Companies have always been required to keep registers of their members. The register is a public document which is open for inspection by a member without charge and by any other person upon payment of a fee. When copies are requested they must be provided in exchange for a fee. The provisions dealing with the maintenance of and access to registers are currently found in Chapter 2C of the Corporations Act 2001 (Cth). According to the Attorney-General these provisions were intended to facilitate "rapid and easy access" by the public to a company's register and to do so "at reasonable cost": Second Reading Speech, First Corporate Law Simplification Bill 1994 (Cth) (House of Representatives, Parliamentary Debates (1995) vol HR 199), pp 709, 712. The issue in this case is about the quantum of the fee that can be charged for a copy of the register. Each side engaged senior counsel to put its case. Experts have been called to give their views. Witnesses have been examined and cross-examined. The cost to each party is in the tens of thousands of dollars. So much for easy access at a reasonable cost.
It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.
The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.
Recognising the possibility that this new policy would contravene the exclusive dealing provisions in s 47 of the Trade Practices Act 1974, eBay made a 'notification' to the ACCC under s 93 of the TPA. The effect of the notification is that while it remains in force, the conduct described in the notice cannot contravene s 47(1), but if the ACCC is satisfied that the conduct has the purpose or likely effect of significantly lessening competition, and the public benefits of the conduct will not outweigh the public detriments, it can revoke the notification.
The ACCC called for submissions from the public, and invited a number of 'interested parties' to make submissions. I think it's safe to say that they were overwhelmed by the response. The ACCC received over 500 submissions, the majority from irate eBay users. I understand that this is the highest number of submissions that the ACCC has ever recieved on an exclusive dealing notification, by a large margin. A number of organisations also made submissions, including EFA, American Express, the Australian Securities and Investment Commission, the Reserve Bank of Australia, Commonwealth Bank of Australia, and others. Not a single submission supported eBay's proposal.
The ACCC has said they will advise their decision before the new policy is supposed to take effect, on the 17th of June. I think the ACCC is likely to revoke the notification, unless they drink the market-definition koolaid which eBay's tame economists wrote in the annexure to their notification -- an annexure which the public wasn't allowed to see. eBay can then do one of three things:
My money is on options 2 and/or 3.
- Back down and abandon the change. I don't think this is likely, especially since eBay apparently want to introduce this policy globally;
- Appeal the ACCC's decision to the Australian Competition Tribunal; or
- Go ahead with the policy change regardless. Given that the ACCC can't revoke the notification unless they're satisfied that eBay's policy change would contravene s 47(1) of the TPA, eBay would effectively be saying 'we'll see you in court' to the ACCC.
Fuelwatch is designed to address problems of imperfect information, a/k/a information asymmetry, in relation to pricing in the market for retail petrol. Consumers basically have two ways of finding out the current price of petrol - they can drive past a service station and look, or they can try looking on the Internet. However, not all service station's prices are on the Internet, and there is no guarantee that the prices on the Internet are accurate - the service station in question could have recently increased their prices. In Brisbane, I've seen price hikes at the same service station of up to 15c/l from morning to evening on the same day. Consumers also have no way of knowing what the prices will be in the future, except for general trends such as prices being higher later in the week and on weekends, and holiday periods being generally higher.
Suppliers on the other hand, have better information. They know what their current prices are, and they probably know what the current pricing of their competitors is. They also know what their future pricing will be, and they may even know what the future pricing of their competitors will be. Petrol retailers can -- and in some cases, have -- called their competitors and said things like 'I have spoken to some [other competitors] and they are going up to X cents per litre at Y time. Will you support it?' (i.e. 'will you also raise your prices?'). See, e.g. ACCC v Leahy Petroleum [2007] FCA 794 at [913] where the ACCC sued, alleging unlawful price fixing, and failed because the trial judge found there wasn't a 'contract, arrangement or understanding' to fix prices.
The Fuelwatch scheme, as I understand it, will require all retailers of petrol to notify the ACCC (or whoever runs the scheme) the price at which they will sell petrol on the following day. The prices will be available on the Internet, and the retailers can only sell at that price. If the petrol station down the road is undercutting them, they can't drop their prices until the following day.
Whether Fuelwatch will 'work' will depend on whether the pro-competitive effects of consumers having access to better information about pricing (and thereby being able to make better purchasing decisions), and any consequential price competition which this encourages, will outweigh the anti-competitive effects of retailers being unable to engage in very-short-term discounting, possible stagnation of longer-term discounting (i.e. it has been suggested that the weekly 'cycle' of ~15c/l might drop to ~10c/l or lower), and increased compliance costs being passed onto consumers.
Opinionated as I am, I don't know whether it will 'work' or not. There are too many uncertainties, and I can't even make an educated guess.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)The Sydney Morning Herald now reports that:
Online photographs used by media websites to report on the investigation into Bill Henson have been referred to the Classification Board, the Minister for Home Affairs, Bob Debus, said.
...
"Several online images of Bill Henson photographs from media websites reporting on the exhibition at the Rosyln Oxley9 gallery in Sydney have been referred to the Classification Board," he said.
They were referred to the board by the Australian Communications and Media Authority (ACMA), which investigates complaints about online content.
This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.
Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)
Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.
Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.
Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.
I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:
The models in question weren't engaged in sexual activity, or being tortured. That leaves 'plac[ing] in a sexual context', which I doubt they were. I don't think the mere fact that they were naked means they're in a 'sexual context'; arguably the intent of Parliament was to require something more than mere nudity. If they wanted to proscribe nudity, they should have said so.
- 'engaged in sexual activity';
- 'placed in a sexual context'; or
- 'is subjected to torture, cruelty, or physical abuse (whether or not in a sexual context)'.
Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:
Fairly clearly, the subjects of these photos aren't 'engaged in activity of a sexual nature', nor are they in the presence of somebody who is. If the photos were taken before the 2004 amendments commenced, I think a prosecution in reliance on s 91G will fall on its arse.
- 'the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography'; or
- 'the child is in the presence of another person engaged in such an activity for that purpose.'
You read some strange and funny things in court judgments. Following on from my previous posting involving sheep sabotage, we have another judgment involving Islamic dietary laws.
In Tugcu v Mars Australia Pty Ltd [2008] NSWSC 377, the plaintiffs are a family who have for some time purchased Dolmio brand food products (made by Mars Australia) which bear a halal logo on their label, signifying that the ingredients and recipies for those products were certified by the Halal Certification Authority Australia.
The plaintiffs recently discovered that a certain Dolmio product which bore the halal logo contained white wine as an ingredient and was therefore not halal.
Mars Australia appear to have done a collective mea maxima culpa, blaming an error during the development of the label for a relatively new product. They stopped distributing the affected product, arranged for it to be recalled from stores, informed the Halal Certification Authority Australia, and placed a notice on their website.
The plaintiffs brought an action for contravention of s 52 of the Trade Practices Act 1974 (Cth) and sought an injunction preventing the distribution of the affected product in reliance on s 80 of the TPA.
The Court declined to grant an injunction, holding that the balance of convenience did not favour the granting of an injunction, because of the steps already taken by Mars to address the problem. Gzell J went on to say (at [10]) that:
in light of those steps, damages are an entirely suitable remedy.
I'm not suggesting that an injunction should have been granted. Given that Mars was already dealing with the problem in a fairly comprehensive manner, an injunction would have been of little or no utility. But I think it's somewhat strange that Gzell J would say that damages were an appropriate remedy for contravention of a religious law?
My phone has been ringing off the hook today, caused by an apparent announcement from the Commonwealth Attorney-General that they intend to extend telecommunications interception powers currently only enjoyed by a select few intelligence, police, and anti-corruption bodies to private sector organisations dealing with 'critical infrastructure' -- which is a much broader list than you might imagine:
The Australian Government defines critical infrastructure as those physical facilities, supply chains, information technologies and communication networks that, if destroyed, degraded or rendered unavailable for an extended period, would significantly impact on the social or economic well-being of the nation or affect Australia's ability to conduct national defence and ensure national security.
I've done a pile of radio interviews this morning and have TV interviews scheduled for this afternoon with Channel 2, 7 and 9 for their nightly news programs. Tune in to see my ugly mug, if you dare!
Hat tip to Pete Black, whose blog brought to my attention a story on the Times Online which he describes as 'a disturbing report on a new form internet censorship being proposed in the UK'. From the article:
Social networking sites will be required to remove material unsuitable for children, such as nude or violent images and comments, within 24 hours of receiving a complaint, under a tough new code for internet safety.
The Byron Review on e-safety, published yesterday, also recommends that search engines such as Google and Yahoo display a "safe search" button prominently on their home page, to filter out potentially harmful material when children search the web.
The report, by the clinical psychologist and writer Tanya Byron, also recommends that websites promoting suicide be closed, using existing laws on assisted suicide. Those that promote self-harm and eating disorders should also come under greater legal scrutiny.
Dr Byron, a mother of two, said yesterday: "Many parents seem to believe that when their child is online it is similar to them watching television. In fact it is more like opening the front door and letting your child go outside to play unsupervised."
Assuming that Byron's analogy is correct, if a parent opens the front door and lets their child go outside to play unsupervised, and something bad happens, is it the fault of the outside world or is it the fault of the parent?
Dumbing down the Internet to a level where it's supposedly 'safe for children' is not the answer. What's worse, is that this is merely one part of a disturbing trend of the abdication of parental responsability to the government. The Internet is supposedly harming children, so instead of parents supervising and educating their children, the government will tame the Internet. Children are too fat, so instead of parents controlling their children's diet, the government will ban advertising of junk food when they're likely to be watching television. The government isn't a babysitter and neither is the Internet!
You can verify this yourself on the cleanfeed.com website, using their 'test a site' facility on the front page.
But, there's a very serious side to this very funny example:
- Filtering products are inaccurate. There will always be overblocking and underblocking.
- Blacklists and categorisations of websites are subjective. Whether One Nation in fact engages in 'hate speech' is dependant on your point of view and there are arguments for and against.
- Government mandated filtering that has effects such as this may run into constitutional problems. We have an implied freedom of speech on political matters in Australia. If a government-mandated filtering system is going to block access to political websites -- especially websites of actual Australian political parties -- it would seem to be succeptable to a constitutional challenge.
