprint of Yes, Virginia there is a Santa Claus..

December 25, 2017

I wish all readers, regular, occasional and first timer, a happy and holy Christmas.

Since I was a school kid I was impressed with the Editorial of the New York Sun titled Yes, Virginia there is a Santa Claus.  It was first published on 21 September 1897.

It is a wonderful piece of writing.  Clear, concise and full of warmth without being mawkish. It can read a number of levels, starting with the intended reader, the 8 year old Virginia O’Hanlon.  As prose it makes the current offerings in Australia, and elsewhere, dreary and bloated by comparision.

The story of the author is impressive in and of itself.

It is also proudly optimistic.  A mindset we all should have, no matter how hard it can be.

To write as well as Francis Pharcellus Church, the author, would be a wonderful achievement.

Merry Christmas.

The article provides:

We take pleasure in answering thus prominently the communication below, expressing at the same time our great gratification that its faithful author is numbered among the friends of The Sun:

Dear Editor—

I am 8 years old. Some of my little friends say there is no Santa Claus. Papa says, “If you see it in The Sun, it’s so.” Please tell me the truth, is there a Santa Claus?

Virginia O’Hanlon
115 West Ninety Fifth Street

Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence.

We should have no enjoyment, except in sense and sight. The external light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies. You might get your papa to hire men to watch in all the chimneys on Christmas Eve to catch Santa Claus, but even if you did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived could tear apart. Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! He lives and lives forever. A thousand years from now, Virginia, nay 10 times 10,000 years from now, he will continue to make glad the heart of childhood.

It has been eulogised regularly since then, such as by the New York Times on the 100th anniversary of the publication.  A nice article but nothing of the simplistic brilliance of the original.

Letters patent issued in Banking Royal Commission

December 19, 2017

The Government has issued the Letters Patent into the Royal Commissioner into misconduct in the Banking, Superannuation and Financial Services Industry.  It will be a frenetic time to meet the timetable set down by the Government, an interim report by 30 September 2018 and a final report by 1 February 2019.  In practical terms that means Read the rest of this entry »

Attorney General announces reference to the Australian Law Reform Commission into class actions and third party litigation funders

December 15, 2017

The Commonwealth Attorney General has announced a formal reference to the Australian Law Reform Commission, made on 11 December 2017, of class actions and litigation funders.  The heading of the media release leaves little doubt on what is on the Government’s mind: Protecting Australians from exorbitant legal fees.  It is hard to see class actions being abolished given Read the rest of this entry »

Attorney General announces Security of Critical Infrastructure Bill 2017 to deal with cyber security threats

October 10, 2017

The Attorney General today announced that it will introduce into Parliament a bill to give powers to the Minister to issue directions to mitigate national security risks.  Clearly this relates to the ongoing and increasing threat posed by cyber attacks.  It has released an exposure draft bill for comment until 10 November.

Some notable provisions of the Bill Read the rest of this entry »

A massive data breach suffered by US Credit reporting firm Equifax, affecting 143 million customers data, highlights the need for proper data security and privacy protections

September 8, 2017

Sometimes  the scale of data breaches reach such a point that it numbs the reader. Yahoo’s breach affected one billion accounts in 2013 and 145 million eBay accounts were affected in 2014. That the figures defy easy comprehension doesn’t Read the rest of this entry »

United Kingdom to criminalise re identifying anonymised personal information and give consumers greater rights on how their information is processed

August 10, 2017

The United Kingdom Government has announced  a major reform to its data security legislation.  The package of measures to be legislated Read the rest of this entry »

Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419 (21 July 2017): setting aside statutory demand, Graywinter affidavit, genuine dispute

July 26, 2017

The Supreme Court, per Randall AsJ, considered an application to set aside a statutory demand in Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419. The key issue was whether issues ultimately relied upon were raised in the Plaintiff’s initial affidavit, filed within 21 days of the statutory demand being served and the scope and operation of Graywinter affidavits.

FACTS

The debt relied upon in the statutory demand Read the rest of this entry »

Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 (7 July 2017): power to make a substitution order, exercise of discretion, Rule 9.09 of the Civil Procedure Rules

July 23, 2017

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »