Obligatory top-10 tech predictions for 2012

I think there's some rule that if you're involved in technology, you have to predict stuff for the next year.

It beats me why, because everyone always seems to get them wrong - maybe the tech press wants a piece the kudos given to economists for making predictions which inevitably turn out to be incorrect.

Anyhow here's mine:

1. Apple will release another iThingy. Hipsters will buy it, regardless of the fact that it's only an incremental release on the previous iThingy. It's times like this I wish I had a Newton - so I could say: "I was using tablets before they were cool. Or even worked properly".
2. Android will continue to inexplicably gain market share, despite still not being able to crack the lucrative hipster market. Apple will continue to sue any android devices that look like they might - and lose. Hipsters will continue to prefer iThingys.
3. Windows Phone will continue to languish mainly because it's about as un-hipster as you can get.
4. Google Plus will continue to grow despite no-one actually admitting to using it. The tech pundits will continue to pronounce its failure until the first mainstream media outlet proclaims it as the new tool of choice for cyberbullying/cyberstalking/farmville and demand "something be done about it". After this, Google Plus will be a real alternative to Facebook.
5. Facebook growth will continue to slow. Pundits will continue to proclaim the death of Facebook. Facebook will still have eleventy billion members.
6. Diaspora will continue to be cool despite no-one actually admitting to using it, or indeed knowing what it is. 
7. Twitter will continue to grow in proportion to those that complain about it.
8. Rightholders will continue to push for more draconian copyright laws. Consumers will get better at using encryption.
9. The State will continue to try to crack down on <insert internet evil here> by proposing even more draconian laws. Citizens will get better at using encryption.
10. 2012 will be the year of the Linux desktop :)

There you have it - 2012, the year that tech will continue doing pretty much what it's done since 2006.

Sceptics and Ideologues

Scientific scepticism (or rational scepticism) is the practice of questioning or doubting the veracity of conclusions that lack empirical evidence or rely on non-reproducable experimentation. For example, the Berkely Earth Project set out to test climatologists research:

"Existing data used to show global warming have met with much criticism. The Berkeley Earth project attempts to resolve current criticism of the former temperature analyses by making available an open record to enable rapid response to further criticism and suggestions. Our results include our best estimate for the global temperature change and our estimates of the uncertainties in the record."

-From Berkeley Earth Project FAQ

The project took a sceptical approach to the earth temperature measurement to test some of the assertions made against climatologists. This independent analysis of both the data used by the IPCC and the arguments put by critics of climate change is an example of a sceptical, scientific method of analysis.

In contrast, an ideologue is a partisan advocate of a particular position or theory - for example [Emphasis mine]:

"Climate change sceptic Ian Plimer's book "How to Get Expelled from School: A Guide to Climate Change for Pupils, Parents and Punters" arms children with 101 questions to challenge their teachers...

The 250-page book includes a list of questions intended to embarrass poorly prepared teachers."

Plimer and his denialist friends are very fond of using the title of "sceptic" because the term lends them some sort of scientific credibility. However, Plimer is not a sceptic, he is an ideologue and his book is pure ideology.

It is little surprise that he got one of Australia's most ideologically-driven leaders to launch it.

Of pizza and the privatisation of public policy

Pizza has been declared a vegetable.

The United States Department of Agriculture's (USDA) proposed food standards were undermined by a congressional spending bill that enabled pizza to be counted as a vegetable. The bill was the result of lobbying by the frozen food industry to ensure that pizza and chips would still be available for school lunches.

In addition the bill will:

• Block the Agriculture Department from limiting starchy vegetables, including corn and peas, to two servings a week. The rule was intended to cut down on french fries, which many schools serve daily.
• Allow USDA to count two tablespoons of tomato paste as a vegetable - which allows pizza to be counted as a serve of vegetables. Federally subsidized lunches must have a certain number of vegetables to be served.

The intervention and lobbying by the fast-food industry to undermine the science-based public policy making of the USDA is yet another example of the increasing trend to privatise public policy making.

Interest groups and lobbyists have disproportionate sway over lawmaking, and in some cases have been able to  get lawmakers to completely abrogate their responsibility to legislate in areas of public policy. So much so that areas that were once the purview of government are now almost purely regulated and enforced by private interests.

This is particularly the case in intellectual property (IP) policy, where industry lobby groups have monopolised the public debate so that they virtually write the legislation for lawmakers to pass.

The recent "Stop Online Piracy" (SOPA) bill is one such example. The bill, if made into law, would give content publishers unprecedented powers to censor and control the publication of online content - making the content  publishers ultimate arbiters of what can be published on the internet. Through laws such as these, Governments have bestowed arbitrary quasi-judicial powers upon powerful interests, removing requirements for due process, natural justice or evidentiary rules - thus shirking their responsibilities to legislate public policy or protect the public interest.

The powers that the bill confers have been likened to the powers that the Chinese government executes over internet content through the "Great Firewall" albeit that the Western version is executed by private, rather than government interests. However, like the Chinese Firewall, the public can not dismantle this policy by excercising their democratic powers - the interests of this private plutocracy are just as dictatorial and totalitatarian as the Chinese Government.

In Australia too, the government has abrogated its responsibility to the public on IP policy by signing up to secretly negotiated "free-trade" treaties such as the Trans-pacific partnership.  The government is also refusing to take a leadership role in regulating IP infringement on the internet - preferring to hand that process over to vested interests in the ISP and content publishing industries rather than legislating in such a way that provides a balance between industry interests and the public interest.

The pervasiveness of the ideology that advocates that public policy is best executed by private interests relegates lawmaking to mere administration and democratic power to tinkering around the edges of issues. 

This abrogation of public policy making by lawmakers has not only had a chilling effect on the rights and freedoms of people, but it has also had serious effects on the world economy (global financial crisis), environment (climate change) and public health and wellbeing (health policy). However, lawmakers are satisfied to leave these important issues up to private interests instead of providing political leadership in the public interest and when a government does try to allow its citizenry to have a say, it is loudly shouted down and decried by those powerful interests to which an appeal to democracy would disadvantage the most.

Various governments have handed over some of the most important areas of public policy to powerful private interests to varying degrees. The economy, the environment, public health and culture have all been privatised to varying extents.

The virtual privatisation of these areas of public policy has collectively given society the global financial crisis by handing the economy to bankers, global warming by acquiescing to industrialist interests, a global obesity epidemic by pandering to the fast-food industry, lack of access to drugs in developing countries by granting broad patents to pharmaceutical companies and limitations on free speech and  human creativity by the over-regulation of IP.

And as we complain about our politicians tinkering around the edges of what was democracy, at least we can drown ourselves in the vacuity of culture that is left to us by the plutocrats and reach for another slice of pizza.

Well, at least it's a vegetable.

The Communications Alliance proposal: a kinder, gentler 3-strikes

The Communications Alliance has released its proposal for dealing with rightsholders' complaints about ISP's customers engaging in alleged copyright infringements over their networks. The basic structure of the proposal is to provide rightsholders and ISPs a clear way of dealing with allegations of copyright infringements. However, in effect it is another variation of a graduated response system, albeit a kinder, gentler three-strikes.
The key features of the model include:

• An independent panel for the assessment of alleged infringement and appeals;
• A system for accrediting rightsholders (including the systems they use for detecting alleged infringements);
• A system of notices with an emphasis on compliance and education (including specified time frames for alleged infringers to respond or amend their behaviour);
• A "reset period" when further infringement has not occurred for a specified timeframe;
• A system of discovery of an alleged infringer's details with a view to private legal enforcement by rightsholders (where compliance has not occurred); and
• A funding model

This proposal broadly reflects the comments of Emmet, J in Roadshow Films Pty Limited v iiNet Limited[2011] FCAFC 23 and the proposal put forward by iiNet [PDF] in the wake of the case.

Considering that the Australian Federation Against Copyright Theft (AFACT) rejected this proposal and have appealed to the High Court (HCA), it is unsurprising that rightsholders have rejected this model, instead continuing to push for models that curtail alleged infringer's right to the presumption of innocence and due process.

In addition to the possibility of a HCA win, rightsholders are also relying on a legislative response from the government who have indicated that they would prefer to hand that process over to vested interests in the ISP and content publishing industries rather than legislating in such a way that provides a balance between industry interests and the public interest.

In the current litigious environment, the Communications Alliance proposal is a relatively balanced approach to the issues that AFACT identified in its complaint while maintaining the interests of ISPs.

Fundamentally, the proposal does not address the issue of the over-regulation of copyright that has created the problem in the first place. As the Communications Alliance itself states:

"Australian consumers' ability to legally access this content in a timely and affordable manner does, however, vary significantly from sector to sector (eg; release of TV programs and movies in Australia can lag months behind US releases). This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and therefore copyright infringement."

With vested interests controlling government policy on copyright regulation (particularly through international treaties such as the Trans-pacific partnership), it is understandable that rightsholders would refuse to accept that their own actions contribute to online infringement. It is also not surprising that they would continue to push for unbalanced anti-consumer laws to maintain their business models.

To their credit, at least ISPs have made an attempt to balance some of the concerns that have been raised about graduated response systems. However, this proposal has been developed through the prism of ISP interests to avoid being held liable for infringement. The model itself is largely a reflection of the comments of a Federal Court judge ruling on a law that successive governments have largely allowed to be influenced by the interests that are advantaged by those laws.

It is the government's responsibility to legislate to balance the interests of all stakeholders. However, its irresponsible abrogation of its responsibilities to vested interests has resulted in the litigious environment that regularly ignores the interests of the citizens that the government is supposed to represent.

It is time that the market failure that has been created by the over-regulation of intellectual property is re-examined through the prism of efficient and effective regulation. This regulatory analysis ought balance the rights of rightsholders, ISPs and citizens to encourage a dynamic market sparking the innovation that the protection of intellectual property was supposed to achieve in the first place.

The 1% strikes back: QANTAS holds the economy to ransom

Last night, Fair Work Australia (FWA) ruled to terminate all industrial action in the QANTAS dispute. Undoubtedly there will be much written blaming the unions for this industrial chaos, but FWA makes it clear that it was the threatened action by QANTAS that was the deciding factor in terminating the action.

The issue arose because of an application by the Federal Government under s424 of the Fair Work Act (the Act). Section 424(1) states:

424 FWA must suspend or terminate protected industrial action—endangering life etc. Suspension or termination of protected industrial action
1. FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
   
   1. is being engaged in; or
   2. is threatened, impending or probable; if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
   3. to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
   4. to cause significant damage to the Australian economy or an important part of it.”

FWA ruled that the criteria had been met under s424, particularly 424(1)(d) with respect to the aviation, tourism and associated industries.

However, it was not the protected action taken by unions that fulfilled the criteria but the threatened industrial action by QANTAS.

At [10], FWA ruled (emphasis mine):

"It is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries. The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services."

In its ruling on making the order to terminate, rather than suspend protected industrial action, FWA further referenced the uncertainty cause by the employer strike:

At [15] (emphasis mine):

"...Suspension is necessarily temporary - it leaves open the possibility there may be a further lock out with its attendant risks for the relevant part of the economy. That is, a risk the situation we are now dealing with will recur."

In other words QANTAS' threats to the wider economy were the deciding factor in this order, not the union action.

The right to strike has been curtailed to such an extent that it is almost impossible for employees to withdraw their labour to obtain fair working conditions such as the 8-hour day, sick leave, holiday pay, maternity leave and many other conditions that we now take for granted. The justification for this curtailment of labour to take action has always been that industrial action by labour can have seriously detrimental effects on the economy.

The message from this, is that the 1% - the corporations- has unfettered power and is prepared to use it regardless of the detrimental effects to the economy or the country. The almost unfettered right to strike by capital, has held the Australian economy to ransom. FWA has made it clear that it was QANTAS' actions that were the threat, not the union that threatened the economy. The economy cannot be  held to ransom by the industrial action of capital, just as it cannot be held to ransom by labour.

It is time the the Government governs for the 99%  and curtails the rights of capital to strike as they have curtailed the rights of labour.

QANTAS' potentially unlawful action: a brief analysis

Today, QANTAS has decided to ground all of its fleet, both domestic and international, in response to the continuing industrial dispute between QANTAS and unions.  In response the Government has intervened by applying to Fair Work Australia (FWA) to suspend all industrial action (both union and QANTAS) under s424 of the Fair Work Act - FWA will be hearing the matter of suspending action tonight.

Outside of this initial action in FWA, there are other issues arising from QANTAS' actions that may be scrutinised in further subsequent actions in FWA, some of which could find QANTAS in breach of the Act.

There are a few ways that this dispute could play out and QANTAS may actually be significantly worse off by taking this action. However, much of this law is yet to be tested and it is difficult to predict how it will turn out - particularly in regard to the action that QANTAS has taken.

Industrial action, which includes employer response action, is only protected if it meets the criteria in Part 3, Division 2 of the Act. Employer response action (such as lock-outs) is governed by s411 of the Act.

s411 states:

Employer response action for a proposed enterprise agreement means industrial action that:

1. is organised or engaged in as a response to industrial action by:
   
   1. a bargaining representative of an employee who will be covered by the agreement; or
   2. an employee who will be covered by the agreement; and
2. is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and
3. meets the common requirements set out in Subdivision B.

The action is indeed in response to industrial action by those  classes of people in s411(a)(i) and s411(a)(ii), however it is much broader than that with the potential to affect a much broader class of employees. The breadth of this action may not reasonably be seen to be action only in response to industrial action in 411(a) - if the action is too broad, it could be that the action is unprotected.

The "Common Requirements" referred to in s411(c) are defined in s414 of the Act. These too, may have been contravened by QANTAS.

S414(5) gives the notice requirements for employer response action:

Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

1. give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
2. take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Considering the extremely sudden nature of the lock out, it appears that the notice requirements in s414(5)(i) may not have been met (the AWU has claimed that they had no notice). It  also appears unlikely that the notice requirements in s414(5)(ii) would have been met either. If these notice requirements have not been met then QANTAS' action in grounding its entire fleet, would be unprotected.

Taking unprotected industrial action may make QANTAS liable for fines or civil action. Tests of these sections will undoubtedly require examination by higher courts than FWA, potentially even up to the High Court. Whatever the result, it is likely to change the industrial relations landscape in Australia by significantly curtailing or expanding an employer's ability to take industrial action against its own employees.

The procedural fairness of unfair dismissal

There has been considerable agitation by previous Howard Government Ministers to re-animate the corpse of WorkChoices with calls for the Liberal Party to consider further changes to the industrial relations system.  The current shadow minister for Industrial Relations, Senator Eric Abetz was quick to hose down the potential restoration of WorkChoices, however, he could not help but throw in the usual Liberal Party lines attacking the current Fair Work system. In particular Sen. Abetz alluded to a "burgeoning industry" of "go-away money" to settle unfair dismissal claims.

Unfair dismissal has been a particular focus of the Coalition, often stating that is is a brake on employment, despite evidence to the contrary. It is worthwhile to examine the Fair Work regime of unfair dismissal to see just how 'unfair' unfair dismissal actually is to the employer.

A person is protected from unfair dismissal if they have been employed for the minimum employment period (between six months and one year) and if they are covered by a modern award, enterprise agreement and are under the high-income threshold.

Unfair dismmissal comprises of the following elements:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

So, in the case of a small business, there is a simple way to avoid any claim, and one would imagine that if a larger business followed the Code and employee would have difficulty proving that the dismissal was unfair, unjust or unreasonable.

The fair dismissal code merely applies the principles of procedural fairness to dismissal situations. The principles of procedural fairness require that a person has a fair hearing, free from bias, a decision based on evidence and an ability for the person affected to respond.

So in the industrial context, a person who is to be dismissed should be dismissed on the basis of evidence and also allow a person who is affected by a decision to know the accusation against them and to respond.

At its most basic, the code requires that an employer makes the employee aware that there is a problem with their performance and give them a chance to respond an rectify the problem. It does not protect an employee who has committed serious misconduct such as theft, fraud or occupational health and safety breaches.

The ability of an employee to have the chance to be informed of and respond to any identified performance problems is consistent with the principles of procedural fairness, so it is not unreasonable to apply this administrative burden on business.

So one must question where this burgeoning industry of "go-away" money is coming from.

Firstly, it is likely that this "industry" is being fed by small businesses not following the code, preferring to summarily dismiss under-performing or disliked employees due to a disconnect between the employers perceptions of serious misconduct and those that are actually proscribed by the law.

Secondly,  it is likely that employers and employees are coming to a settlement outside of the remedies imposed by Fair Work Australia (FWA) rulings because the most frequent remedy for unfair dismissal is that of reinstatement rather than compensation (except where the relationship has soured to such an extent that it is impractical). If this is the case, then the employers themselves are choosing to "pay out" employees (something which they probably could have done before going down the dismissal route). This is not imposed by the Fair Work regime, it is created by employers who have not dismissed employees correctly.

Ultimately it is up to businesses to follow the law, and considering that the law only incorporates the principles of procedural fairness and natural justice, it is hardly onerous. Furthermore this only really relates to summary  dismissal, there is nothing that prevents an employer from dismissing an employee so long as the necessary notice is given (or pay in lieu of notice) and entitlements are paid out.

What businesses are really after is the ability to avoid their responsibilities for notice and entitlements as they do not see these as part of the total pay package to which employees are entitled - putting it under the guise of not being able to sack under-performing employees.

The media too, is rife with stories of seemingly outrageous conduct by employees successfully being appealed to Fair Work Australia. However, when one actually looks past the media reporting to the actual facts of the case, it is often the employer who has been unfair, unjust or unreasonable or merely has not provided evidence.

It is not an unreasonable burden on business that they treat their employees fairly, nor is it unreasonable to expect them to follow the law. What is unreasonable is that businesses expect that the law ought to be changed to allow them to sack at will for whatever reason and avoid paying entitlements - all under the guise of 'flexibility'.