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G4EBT  > VKREGS   01.09.09 21:04l 239 Lines 7946 Bytes #999 (0) @ WW
BID : BD1073G4EBT
Read: GUEST
Subj: The 1992 Act, and penalties
Path: DB0FHN<DB0FOR<DB0MRW<DB0ERF<OK0NAG<OK0PPL<DB0RES<DK0WUE<GB7FCR
Sent: 090901/1826Z @:GB7FCR.#16.GBR.EU #:31394 [Blackpool] FBB-7.03a $:BD1073G4
From: G4EBT@GB7FCR.#16.GBR.EU
To  : VKREGS@WW


I spent a lot of time researching this via the ACA and Federal Attorney
General's Office (which drafts the regulations). I'm not suggesting anyone
plough through it, but it might be useful for reference.

I've noted the relevant pages of the Act in this bull, and given the
links.

As I earlier explained, the VK licence omits important sections of the
Australian Radiocommunications Act 1992 - some 300 pages of legalistic
jargon, covering every aspect of communications from broadcasting to
amateur radio.

I doubt that even the ACA understand the small print of the Act as their
enforcement officers expertise tends to be in the  RF interference sphere
rather than legal. 

And I doubt the WIA (amateurs themselves) will understand it either.

When - for a second time - a WIA president a year or so ago raised the
problem of on-air abuse by VKs with the ACA, as before, they seemed to 
feel there was little that could be done about it.

That isn't so.

They could amend the terms of the licence by lifting the relevant portions
of the 1992 Act from which the licence derives, bringing to the attention
of amateurs the penalties and the risks that they run. 

In particular, that for civil penalties for breach of S108(2)(d) to be
imposed, the onus isn't on the ACA to prove an offence has been committed,
 it's on the defendant to prove that it hasn't. 

The burden of proof is lower for civil penalties than for criminal ones.

(As in defamation cases).

If this had been spelt out to the few on packet who have - as a course of
conduct over time, undoubtedly committed both criminal and civil offences
contrary to S108(2)(d) perhaps they'd have been a little more circumspect,
rather than leave a paper trail on hard drives all over the world. 

How do you disprove it? 

You can't.

And I doubt that sysops would be so relaxed as to what they allow onto the

WW network if they understood the risks. It's a poor reward for a sysop's
endeavours to be dropped in it by a user.

And if repeater abusers knew they risked an AUS $11,000 penalty and
licence revocation, maybe they too would think twice. But isn't for me to
tell the ACA or WIA how to go about the business.

Enforcement options include financial penalties, imposed either by an
infringement notice by ACA or an order of the Federal Court or Federal
Magistrates Court. (Maximum penalties are higher where they're imposed 
by a court). 

Penalty amounts are expressed in penalty units. One unit equals $110. 
The maximum penalty for a breach of S108(2)(d) is 100 Penalty units 
at $110 = $11,000. (About 5,700 GBP)

Civil Penalties for breaches of the Act:
 
To impose civil penalties the ACA does not need to prove 
the case to the criminal standard (beyond reasonable doubt). 

Civil proceedings under that Act are based on the balance of probabilities
("is it more likely than not, that a reasonable person would be seriously
affronted or offended"...): 

Relevant clip:

Radiocommunications Act 1992 Prepared by the Office of Legislative 
Drafting and Publishing, Attorney General's Department, Canberra. 

(Note: Federal Attorney General).
  
Quote:

50: Division 2-Civil proceedings (page 50):

(1)  If a person (the defendant):
(a)  operates a radiocommunications device in 
a way that is not in accordance with any licence; 

(c)  damages against the defendant in respect of loss suffered by the
plaintiff as a result of the interference, including loss of any benefit
that the plaintiff might reasonably have been expected to obtain but for
the interference;

(d)  such other relief as the court thinks just.

End quote.

S108(2)(d) of the Act (page 115) states:

Quote:

The licensee:

(d)  must not operate, or permit operation of, the transmitter:

(i) in a way that would be likely to cause reasonable persons, justifiably
in all the circumstances, to be seriously alarmed or seriously affronted;
or;

(ii)  for the purpose of harassing a person. 

S113  (page 133) Contravention of conditions:

(1)  A person is guilty of an offence if:

(a)  an apparatus licence relates to the person; and
(b)  the person engages in conduct; and
(c)  the person's conduct contravenes a condition of the licence.

Penalty:  100 penalty units. (AUS$11,000).
 
Note this: 

Quote:

A defendant bears an evidential burden in relation to the matter 
in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Unquote.

This means that the defendant has to disprove his guilt. As 
in civil defamation actions - "guilty until proved innocent".

Quote:

(3)  In this section, "engage in conduct" means:

(a)  do an act; or
(b)  omit to perform an act.

End quote.
 
(a) To "do an act" would be for a user to make statements that would 
cause a reasonable person to be "seriously affronted or seriously 
alarmed" contrary to S108(2)d) - by for example making false and 
defamatory statements. 

(b) To "omit to perform an act" would be for a sysop to permit his BBS 
to be used to upload such defamatory messages to the ww packet network. 

Where a user has been asked to desist from such misconduct, and the sysop
is aware of that, and neither the user nor sysop desists, they're jointly
and severally liable - the writer [as author and "user" of the BBS] for
his "acts", the sysop [as the "permitter" and publisher, for his
"omissions"].

Connecting to packet via internet - ISP terms:

Even if no RF is used to upload messages, we must still observe the terms
of the licence as it is an amateur radio system which uses a mix of RF and
internet. 

More and more amateurs  use telnet to connect to their BBS. 

This brings added responsibilities beyond the terms of the licence. All
ISPs have "terms of acceptable use" policies to which we agree when we 
sign up.

EG: Westnet:

Quote:

2.4 The Customer agrees that it will not:

Utilise an account for any fraudulent or criminal activities, including,
but not limited to transmission of...illegal...or libellous material, 

Post to or transmit to or via the Website any content that interferes
with, interrupts, harasses, threatens, menaces, inhibits or offends any
other person; 

5.1: The customer undertakes not to use the service for any improper or
immoral purpose, nor cause any nuisance nor for any of the following
purposes:

5.1.1 For the transmission of any material which is may be or is 
intended to be...of a defamatory, offensive, abusive or menacing 
nature...

End quote.

Clear enough.

"Is" or is intended to be", means that whether or not the users intended 
to be defamtory, offensive or abusive, if he's done it, he's done it.

http://www.westnet.com.au/about/legal-information/services/general_01.aspx

The law isn't based on the fortitude of how much the complainant is
prepared to put up with, and sensible users and sysops who operate 
well within the terms of their licence, their ISP and the law should 
not allow a few disruptive individuals to rob them of their hobby. 

Which is: 

"To seek, receive and impart information and ideas of all kinds regardless
of frontiers". Packet is not a rumpus room for attention seekers to act
their shoe size - not their age.

Anyone who can't cope with this is in the wrong hobby.

Radiocommunications Act 1992 (PDF, 632kB):

http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/CF6D78E60
1775DB1CA2571AF0081B2FF/$file/RadiocommnsAct92.pdf

Or in other formats and for other legislative aspects 
in Australia, via the Federal Attorney General at:

http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/current/byt
itle/5655F30B0454B074CA2571AF0080D2D5?OpenDocument&mostrecent=1

I'm not interested in debating this. I'm not expressing opinions - I'm
explaining the law as it is - not as some may think it is or might like 
it to be.


Best wishes 
David, G4EBT @ GB7FCR

Cottingham, East Yorkshire.

Message timed: 18:52 on 2009-Sep-01
Message sent using WinPack-Telnet V6.70
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