[AusNOG] Legal Challenge To Meta Data Laws

[Mark Newton]

On Sep 10, 2015, at 10:30 AM, Andrew Kitchen <a.kitchen at xi.com.au> wrote:

> At this early stage it would be around the broadcasting act vs meta data laws and which law takes precedence.  

They don’t contradict.

> I feel the legal defence would be around the products themselves the competing laws and how we have contradictions in them then and what law is true and correct, then you would tie in the disadvantages this places on whole of business providers, or the extra costs to split off the business into separate entities etc then you would look at case law to backup your argument.

You won’t win that fight. There is already an Acts Interpretation Act which says what to do if two statutes contradict (generally: the more recent one wins).

But you’d need to demonstrate that they contradict in the first place, and I can’t see any reason to say that. 

> Yes agreed doing it just around anti-competitve alone wouldn’t work but you can use it and even tie it into Australian Consumer Law as well and Trade Practices Act saying well if a company was to do this then it would be illegal so why can the government get away with it….

Governments are inherently able to get away with things companies can’t get away with. That’s what a Government is.

> Leaving it up to each service provider isn’t acceptable as one service provider will say based on what the AG and the law has said then I need to retain x,y,z where another service provider might say I only need to retain x and z.

That’s perfectly fine. One of them will be right, one of them will be wrong, and a court will eventually sort it out. That’s how the system is supposed to work.

A High Court judge isn’t going to issue an injunction to prevent the operation of the law at all; They’ll dismiss your (extremely expensive, time consuming) case, and say that the Commonwealth should be working out which interpretations are right and wrong by litigating selected edge cases individually.

You haven’t actually talked to a lawyer about any of this, have you.


   - mark



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