Online Safety Amendment (Social Media Minimum Age) Bill 2024
The law attempting to prevent children under 16 accessing social media was rushed through last night.
It does not impose any requirements on children or their parents. It requires the platforms to take reasonable steps to prevent children under 16 from having accounts.
It does not come into effect for at least 12 months and I predict it will never come into effect. It’s an empty gesture to win votes, by a government that stood by while vapes addicted a new generation to nicotine and gambling ads destroy adult lives while recruiting a new generation of gamblers.
The heart of the new law is the definition of which platforms it applies to:
63C Age‑restricted social media platform
(1) For the purposes of this Act, age‑restricted social media platform means:
(a) an electronic service that satisfies the following conditions:
(i) the sole purpose, or a significant purpose, of the service is to enable online social interaction between 2 or more end‑users;
(ii) the service allows end‑users to link to, or interact with, some or all of the other end‑users;
(iii) the service allows end‑users to post material on the service;
(iv) such other conditions (if any) as are set out in the legislative rules; or
It is certainly unclear whether communication apps like Facebook Messenger “allows end-users to post material on the service”. What is certain is that the platforms the Act will try to regulate are owned by the biggest businesses in the world and in practice have far more power than the Australian government. The Greens valiantly moved this amendment to the motion to pass the bill:
At the end of the motion, add “, but the Senate notes that:
(a) the Joint Select Committee on Social Media and Australian Society heard from experts that banning young people from social media will not make platforms safer for anyone, and instead recommended tougher action on platforms including a legislated duty of care; and (b) the attempt by Labor and the Liberals to ram this ban through without genuine scrutiny in under a week is rushed, reckless and ignores expert evidence”. Peter Vogel, Solicitor,
29 Nov 2024 The “Plague cruise” On 8 March 2020, the cruise ship Ruby Princess departed from Sydney for a 13-day cruise to New Zealand. COVID-19 had recently arrived in Australia and had started to spread. Amongst the passengers were retired nurse Susan Karpik and her husband Henry, a retired police officer. Henry contracted COVID-19 and became very ill, given only a few days to live. Fortunately, he survived. Susan also contracted COVID but was not severely affected. Susan Karpik was lead applicant in a class action against Carnival plc, charterer of the Ruby Princess which came to trial in 2023. [1] Mrs Karpik sought damages for personal injuries and distress and disappointment of more than $360,000. The judge found that both Mr and Mrs Karpik’s COVID was ‘more likely than not’ contracted on the voyage. Mrs Karpik claimed Carnival had been negligent, they should have cancelled the cruise. While negligence is the usual cause of action in cases like this, the plaintiffs also advanced claims under the Australian Consumer Law (ACL). Consumer Protection under the Australian Consumer Law The ACL includes guarantees that services provided to a consumer must be reasonably fit for purpose and delivered with due care and skill. These guarantees cannot be excluded in a contract. The ACL also prohibits misleading conduct, for example overstating the fuel economy of a car. It is important to understand that these laws apply only to services supplied by a consumer in the course of trade or commerce, that is, services which a consumer pays for. They would not apply to a public hospital, for example, or someone providing a service voluntarily as a public service. They would not apply to a public school, but would apply to a private school, medical services you pay for, entertainment, shops, hairdressers etc. The Ruby Princess case is significant because the Court upheld Susan Karpik’s claims that Carnival breached the consumer protection provisions of the ACL because: Accordingly, Susan Karpik and the other members of the class action were entitled to damages for “distress and disappointment”. Although the amount was small ($4,400 which was what she paid for the cruise) the principle is important – it was not necessary for her to produce medical experts to prove she had a physical or psychological injury, the ruined holiday and the distress of seeing her husband on life support was sufficient to warrant an award of damages. Some highlights of the case The Ruby Princess judgment includes some very detailed discussion about COVID risk mitigation. This was central to the question of whether Carnival had exercised due care and skill and done everything reasonable to fulfil their promise of a safe and enjoyable cruise. The complete judgment (1,059 paragraphs) can be downloaded here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1280 The discussion of “Failure to implement reasonable precautions” starts at par [788], and includes: Mrs Karpik claimed she suffered long covid following her mild infection [939]-[983]. This was the subject of extensive evidence and consideration concluding at [984] that the judge was not persuaded. This is an informative example of the Court’s approach to considering expert evidence of long covid. Pointers for future litigation The Ruby Princess case illustrates how consumer laws might be applicable to many situations where service providers are not taking due care to protect consumers from risk of contracting COVID or other infectious disease. Peter Vogel, NSW Solicitor 8 May 2024 [1] KARPIK v CARNIVAL PLC (The Ruby PRINCESS) [2023] FCA 1280 16 Nov 2023: NSW District Court Justice Russell found Qantas guilty of discriminating against a work health and safety representative who told co-workers not to clean planes from China the day after Australia closed its borders to such arrivals. Qantas ground staff employee Mr Theo Seremetidis was a health and safety representative (HSR) at the start of the pandemic. On 27th Jan 2020 some ground crew expressed concerns about cleaning a flight from China. Theo, as their safety representative, told them they have the right to refuse unsafe work. He asked Qantas what risk assessment had been done, and why they had not consulted with workers. Qantas did not respond. The next day, Qantas sent an email to staff, – excluding Theo – saying “Very low to zero risk of getting the virus. Not airborne. Masks and gloves not required. Best defence is usual hygiene rules – washing hands properly for 20 seconds”. Qantas gave three staff who refused to clean a plane arriving from China a letter warning them they would be disciplined if they refused again, because “the risk of aircraft workers contracting Coronavirus as a result of working on aircraft is negligible”. On the 1st Feb, the government announced a travel ban from mainland China. Theo also discovered a journal article that suggested coronavirus had been caught from asymptomatic people. Theo told his co-workers they did not have to clean planes from China if they felt it was unsafe. The next day, a Qantas representative said to him “Theo, we’re standing you down today because you’re causing anxiety to workers because you’ve ceased unsafe work.” The judge found no evidence that Theo was causing anxiety, and that “The reason for standing down Mr Seremetidis on 2 February 2020 was, as found and discussed above, because Mr Seremetidis gave directions under s 85 of the WHS Act for workers to cease unsafe work.” Stop-work directions under s 85 must be “reasonable”. The judge said “I find that Mr Seremetidis held a concern which was reasonable that cleaning planes arriving from China posed a health risk to workers. From the perspective of an ordinary and reasonable person in the position of Mr Seremetidis, and taking into account the course of events up until 2 February 2020, his concern was neither fanciful, illogical or irrational. I find that it was reasonable. Thus, one of the elements for the exercise of a s 85 power has been established by the evidence” and “The step taken by the Federal Government on 1 February 2020 of closing Australia’s borders to one-fifth of the people on earth demonstrates that the risk posed by Coronavirus to those exposed to it was a serious risk.” However, the Act requires the HSR to consult with the employer before issuing a stop-work order, and the judge found that Theo did not do this. Qantas had not stood Theo down because of this failing, “It was simply that he had in fact given the directions”. This was unlawful and “all of the elements of the charge have been established beyond a reasonable doubt.” The penalty will be decided at a Sentencing Hearing. The maximum penalty for a company is $634,700 and $127,050 for any person involved. The Court can also order Theo be paid compensation (any amount considered appropriate) or that his job be reinstated. Summary by Peter Vogel, solicitor, 16 Nov 2023 Fiona* lives with type 1 diabetes which puts her at elevated risk should she contract COVID-19. Her son attended a NSW primary school during 2020-2021. When schools returned to the classroom, she applied for leave keep her son home to avoid the risk of infection at school. The school refused, and eventually threatened to take Fiona to court if he did not return to school. Fiona claimed that the NSW Department of Education discriminated against her and her son by not allowing “home learning” even though her doctor provided a letter recommending her son not attend school while the risk of COVID-19 was high. The claim of disability discrimination was initially dismissed by NCAT (NSW Consumer and Administrative Tribunal). Fiona appealed, and the decision was today overturned by the Appeal Panel. The Appeal Panel agreed with Fiona’s submission that the Principal has a discretion to grant leave for any reason and the refusal to do so was discriminatory, particularly when the same Principal had granted leave to a child whose parent was undergoing chemotherapy. Fiona argued that: (a) Whether the student was able to attend school or not is irrelevant. The issue is whether they could do so as safely as a child whose parent was not disabled. In this case, medical evidence and opinion was that the Appellant’s child was at higher risk of injuring his mother than other children whose mother was not a high risk. (b) Making education available only if the child attended in person, when a viable, safer alternative was available and requested, is analogous to making education available only in classrooms that are not accessible by wheelchair. It would be no answer to a claim that such conduct was discriminatory to say “Neither the applicant nor child were denied the benefit of attending school” because children in wheelchairs could look in through a window. The Appeal Panel agreed. They noted that “We find that Ms Parker [the Principal’s] state of mind was that whilst she was willing to readily approve the application for the parent undergoing chemotherapy ‘in order not to compromise the parents having no immune system operating’ she doubted that the Appellant’ s condition could be equally worthy ‘bearing in mind there were no cases in our community and at all through 2020’… We further find on the evidence that the different health conditions are not materially different in respect of their worthiness with respect to an application for flexible home learning services and exemption from attendance at school.” The complaint was substantiated on all grounds and the Department of Education was ordered to pay FVN $15,000 compensation for hurt, distress, inconvenience and humiliation. Full decision: FVN v Secretary, Department of Education [2023] NSWCATAP 301 https://tinyurl.com/3mcbxdaz The Fair Work Act was amended in 2023 to provide better flexible working arrangements: · Eligible employees can request changes to their working arrangements · Eligible employees include parents, carers, those with disabilities, over 55, experiencing family violence, or supporting someone experiencing family violence · Employers can only refuse on reasonable business grounds Merely being eligible does not mean your request has to be granted – you need to show that as well as being in one of the eligible categories, there is a good reason for the flexibility you request. For example, if you have caring responsibilities every second week, you cannot ask to work from home every week. If you establish good reasons for the arrangement you want, the employer has to grant it unless they have “reasonable business grounds” for rejecting it. What exactly that means will become clearer as cases are brought before the Fair Work Commission. So far there have been few cases published since these amendments. One recent case (Peter Ridings v FedEx) did consider “reasonable business grounds”. Ridings’ wife and children have disabilities and he wants to continue working from home as it enables him to care for them while doing his job. FedEx did not provide evidence of decreased productivity or efficiency when Ridings worked from home, nor did they raise any performance issues. FedEx’s reasons were too generic and not tailored to Ridings’ specific circumstances or request. They made general claims about in-person collaboration, interaction, knowledge sharing, training, support, and culture-building but did not convince the Commission that these were not possible under Ridings’ proposal or that they would occur even if he were in the office. The ‘Ruby Princess’ case and the future of COVID litigation
Qantas convicted of crime for standing down Health and Safety Representative.
Refusal to grant “School pandemic leave” was unlawful discrimination: NSW Tribunal decision.
Peter Vogel, Solicitor for SVN, 8 Nov 2023.
*Fiona is a pseudonym, for privacy reasons.Working from Home and the Fair Work Act.