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  • Blog, Internet - Written by on Monday, December 10, 2012 14:12 - 58 Comments

    iiNet pulls out of anti-piracy scheme

    blog Remember how a coalition of most of Australia’s major ISPs proposed a scheme about a year ago which would see Australians issued with warning and educational notices if they were caught pirating content online? The one which could have seen users’ details handed over to the copyright lobby with a subpoena? Well, it’s looking increasingly like the scheme is dead in the water. The Australian reports today (we recommend you click here for the full article):

    “A scheme to help Hollywood movie studios catch online copyright infringers is on the verge of collapse after iiNet, the nation’s third-largest telco, abandoned plans to trial the new system.”

    In our view, it wouldn’t be a bad thing if the scheme collapsed with the withdrawal of iiNet. As your writer wrote when the scheme was first announced, it would have opened the door for content owners to start taking hundreds of thousands of Australians to court for minor offences such as downloading a few TV episodes — you know, the kind of mass BitTorrent lawsuits which we’ve seen in the US. Yuck.

    Image credit: mtellin, Creative Commons

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    1. Posted 10/12/2012 at 2:17 pm | Permalink |

      Wa wa wa wa wa waaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa…

      Thanks for playing AFACT…

    2. Simon Reidy
      Posted 10/12/2012 at 2:23 pm | Permalink |

      Awesome. I love iiNet/Internode.

      I really didn’t fancy giant fines and a criminal record for watching HBO TV shows I love, and can’t obtain on time elsewhere (not without paying $60 a month for a heap of other channels I dont want with Foxtel anyway) so I’m rather happy to hear they have abandoned the anti-piracy scheme.

      • Posted 10/12/2012 at 7:18 pm | Permalink |

        Thankfully Simon there is NO criminal action you could be charged with under Australian Law, unless you were selling these works for commercial gain. Linking too, downloading, or even watching these shows has never been illegal in Australia only unlawful (once proven in court).

        Geordie Guy has a great little educational page explaining this common error in calling these things “illegal” that really stems from the USA and bogus reporting by the MSM http://www.geordieguy.com/illegal-movies-and-music-fact-sheet/

        • Simon
          Posted 10/12/2012 at 7:35 pm | Permalink |

          Thanks G Thompson. I was aware that our copyright/piracy laws differ from the US, but only in a vague sense, so that link was good clarification.

          I was wondering why I hadn’t been arrested yet ;-)

        • PeterA
          Posted 11/12/2012 at 7:36 am | Permalink |

          Except with torrents (and other p2p methods) you often upload (albeit often.incomplete) while you download.

          Even worse, you often upload to 10s or 100s of others.

          Uploading could be considered distribution, could be considered wide scale distribution.

          Distribution could easily fall into the actual illegal realm. I don’t think we have ever had a case that tested it in our courts yet.

          • PeterA
            Posted 11/12/2012 at 7:37 am | Permalink |

            YMMV IANAL etc.

        • NBNAccuracy
          Posted 11/12/2012 at 11:20 am | Permalink |

          I know downloading isn’t illegal. I thought however uploading was. Even without monetry gain as by sharing you are gaining access to other content of value. With P2P, unless you don’t allow uploads, then you are dispised as a leech by the P2P community, aren’t you liable to be prosecuted for the uploads?

          • Posted 11/12/2012 at 6:39 pm | Permalink |

            Still not illegal since under the Copyright Act 1968 sect ss132AB [ http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s132ab.html ] you would have to upload the allegedly infringing work for the purposes of (i) selling it; or (ii) letting it for hire; or (iii) obtaining a commercial advantage or profit.

            A commercial advantage means you need to actually do it for commercial advantage (advertising via promotion is one example) . Doing it out of an ethical or moral choice is not an element of the offense.

            Therefore uploading parts, whole, or otherwise is not by itself an illegal act. Though it could be unlawful if proven.

            • NBNAccuracy
              Posted 11/12/2012 at 10:53 pm | Permalink |

              I hadn’t seen it tested in court but I thought they were arguing that the uploader was profitting by increasing their sharing score and thus getting more downloads.

              • Posted 12/12/2012 at 3:34 am | Permalink |

                Yes that’s an argument, though quite a flimsy argument that smacks of trying to find anything anywhere to stick, though since it is still not for any sort of commercial advantage since a ‘sharing score’ is a very ambiguous and specific thing that does not give any monetary advantage over others. basically the word commercial is the major thorn in their sides.

                Also the IP owners (or there agents like MPAA/AFACT/RIAA et. al) really don’t want these things to be illegal since they would then have to be witnesses/victims (ie: sit down and shutup until called), have to hand over ALL investigative control to the Police (or govt authority) unless they want a whole pain of chain of evidence and authenticity problems that creates, they also would receive no compensatory damages if the defendant was found guilty (and Victims Comp is unavailable to them too). Then we cannot forget about the major difference between Criminal and Civil cases. The doctrine of reasonable doubt instead of balance of probabilities. And all this is before the local/lower court Magistrate (and they would rarely go to District level and most likely NEVER Supreme) consider things like de minimus, Sentencing with most likely at most a slap on the wrist and a $100 fine, with some extremely unlucky offenders maybe getting a bond but highly unlikely in any state that a custodial sentence would be given for normal breaches of the act – The political fallout would be too great.

                • TechinBris
                  Posted 08/01/2013 at 3:48 pm | Permalink |

                  Would that be a financial gain in doing so, if no money was exchanged in the first place? But if your not getting any monitory gain as the item has no value to anyone not willing to pay for it, then how could they say you have profited monetarily from something which has no monetary value in the first place in the environment from which it was gained from?
                  Is Hollywood now trying to outlaw Barter? Oh dear. They have really left the real Universe and crossed over to the Atomic Banana.

    3. Elijah B.
      Posted 10/12/2012 at 2:36 pm | Permalink |

      Rules, laws, codes of conduct, etc, that penalize ordinary punters (as opposed to crime syndicates which are the real pirates) should be legislated out of existance if rights-holders don’t make reasonable efforts to have the material available for sale. With this I’m referring to those shows that never become available in Australia, or take weeks, or years before they are released. The whole system appears to be set up to benefit some robber-barons in the industry at the expense of people who are not criminals in themselves, but are driven to such behaviour because of the sheer bloody-mindedness of the industry. The Law is supposed to be impartial and equitable, and copyright law is anything but.

      • TechinBris
        Posted 10/12/2012 at 4:11 pm | Permalink |

        Then change it. If you don’t like the laws that the current Pollies are dumping on you, change to voting for someone else. After all, we are the Society, our Politicians are supposed to represent us and not those Robber Barons you mentioned. Dare to be brave and vote for someone else who might have your interests at heart and not some Multinational Corporation, which the current Pollies entrenched in our Systems have been doing.
        Why is it people think they have to take what the Pollies dish them. Ditch them. Try someone or somthing else. If they don’t do right, ditch them and try till you do get someone who really represents you. A revolving door in the Parliaments of Australia will do wonders for us all.

    4. djos
      Posted 10/12/2012 at 3:11 pm | Permalink |

      Until the content mafia get a clue they’ll just keep up these anti consumer policies – a perfect example is quickflix, this service could be really good if the content mafia let QF have full access to all content that has ever been locally released in aus at a fair market price but they are too interested in trying to force drm infested bluray’s down consumers throats!

      Wake morons, it’s the 21st century and your business models are obsolete!

    5. belize
      Posted 10/12/2012 at 3:12 pm | Permalink |

      ” it would have opened the door for content owners to start taking hundreds of thousands of Australians to court for minor offences such as downloading a few TV episodes — you know, the kind of mass BitTorrent lawsuits which we’ve seen in the US. Yuck.”

      I don’t think that’s correct Renai.

      Those “mass lawsuits” occurred in the absence of a warning notice type scheme (noting that such a scheme is only just starting in the US now).

      What it does open the door for is the employment of other options for addressing p2p copyright infringement. Those options could include:

      i) “mass lawsuits” (an option, albeit very costly, which has always been available to rightsholders) and, of course,
      ii) in the absence of indsutry agreement (noting iiNet has just pulled out of the deal), the Government choosing to legislate a graduated response regime (as has occurred in the UK, France, NZ etc).

      • Posted 10/12/2012 at 3:31 pm | Permalink |

        The scheme would have formalised what is now a shaky legal instrument, so far untested in Australia, of content owners filing subpoenas with ISPs for infringing users’ details, so the content owners could sue them. This was actually in the works in Australia, as detailed here:

        http://delimiter.com.au/2011/10/01/us-style-mass-piracy-lawsuits-come-to-australia/

        We haven’t seen it yet, but this scheme would have indeed opened the door to it.

        • belize
          Posted 10/12/2012 at 3:42 pm | Permalink |

          will have to agree to disagree i think Renai.

          Suing p2p downloaders has been, and will always be, an option for rightsholders. I can’t see any evidence to suggest that seeking discovery orders to identify an ISP account associated with copyright infringing activity has ever been a “shaky” legal process ….. and I’ve been following this issue for a long time. It’s not been utilised because it is an expensive and inefficient way in which to address massive levels of low-scale non-commercial infringment.

          I’ve little doubt that unless some sort of compromise can be brokered on this issue (ideally some sort of voluntary agreement between rightsholders and ISPs) the Govt is going to step in and legislate.

          btw – iinet have always supported a process whereby it hands over customer details alleged to have infringed copyright so that others (and not iinet) can be seen to be taking action against infringers. See: http://delimiter.com.au/2011/10/17/iinet-supports-govts-streamlined-piracy-process/

          • Posted 10/12/2012 at 6:02 pm | Permalink |

            “I can’t see any evidence to suggest that seeking discovery orders to identify an ISP account associated with copyright infringing activity has ever been a “shaky” legal process”

            *cough*

            It hasn’t ever been used in Australia, to my knowledge ;) I’m sorry, but you’re just flat out wrong here.

            “iinet have always supported a process whereby it hands over customer details alleged to have infringed copyright so that others (and not iinet) can be seen to be taking action against infringers”

            No, they haven’t. They were part of an industry solution which would have encouraged it, but to my knowledge they have not handed over any users’ details as part of a discovery process around Internet piracy.

            • pfff
              Posted 10/12/2012 at 8:24 pm | Permalink |

              I think you’ve misunderstood what Belize is saying Renai.

              While the legal avenue of getting discovery of custoemr details based on alleged copyright infrining activity may not have been used (although I suspect it was used in the Kazaa and ComCen cases) it’s not a legally “shaky” process. It’s well established and has unquestionably always been available to rights holders.

              As for iiNet handing over customer details, it’s always been their external facing policy that p2p is bad and that they’ll happily hand over customer details to certain parties. Here’s there plan, which involves handing over customer details to a Govt body, who can then decide what to do with them: http://www.scribd.com/doc/50771734/Encouraging-Legitimate-Use-of-OnLine-Content

              • Posted 10/12/2012 at 8:32 pm | Permalink |

                “It’s well established and has unquestionably always been available to rights holders.”

                That’s not what the rights holders I have spoken to have said. They made the point that it had never been tested in this way in Australia and it was not clear yet whether the courts would wear it.

                I repeat … it has not yet been tested yet in court. How can it possibly be “well-established”?

          • Posted 10/12/2012 at 7:44 pm | Permalink |

            “I can’t see any evidence to suggest that seeking discovery orders to identify an ISP account associated with copyright infringing activity has ever been a “shaky” legal process ….. and I’ve been following this issue for a long time. It’s not been utilised because it is an expensive and inefficient way in which to address massive levels of low-scale non-commercial infringment.”

            Firstly it’s not shaky on legal grounds since it is quite a normal procedure to request via subpoena either for criminal or civil cases (though not as much from civil) what IP address is associated with what access to a device/resource at a specific instance in time.

            Though that is where the non-shaky part finishes and the very unauthentic and unreliable evidential part starts in that an IP address will ONLY nominate a device and does not in any way shape nor form on it’s own show what individual was using it, not by a reasonable doubt nor even on balance does it show this and that is the whole problem with these actions.

            Though what Renai is talking about isn’t the individual case finding out for one computer and ONE case but the joinder of huge amounts of Does for the alleged infringement of one work at separate times and on separate IP’s with the sole intention to reduce the expense of individually obtaining subpos and instead getting a wide order for ALL in the alleged same class. This would then be used to find out the account holder names of these IP address’s and threaten them, wrongfully, with further legal action if they don’t pay a nominal amount to “make it all go away”. Some have called this extortion, some have called it Barratry, I call it as I know it WRONG!

            This doesn’t mean that a rights holder who has ample evidence, not just an IP address, shouldn’t exert all there rights under law, but these so called schemes are not the correct way to do it.

            What’s the right way to do it? No idea, though I suspect based on a lot of experience that the horse has bolted, the social mores have come to the point where the majority believe that the rightsholder (or the recording/publishing industry themselves.. notice I don’t say music or movie industry.. since they are different AND bigger than the recording/publishing industry) are mostly at fault here and do not have an ethical problem with a lot of the non-commercial infringement that is taking place. Education won’t work, criminalisation won’t work (it’s unenforceable). Maybe consideration, communication, and compromise might be the way to go.

            • Posted 10/12/2012 at 8:33 pm | Permalink |

              “what Renai is talking about isn’t the individual case finding out for one computer and ONE case but the joinder of huge amounts of Does for the alleged infringement of one work at separate times and on separate IP’s with the sole intention to reduce the expense of individually obtaining subpos and instead getting a wide order for ALL in the alleged same class”

              Precisely.

              It hasn’t been done in Australia yet with relation to Internet piracy, but even if it has been done in other fields, we certainly have not yet seen a case with multiple targets from the same ISP etc, all on the same discovery documentation. We just haven’t seen that yet and we don’t know how it would play out in court, even if an ISP were to be cooperative — which almost all of them have indicated that they are ambivalent about being.

            • midspace
              Posted 11/12/2012 at 11:31 am | Permalink |

              “the very unauthentic and unreliable evidential part starts in that an IP address will ONLY nominate a device and does not in any way shape nor form on it’s own show what individual was using it”

              It will provide you an intermediate point in a network, such as a router, not necessarily the device that downloaded the content.
              This is the problem with IPv4 and NAT. Once IPv6 gets some traction, then we’ll start seeing which actual devices are doing the downloads, and become much easier to confirm if the device was part of the owner’s network, or a temporary visitor.

              • ferretzor
                Posted 11/12/2012 at 12:16 pm | Permalink |

                Yes and no. Use of “temporary” or “privacy” type IPv6 addresses will get you pretty much nowhere still; the addresses generated from MAC will of course be a different matter.

              • Posted 11/12/2012 at 6:46 pm | Permalink |

                And that’s why I stated “device” not computer ;)

                And even ip6 is not fallible or evidentially reliable (though it has more sway than other situations) as forretzor replied a MAC address is a lot better but it still can be unreliable in some circumstances.

                Though this still only specifies the device, and just because the device is owned by sometime in no way is that proof of infringement by that ‘owner’. Though it does give enough reasonable suspicion to then start further investigations which would involve a subpoena for the actual device(s) to analyse via a unbiased third party expert.

        • Bob.H
          Posted 10/12/2012 at 4:03 pm | Permalink |

          If my memory serves me correctly iiNet have been threatening to pull out of these discussions which I think were facilitated by a Government Department for awhile.. Didn’t they previously suggest that these talks were a waste of time?

          As to the Movie Rights Group. They were the people who were going to try and start the USA trick of sending a letter advising that you have been detected infringing copyright but we are happy to come to an out of court settlement including a confidential agreement and cash. Were this not the company who when investigated were found to have controllers with less than pristine reputations? Haven’t they disappeared into oblivion?

          The real problem is hard to positively identify but it is possibly the same problem we see in New Zealand the people who want his scheme introduced are not prepared to pay for the cost of the notices.

          The trouble in my opinion is that the Copyright Holders wouldn’t know goodwill if it bit them on their collective aaaaaaah forget it.

    6. Tinman_au
      Posted 10/12/2012 at 3:13 pm | Permalink |

      Be interesting to know if they gave a particular reason, did they do a press release for it?

      • Posted 10/12/2012 at 3:30 pm | Permalink |

        PRESS RELEASE:

        “We dropped out of the scheme because it is dumb.”

        Sometimes the simplest statement is the correct one.

        :o)

      • Posted 10/12/2012 at 3:31 pm | Permalink |

        No media release. Good journalism by the Australian for asking.

        • Simon Reidy
          Posted 10/12/2012 at 3:35 pm | Permalink |

          “Good journalism by the Australian”

          That’s a first! (sorry, someone had to say it :) )

          • Nobby6
            Posted 10/12/2012 at 4:16 pm | Permalink |

            They want me to pay to read the fully story? LOL they know what they can do with their digital pass ;)
            I’ll wait till the trusted sources publish any media statements – WTF would I pay THEM for a public statement (which will come) from iinet.

        • TechinBris
          Posted 10/12/2012 at 4:14 pm | Permalink |

          Is that actually possible?

        • Stephen H
          Posted 10/12/2012 at 4:14 pm | Permalink |

          Wait, what? You’ve mentioned the Murdochian and journalism in the same sentence – I am confused.

    7. Stephen H
      Posted 10/12/2012 at 4:13 pm | Permalink |

      One of the problems with any such scheme is that there can be quite a difference between the owner of the pipes and the user. I would be most annoyed if I were punished for all the copyrighted porn that my wife downloads. And that ignores those people who do not secure their WiFi.

      I wonder what would happen if people started downloading all their copyrighted material at MacDonald’s and Starbucks, using their free WiFi?

      • TechinBris
        Posted 10/12/2012 at 4:17 pm | Permalink |

        I would love to watch Hollywood try to sue Macca’s or Starbucks. LOL
        Let the Corporate money bleeding commence! I cannot think of more deserving Corporations to go to war against each other. LOL

      • Nobby6
        Posted 10/12/2012 at 4:19 pm | Permalink |

        Maccas limits you to 50mb a day, so although possible, it sure will take a long time to get your movie…

        Then again.. it will take a hell of a lot longer for hollywood to release that movie out here, so ummm yeah

        • TechinBris
          Posted 10/12/2012 at 4:39 pm | Permalink |

          Is that across all of Macca’s outlets, or per outlet?

          • Nobby6
            Posted 10/12/2012 at 5:12 pm | Permalink |

            No idea, I only go to one (local) store
            I’m sure someone out there has tried it though

            • PeterA
              Posted 11/12/2012 at 7:44 am | Permalink |

              Change your MAC address?

              • GongGav
                Posted 11/12/2012 at 9:29 am | Permalink |

                Should be an option at Macca’s…

      • ferretzor
        Posted 11/12/2012 at 12:19 pm | Permalink |

        Having used Maccas etc networks before, I think I can say with confidence that rights holders would be overjoyed if everyone downloaded from there. The torrent would become a trickle, if that.

    8. Echelen
      Posted 10/12/2012 at 5:33 pm | Permalink |

      Good on iinet. Any plan that will let rights holders subpoena details is a terrible, terrible thing. The only thing it would result in is mass fishing lawsuits with reels of IP addresses like happens in the US, Europe, etc, often with very little evidence or poor collection methods, and they’d succeed if our courts have as poor a technological knowledge as overseas.

    9. socrates
      Posted 10/12/2012 at 6:20 pm | Permalink |

      So The Australian thinks it is terrible, just terrible, that iiNet has given the one finger salute to ‘the Hollywood movie studios.’

      Could this reaction possibly have anything to do with the fact that The Australian is published by News Ltd, which also owns 50 per cent of Foxtel and a few other things?

      • Posted 10/12/2012 at 7:12 pm | Permalink |

        nah….

        well…

        ummmmmm

        *I refuse to comment on the grounds that News Limited probably knows where I live and could bug my phones*

      • Stephen H
        Posted 10/12/2012 at 7:36 pm | Permalink |

        You mean like 20th Century Fox, and the Fox Network in the US (one good product – The Simpsons)?

    10. NBNAccuracy
      Posted 11/12/2012 at 11:24 am | Permalink |

      I could be wrong here, but wasn’t it iiNet who suggested this copyright trial in the first place? Or was that just words during the court case to make it seem like they weren’t condoning piracy by saying they wanted to help?

      • Steve Dalby (iiNet)
        Posted 11/12/2012 at 7:13 pm | Permalink |

        >> I could be wrong here, but wasn’t it iiNet who suggested this copyright trial in the first place?

        No.

        We supported a proposal to the AG in 2008 that we would not object to expedited discovery orders, in 2010 we floated a scheme run by an independent body (not ISPs) and in 2011, a warning scheme as part of Comms Alliance (no sanctions) – all were deemed to be “Utterly unacceptable” by the other side.

        Notably, there has not been any scheme proposed by rights holders, just a demand that ISPs harass and disconnect customers.

        The scheme in which we have just declined to participate, was a an idea tabled by a party (who we can’t identify owing to the Chatham House Rule).

        The conversation with the rights holders has continued as if the High Court decision had not been made. Our CEO made a public statement on the day the HC decision was handed down, indicating our desire to walk away from the discussions.

        When it became obvious to us that the HC decision was being ignored in favour of rights holder demands, we decided to make it clear that our participation could not be relied upon.

        As we have made clear here previously, our participation in the conversation did not imply that we supported the proposal. I guess there came a time where we had to make a call and so we decided to inform the parties that we would not participate in a notice-and-notice scheme.

        S

        • Daniel
          Posted 11/12/2012 at 7:48 pm | Permalink |

          So in a nutshell Steve, Gane is pretending the HC decision never occured, nothing has changed at all in regards to them modifying their proposal?

          • Steve Dalby (iiNet)
            Posted 11/12/2012 at 8:05 pm | Permalink |

            Got it in one, Daniel.

            I should, however, take exception at your use of the word ‘proposal’. AFACT et al, has never got as sophisticated as that – there is no rights-holder ‘proposal’. They’ve not put anything down on paper, other than press releases.

            The quote in ‘Smarthouse’ (http://smarthouse.com.au/Content_And_Downloads/IPTV/C6V7M4E5?page=1 ) today is about as well developed as it has ever got from that side (methinks I smell a rat) :

            “Something has to be done. You can’t have a situation where copyright holders can’t enjoy the benefits of their content and rights.”

            That’s it – “Something has to be done” un-named man shouts. .

            In that poorly constructed and unresearched article, it seems that it is now iiNet’s fault that new release content is not available in Australia.

            I suppose we will have to live with that, but I hope we don’t get blamed for the late/non-release of content in all the other countries on the planet as well !!

            Apologies if I’ve breached a protocol by posting that link from another site, Renai.

            • Bob.H
              Posted 12/12/2012 at 7:44 am | Permalink |

              Yes the Copyright holders Cartel will probably blame iiNet for anything they can think of because they refused to be bullied and put their customers rights ahead of the Cartel.

              The other side of the coin is that there is an upgraded telecommunications being rolled out called the NBN. Like me there will be a lot of people looking at who they want to provide there telecommunication needs for the future sometime in the next few years. iiNet certainly hasn’t hurt its self by this withdrawal and if anything has probably lifted its position toward the top of the preferred RSP list if not yet to the top.

        • NBNAccuracy
          Posted 12/12/2012 at 10:34 am | Permalink |

          I am not surprised it was uterly unacceptable. Only being able to issue 100 a month and then having to catch the same person, I think it was 3 times in a year, was a pretty cynical attempt at doing something. There would be only an minutely small chance of catching the same person 3 times in a year given your customer base size and the number of people using p2p to obtain copyrighted material.

          • Steve Dalby (iiNet)
            Posted 12/12/2012 at 3:28 pm | Permalink |

            >>> I am not surprised it was uterly unacceptable. Only being able to …

            So what they have now (nothing) is better ?

    11. Troden
      Posted 11/12/2012 at 2:44 pm | Permalink |

      I love my iiSP :)

    12. Posted 11/12/2012 at 7:12 pm | Permalink |

      Cannot believe that this thread has become so epic.




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      Microsoft has been on a bit of a tear recently in Australia with its cloud-based Office 365 platform, signing up major customers such as the Queensland Government, Qantas, V8 Supercars and rental chain Mr Rental. And it’s not hard to see why, with the platform’s hybrid cloud/traditional deployment model giving customers substantial options. However, as iTNews reported last week, it hasn’t been all plain sailing for Redmond in this arena.

    • Qld Govt inks $26.5m deal for Office 365 walker

      The Queensland State Government yesterday announced it had signed a $26.5 million deal with Microsoft which will gain the state access to Microsoft’s Office 365 software and services platform. However, with the deal not covering operating system licences and not being mandatory for departments and agencies, it remains unclear what its impact will be.

    • Hospital IT booking system ‘putting lives at risk’ doctor

      A new IT booking platform at the Austin Hospital and Olivia Newton-John Cancer and Wellness Centre in Melbourne is reportedly placing the welfare of patients with serious conditions at risk.

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