The Brief Edition 1 2020

Macquarie University Law Society magazine Edition 1, 2020 (Volume 26)

Uncharted

Territory Ed.1 2020

thebrief.muls.org | 1

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Contents

Edition 1, 2020 (Volume 26)

Features

12 15 18

Embracing Sustainable Litigation Jack Gilroy Where Autonomous Vehicles and the Law Collide Abinaja Yogarajah

21 23

Who’s the Owner? Artificial Intelligence and the Law of Copyright Jessica Zhang A National Disaster Insurance System Nick Haughain

Climate Change: A Burning Issue for Australia? Shrishti Shah

Regulars

6 8 9 10

What’s New in the Law? Rachel Hay Under the Radar: Adjusting for Family Violence Carlie Moses Social Justice Corner: The Disturbing Reality of Child Marriage in Australia Seren Ozdemir Devil’s Advocate: Australian Whistleblower Laws Reformed Olivia Tabbernal & Yoonjeong Choi

27 30 31 34

A Brief Conversation: Speaking with Professor Niloufer Selvadurai Nerissa Puth Stuff Law Students Like: A How to Guide to Becoming a Law Student Isabel Lowe Postcard from Abroad: Seoul, Korea Miki Prochazka A Brief Review: Years and Years Celine Nalbandian

Editor’s Welcome Dear reader, Welcome back to The Brief for 2020. We are grateful for the support and contributions that has enabled us to continue to provide a platform for the diversity of ideas of Macquarie University law students.

The theme of the issue, ‘Uncharted Territory’, is inspired by the new decade ahead for the contemporary legal world in which presents new and unfamiliar challenges. It explores issues intertwined with questions of uncertainty and the need to re-think engagements and responses through thoughtful interrogation.

An unprecedented bushfire season that devastates the nation, climate change, self-driving autonomous vehicles and artificial intelligence are but a few examples of how the legal world is being tested and how regulation and governance is being rethought.

Climate change as a modern challenge demands new approaches to mitigate higher temperatures and confront increasing volatile weather patterns. Climate change litigation is breaking new grounds as the Dutch Supreme Court upheld the state obligation to protect its citizens in the face of climate change risks, drawing on climate science, international targets and international law (p.18). In this issue, our writers also

suggest that embracing sustainable litigation provides an unprecedented opportunity for the legal industry, the ‘champions of ‘Ctrl+P’’ (p.12), and further highlights the need for a national disaster insurance system in Australia (p.23).

Our talented student contributors canvas the issue of artificial intelligence and challenge traditional notions of ‘ownership’ and ‘human intellectual effort’ in the copyright regime (p.21). One unfamiliar challenge that must be navigated today is the ethical and regulatory pitfalls of autonomous vehicles in domestic and international legislation (p.15). For this special edition, we have been fortunate to speak to Professor Niloufer Selvadurai (p.27). Thank you for your incredible insights on the monitorisation of data, stakeholder driven momentum in the technological industry and necessary approaches towards governing artificial intelligence.

We hope you enjoy the first edition of The Brief, in which the breadth of original thinking and critical analysis from law students at Macquarie University is well on show.

Nerissa Puth Editor-In-Chief

President’s Welcome On behalf of MULS, it is my absolute pleasure to welcome you to the first edition of The Brief.

The last decade saw an upheaval in the social, political, legal, global and moral sphere and as we enter 2020, we do so with both caution and excitement. This first edition of The Brief, ‘Uncharted Territory’ perfectly encapsulates the start of our new decade. With environmental catastrophes, a pandemic and political turmoil spreading across the globe, I am sure that I am not the only one wondering what’s next in the decade ahead.

We have some very interesting reads, some of which include discussions on artificial intelligence and copyright, a national natural disaster scheme in light of the bushfires, as well as autonomous vehicles. Keep an eye out for an especially fascinating interview with Professor Niloufer Selvadurai that explores AI governance.

4 | The Brief

Over the summer, the 2020 Executive have been working hard to bring you some exciting new initiatives.

Whether or not you want to compete in competitions, network with professionals, dance the night away or listen to the new MULS Podcast whilst enjoying a coffee (with a 10% discount from Cult Eatery for all MULS Members!), we have something for everyone.

On behalf of the MULS Executive, we hope you enjoy this edition of The Brief and consider stepping out of your comfort zone into unchartered territory. You never know the opportunities that will arise, the things you will learn and the people you meet along the way.

Daniel Lim President, Macquarie University Law Society

Ed.1 2020

2020

MULS Semester 1 Events COMPETITIONS Professional Skills Workshop 26 February

Edition 1, February 2020 (Volumn 26)

Mooting Workshop #1 4 March

EDITOR-IN-CHIEF Nerissa Puth

Mooting Workshop #2 18 March

thebrief.muls.org

DIRECTOR OF PUBLICATIONS Devlin Greatbatch Murphy DESIGNER Nathan Li

MULS v SULS Client Interview Competition Week 8

WRITERS (IN ALPHABETICAL ORDER)

Environmental Moot Grand Final Week 9

Abinaja Yogarajah, Carlie Moses, Celine Nalbandian, Isabel Lowe, Jack Gilroy, Jessica Zhang, Miki Prochazka, Nick Haughain, Olivia Tabbernal,

SOCIAL JUSTICE

Rachel Hay, Seren Ozdemir, Shrishti Shah and

Speaker Night #1: Climate Change, Bushfire & Law 1 April

Yoonjeong Choi.

SUB-EDITORS Benjamin Turnell, Juwariya Malik, Katerina Poulos, Nicole Moreno, Radia Aimen, Rimsha Acharya, Ruby Ford, Sophia Davies and Zoe Gleeson.

EDITORIAL REVIEW Devlin Greatbatch Murphy, Daniel Lim IMAGES Shuttershock unless otherwise stated.

The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney Australia.

Visit our website at thebrief.muls.org.

DISCLAIMER All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

The Brief acknowledges and pays respect to the Wattamattagal people of the Darug nation, the traditional custodians of the land where the campus of Macquarie University is located.

Practical skills Workshop: How to Make Tangible Change with your Law Degree 6 May Social Justice Careers & Volunteering Evening – Panel & Networking 19 May EDUCATION Law School Welcome (O-Week Workshop) 19 February First Year Morning Tea 25 February AGLC4 Workshop #1 11 March AGLC4 Workshop #2 19 March 2020 EVENTS Law Camp 27-29 March Gala Day 17 May Start of Semester Drinks Week 7 Law Cruise: TBC

Ed.1 2020

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What’s New

in the Law? Rachel Hay

Australia’s Religious Discrimination Bill

ACCC Proceedings Against Google

On 10 December 2019, Prime Minister Scott Morrison and Attorney-General Christian Porter unveiled the revised second draft of the religious discrimination bill. If passed, the bill will have various wide-ranging effects upon the provision of public services, particularly within healthcare, education, aged care facilities, accommodation providers and also within employment.

To name a few of the proposed provisions, health practitioners could ‘conscientiously object to provide a health service’ such as abortion or the morning-after pill on religious grounds, in spite of any professional conduct rules. Religious camps and conferences may take faith into account when selecting prospective customers. A school may require that their staff and students observe particular religious practices. Religious bodies, such as hospitals, aged care providers or accommodation providers, may ‘legitimately discriminate’ against staff during hiring processes and enforce a staff code of conduct to preserve their ‘religious ethos’. Statements of religious belief made in good faith which may offend people will not constitute discrimination under any state, territory or federal antidiscrimination law provided that they do not harass, threaten, seriously intimidate or vilify a person or group.

The draft bill has not been met without significant controversy. While some religious bodies have expressed support for the proposed legislation, Law Council of Australia President, Arthur Moses noted that the bill was a ‘deeply flawed piece of legislation’ and would unjustifiably allow freedom of religious expression to encroach on other equally important human rights, such as protection against discrimination based on gender, disability, race and sexual orientation. Further, Moses noted that the bill narrowed existing state and federal discrimination protections, such as section 18C of the Racial Discrimination Act which prohibits speech that ‘offends, insults or humiliates people’ based on race.

The Australian Competition and Consumer Commission (‘ACCC’) has commenced proceedings in the Federal Court against Google LLC and Google Australia Pty Ltd in October 2019 concerning their data collection and use practices.

The ACCC alleges that Google made false and misleading representations to consumers concerning the way in which personal location data was collected. There are two Google account settings: ‘Location History’ and ‘Web and App Activity’ which collect location data when enabled.

From January 2017 until late 2018, the ACCC alleges that Google breached Australian Consumer Law through on-screen representations which suggested that ‘Location History’ was the only relevant setting which might affect location data collection and use. Google failed to properly disclose that ‘Web and App Activity’ had to be disabled. ACCC Chairman Rod Sims, stated that ‘Google misled consumers by staying silent about the fact that another setting also had to be switched off’.

Further, the ACCC alleges that Google failed to disclose how location data was used. On-screen representations provided that location data would be used for the consumer’s use of Google services.

Google failed to disclose that it may use the data for its own purposes including to personalise advertisements, infer demographic information, measure the performance of advertisements, promote advertising services to third parties or to produce anonymised statistics which were to be shared with advertisers.

The ACCC is seeking orders requiring the publication of a corrective notice and the introduction of a compliance program by Google.

6 | The Brief

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BE v Suncorp Group Ltd [2018] AusHRC 121: Criminal Record Checks by Your Employer Recent changes have been made to federal law which governs how an employer may assess job applicants who have a criminal record.

The Australian Human Rights Commission Regulations 2019 have clarified that it is lawful for an employer to discriminate according to a ‘relevant criminal record’.

As such, if an employer wanted to reject an applicant based on their criminal record, it was previously necessary to demonstrate that a criminal record would prevent a job applicant from performing ‘inherent requirements’ of the role. The question for employers is now merely whether the criminal record is relevant to a role.

Trademark Application: ‘Gumby Gumby’ In April 2017, a trademark application upon the phrase ‘Gumby Gumby’ was made by two business partners located in central Queensland.

Gumby Gumby means ‘woman woman medicine’ in the Indigenous Ghungalu language and refers to a native shrub used by Indigenous people in traditional bush medicine and herbal remedies.

IP Australia decided upon the trademark application in December 2019 and held that it was not accepted. However, the two business partners have successfully trademarked their logo incorporating the phrase and subsequently requested that several Indigenous businesses cease using the phrase. The pair do not claim to be Indigenous and alleged on their website that they invented the phrase in 1999.

Nonetheless, the application sparked widespread discussion as to the intersection of intellectual property rights and indigenous culture and knowledge. Critics have noted the cultural insensitivity of commercialising indigenous phrases without obtaining prior permission from indigenous communities. IP Australia released a report last year proposing an Indigenous Advisory Panel for IP applications involving Indigenous Knowledge, following roughly six months of consultation with Indigenous communities and institutions.

Ed.1 2020

The change was introduced as a result of the decision in BE v Suncorp Group Ltd [2018] AusHRC 121. BE was provided an offer of employment by Suncorp as a ‘Work@Home Consultant’ within Suncorp’s insurance sector. This offer was conditional upon the completion of background and criminal checks. BE was found to have child pornography offences and Suncorp rescinded the offer of employment. Suncorp alleged that BE could not fulfil the inherent requirements of the role, namely being adherent to the Suncorp Values of respect, honesty and trust. The Australian Human Rights Commission found that Suncorp had discriminated against BE on the basis of his criminal record. Suncorp had not demonstrated that the conviction meant the applicant was unable to perform the ‘inherent requirements’ of the job. The new test of relevancy has lowered this threshold.

Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) In early December last year, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) was introduced for the second time proposing significant changes to expand corporate criminal liability. New provisions have been introduced to broaden the offence of bribing a foreign public official, the absolute liability offence of 'failure to prevent bribery of foreign public official' has been introduced, amendments have been made to the definition of dishonesty and the Deferred Prosecution Agreement scheme has been introduced which would allow for the negotiation of outcomes and penalties.

The Bill was first introduced in 2017, however lapsed just prior to the 2019 election. The 2019 Bill is similar, however has been strengthened following widespread political commentary surrounding the Royal Commission into Misconduct in Banking, Superannuation, and Financial Services Industry.

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Under the Radar

Adjusting for

Family Violence Carlie Moses

F

amily violence has become a prominent issue in today’s society, with an average of one woman per week being murdered by their current or former partner. Further, 2.2 million Australians have experienced physical and/or sexual violence from a partner and 3.6 million Australians have experienced emotional abuse from their partners. Evidently, this is an alarming rate that needs to be addressed in some form within family law.

The Family Law Act 1975 (Cth) (‘the Act’) is the main piece of legislation governing the family unit. Currently, there is no provision in the Act that explicitly considers family violence as a factor in property settlement matters. As a general principle, family violence is recognised in family law only when adjusting the settlement for ‘health or diminished earning capacity.’ The leading authority for this principle is Kennon v Kennon (1997) 22 Fam LR 1 (‘Kennon v Kennon’) where it was held that an adjustment should be made for family violence where it had a significant adverse impact on the partner’s ability to contribute to the property pool, or made the contribution more difficult.

Although there has been a social recognition of the effects of family violence on an individual’s ability to contribute to the property pool, there are a few concerns with the lack of recognition in the Act. Firstly, such an adjustment is rarely made, and even so,

8 | The Brief

the adjustment often has a minimal impact, with the average adjustment being 7.3% of the settlement. Secondly, the adjustment is heavily criticised due to its complexity and uncertainty which may also be indicative of why it is rarely applied in family violence matters. Consequently, a lack of certainty diminishes the confidence of victims of family violence in the justice system, especially when the perpetrating partner is unwilling to negotiate. Understandably, it is difficult to endure a court proceeding without the confidence of being adequately compensated for the violence where it has significantly impacted their ability to contribute to the property pool. This lack of confidence has forced many women to leave an abusive relationship without any assets or property.

It is clear that something must be changed to provide justice to victims of family violence.

The Australian Law Reform Commission proposed that the adjustment should be made in the form of compensation, rather than a quantum of damages as a proportion of the asset pool as this could lead to arbitrary application. Effectively, this will avoid the complex application of the Kennon v Kennon ruling and provide greater clarity and statutory protection in this area of law. Taking a strong stance against family violence would be a step towards restoring trust in the legal system for victims of family violence.

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Social Justice Corner

The Disturbing Reality of

Child Marriage in Australia

I

n 2011, the Federal Magistrates Court placed a sixteen-year-old girl on the Airport Watch List to prevent her parents from forcibly marrying her off in Lebanon. Despite the case’s successful outcome, the Court in Madley v Madley [2011] uncovered a dark and disturbing presence of modern-day human trafficking and slavery that had never been dealt with before. Nine years later, child marriage continues to be a secretive, and developing, crisis in Australian society.

The offence of forced child marriage was introduced in 2013 through amendments made to the Criminal Code Act 1995 (Cth). The provisions include anyone under the age of eighteen as victims of forced marriage, except where the Court has permitted those over the age of sixteen, with parental approval, to marry. Under s 270.7B, child marriage is considered an aggravated offence that is punishable up to nine years in prison.

Victims can also seek a protection order under the Family Law Act 1975 (Cth) against anyone involved.

Despite these amendments, there have been no successful prosecutions since their introduction. This is in contrast to the increasing reports made each year to the Australian Federal Police, with last year resulting in 91 reported cases concerning child marriage. The real figure is suggested to be significantly greater, which highlights where the law fails to both prevent and protect victims of underage marriage.

Existing frameworks fail to address the circumstances of the victims and their needs. Whilst national frameworks offer support and assistance to victims, including the National Framework for Protecting Australia’s Children, victims will often fail to report those involved. According to the Research Report on the Forced Marriage of Children in Australia, the persons involved are usually victims’ parents and family members.

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Saeren Ozdemir

Reasons for marriage may stem from cultural, social or economic factors, such as pressure to uphold tradition, or to sponsor their spouses’ immigration.

These children usually suffer extreme pressure and manipulation from their families. Types of abuse experienced by victims involve psychological, physical and emotional exploitation.

This mistreatment forces victims to accept the marriage and to not seek assistance. The victim often feels powerless against the impending marriage, especially where other members of their family or community are involved, and where their safety or wellbeing is threatened by refusing the marriage.

Victims are often in an extremely vulnerable position and dependent upon their parents. Thus, victims are usually unwilling to report their parents and seek protection orders.

Even where the child would seek protection, many marriages are understaken overseas without the victim’s prior knowledge. The ‘trip’ is usually disguised as a family holiday, and victims are pressured by their international isolation to accept the marriage. This is considered a form of human trafficking, and the offence is punishable up to twenty-five years in prison under the Criminal Code Act 1995 (Cth). However, limited resources available to the child mean that many instances of international marriage involving Australian children are never prosecuted.

Australia remains plagued by the exploitive practice of child marriage. Whilst the laws have been significantly improved to protect victims, many still remain vulnerable to underage marriage and experience abuse. To reduce the rising statistics of child marriage in Australia, the national framework needs to be redeveloped to address the needs and circumstances of victims. thebrief.muls.org | 9

Devil’s Advocate

Australian Whistleblower Laws Reformed:

Was it Necessary?

For

I

! Olivia Tabbernal

t was because of the whistleblowers that led to the ‘Banking Royal Commission’ uncovering ample amounts of misconduct in the financial services industry. It was because of Julian Assange that the world became privy to restricted war and classified corruption documents. It was because of Richard Boyle revealing unfair debt collection tactics that lead to significant changes for businesses facing tax disputes. It was because of whistleblowers that the public became and become continuously aware of misconduct and corrupt activity that directly affect their every-day life.

There is large controversy around whistleblowers.

Despite the increasing importance of whistleblowing, there remains a live debate as to whether whistleblowers should be protected or be ostracised for truth telling.

Due to societal pressure, it has been made clear that greater protections for whistleblowers are needed.

As a result, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 has made some key reforms to the Corporations Act 2001 (Cth).

Against

T

" Yoonjeong Choi

he whistleblower policy is a recent yet intricate matter of the law that Australia currently faces.

It was in 2013 that the need for whistleblower protection was first legally recognised on a federal level, and since then, has been subject to much debate regarding its reform. In light of the new amendments to the policy, there is an apparent tension between the public and private sector. Particularly, whether there is enough and equal amount of protection for whistleblowers of both sectors.

The new laws surrounding the whistleblower policy seems to promote notions of unequal treatment before the law. The amendment requires public, large proprietary companies and registrable superannuation entities to implement new whistleblower policies by January 1, 2020. However, this was demanded only of the private sector, and not the public sector.

10 | The Brief

When we reflect upon prominent media cases, such as the Australian Federal Police’s raids on the Australian Broadcasting Corporation (‘ABC’) and the home of News Corp journalist, Annika Smethurst, it is obvious that the whistleblower policy should address those in governance.

Public sector whistleblowers risk imprisonment, and journalists receiving information from whistleblowers can be accused of receiving stolen goods.

Further, Glencore International AG v Commissioner of Taxation highlighted that when it is a public sector entity involved with stolen documents, the validity of using such documents goes unquestioned. There is great irony here which demonstrates an imbalance in the way that our legal system operates.

Karen Payne, the current Inspector-General of Taxation, has also called for greater protections for whistleblowers from the Tax Office. When individuals from the public institution are able to recognise that there is a flaw in the reform, it should be expected that the government would Ed.1 2020

It is crucial that a whistleblower is classified as an ‘eligible whistleblower’, otherwise the person will not receive protection under the law. Therefore, a major amendment was made to allow more people to qualify as an ‘eligible whistleblower’, leading to greater protection for whistleblowers under the Corporations Act (Cth).

The amendments also aim to foster accountability by penalising employers if they fail to fulfil a duty of care to the whistleblowing employee. Richard Boyle is currently facing imprisonment for disclosing information about debt collection practices that he learnt during his employment with the Australian Taxation Office (‘ATO’). He has been victimised for disclosing his concerns publicly and did not receive any protection from his employer. As of 1 January 2020, all public and large proprietary companies were required to update whistleblower policies in order to stay compliant with the new legislation. This includes providing greater protections for whistleblowers against detriment through victimisation. Consequently, companies are to be charged with a criminal offence if their whistleblower policies are not compliant.

Therefore, if the case of Richard Boyle occurred after the reforms took place, My Boyle’s employer would have been struck with severe penalties for breaching the new whistleblower protections.

To allow for increased transparency, people are now able to report misconduct anonymously.

Therefore, under the necessary amendments to the Corporations Act (Cth), civil penalties will also be

issued to companies who breach the anonymity of a whistleblower. Additionally, companies will be liable to pay compensation if the company, or their employees, engage in any detrimental conduct toward the whistleblower. Such hefty punishments introduced by the reforms to the Corporations Act (Cth) demonstrate the serosity of the need to provide increased protection for whistleblowers. This is a major step forward in allowing people to comfortably and safely tell the truth without suffering life-threatening consequences.

Further, the range of conduct capable of being reported has also been expanded. The person who disclosed information needs to reasonably suspect the information relates to ‘misconduct or an improper state of affairs or circumstances’. Such broad terminology allows for a wider scope of disclosable matters to be reported, providing greater protection for whistleblowers than ever before. For example, if the whistleblower believes no action is undertaken to address the relevant matter, in the best interests of the community, emergency disclosures can be made to parliament and to journalists.

With the amendments to the Corporations Act (Cth) allowing for a broader protected disclosure regime and encouraging ethical whistleblowing by increasing protections for whistleblowers, the society will be benefited. Evidently, these amendments are necessary in order to allow people to shine a light on wrongdoings within industries, ultimately allowing for a greater culture of integrity in the future of the corporate world.

acknowledge and act upon it. However, the government’s response to the whistleblower protection inquiry had been to reject 19 of the 35 recommendations for reform, some of which addressed the whistleblowers in the public sector.

An important figure behind the whistleblower policy inquiry, Jeff Morris, called for better reforms to be put in place. Morris went through proper channels to become a whistleblower in 2008 but was met with an undesirable outcome. With current reforms, Morris expressed that the government can ‘prosecute public sector whistleblowers as never before, threatening them with up to 160 years of imprisonment’.

Whistleblowers, whether they were in private or public sectors, have historically experienced negative social implications. Morris was subject to social ostracising and suffered from its psychological impact when he was unsuccessful in reporting Commonwealth Bank of Australia for their alleged misconduct. This outcome was mostly due to the lack of timely responses

from regulators and politicians, whereby there had been piles of lengthy documents to get through.

A sentiment that Morris shared with other unsuccessful whistleblowers when he spoke at the Whistleblowers Australia conference, was that ‘people cheer whistleblowers but they don’t employ them’.

The lack of success in blowing the whistle is a shared issue for public service employees. A former Australian Tax Office debt-collector, Richard Boyle, has been unemployed since he was fired in 2017. Consequently, Boyle suffered financial and mental strain, and is currently faces the possibility of life imprisonment.

These historical trends, coupled with the tensions between private and public sector, makes it increasingly difficult to shift the current social attitudes towards whistleblowers.

Evidently, there is a need for policy reform. One that would uphold the common democratic notion that no one is above the rule of law.

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Embracing

Sustainable Litigation Jack Gilroy

T

o print, or not to print? That is (rarely) the question. Whether spurred by environmental apathy or pre-trial pressures, it has remained a damning indictment upon the legal industry that so few routinely turn their minds to this consideration.

On one hand, it is important to recognise the commendable inroads made by industry heavyweights insofar as reducing pre-litigation paper wastage, particularly in the last ten years. Certainly, the notion of ‘wasting paper’ has been well ingrained into the psyche of the ordinary person as a generally undesirable prospect.

However, the turn of the decade presents the legal industry an opportunity to lead by example. Australia’s tragic bushfire season and the international focus on climate change have created an unprecedented social and political climate, one which promotes environmentalism whilst, incidentally, affording industries an opportunity to appeal to the public interest.

Accordingly, this article will endeavour to acknowledge the inroads made across the private and public legal sectors to reduce paper wastage in preparation for litigation, but will simultaneously consider the ‘uncharted territory’ faced by the industry in the 2020s.

12 | The Brief

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“Though underlined by cynicism, one thing is certain: reducing paper wastage in the present environmental climate is an unprecedented opportunity for firms to market themselves as having considered the environment – irrespective of whether the ‘consideration’ is ostensible or legitimate. In any case, it serves as a means to an end.

Law Firms It seems prudent to begin with the most egregious offenders, the denizens of the print bay, the champions of ‘Ctrl+P’. For law firms, endeavours to become ‘paperlite’ are hindered by a historically entrenched reliance on paper.

Consider the court book – the most notorious offender. High-end litigation often calls for multivolume court books, and the meticulous collation of hundreds of files into a spiral-bound folder of your choosing. Subject to amendment at any point prior to filing, it’s a tall order to expect a paralegal or graduate lawyer to organise a flawless court book in one attempt.

Even after the final product comes to fruition, there remains the expectancy to print off a copy for every party privy to the matter. Herein lies an issue.

However, a stratum of law firms within the last decade have illustrated some semblance of a willingness (and ability) to adopt policies geared towards lessening their carbon footprint, evident, for instance, in the formation of bodies such as the Australian Legal Sector Alliance (‘AusLSA’). AusLSA’s ‘mission’ is to ‘work collaboratively to promote sustainable practices across the legal sector’. Its report titled 2019 Legal Sector Sustainability Update notes a 25% decrease in paper usage across reporting members since 2015.

It might reasonably be contended by some that the implementation of environmental policies amongst law firms is not so much impelled by ethics as it is by the potential enhancement of a business’ brand and reputation. For instance, the Chair of Citigroup, Sam Mostyn observed that AusLSA’s Legal Sector Sustainability Report would be used as a ‘test’ that businesses would incorporate in determining which firms to brief and which individuals to comprise panels. Though it may appear insincere, tangible marketing benefits incentivise firms to pursue environmental policies, such as paper reduction, which, alternatively, would be economically fruitless.

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If the last decade has illustrated that law firms have the capacity to sift through their ‘To-Do’ piles and target (maybe unenthusiastically) paper reduction, amongst other environmental issues, then what can we expect from the next ten years? Law in Order posits that realistic goal-setting, employee awareness and a willingness to embrace technology are three key focus areas for law firms attempting to go ‘paperlite’.

Embracing ‘eBriefs’, capitalising on technologicallysavvy paralegals and law graduates, contracting with legal technology experts, and utilising environmental policies as an edge in a competitive market are perhaps some, of many, possibilities available to the sector.

Though underlined by cynicism, one thing is certain: reducing paper wastage in the present environmental climate is an unprecedented opportunity for firms to market themselves as having considered the environment – irrespective of whether the ‘consideration’ is ostensible or legitimate. In any case, it serves as a means to an end.

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The Courts and Judiciary The courts and judiciary are perhaps vested with the most onerous responsibility to act as a role model in the public eye. Naturally, the extent to which the courts can push for positive change is contingent upon adequate resourcing; limited funding leads to limited change.

An unfortunate corollary is that, as observed by Judge Philip Misso at the Supreme Court of Victoria’s ‘Paperless trials and in-court technology’ seminar, ‘the application of technology in the courts has been slow’. In 2014, the Sydney Morning Herald released an article observing that ‘if you were to stack every paper document held in the storage facilities of Australia’s Federal Circuit Court and Family Court, they’d stand about 24 kilometres high’. The cost of storing these documents: approximately $1 million, annually.

However, recent technological developments in Australia’s judicial system mark an important step in the endeavour for more sustainable litigation, imposing new court-mandated expectations upon the private sector.

For starters, the inception of electronic trials (‘e-trials’) has given substance to the prospect of paperless litigation. As noted by Justice John Dixon, the courts generally are more partial to ‘develop protocols to conduct e-trials’. For instance, the Common Law Division of the Supreme Court of Victoria made the recent shift to electronic filing in 2018. Shifting jurisdictions, the Perth Magistrates Court in 2014 became Australia’s first criminal court to operate entirely from electronic records.

Most significantly, supplementary to the introduction of e-trials, is the embracement of electronic court books and eLodgement. The prospect of removing, from the law firms or the Bar, any obligation to print off lengthy court books is a milestone for the legal sector and sustainable litigation.

So, what’s next? Though historically the courts’ welcoming of technology has been far from expeditious, the judiciary appears more partial than ever to electronic filing and court books. The recent introduction of the High Court Amendment (Electronic Filing and Other Matters) Rule 2019 amends the High Court Rules 2004 to make provision for the electronic lodgement of documents

14 | The Brief

As the industry stands on the precipice of unchartered waters, to what extent will it honour its commitments to engendering environmentally sustainable litigation in the 2020s?”

to commence proceedings, file documents and pay fees without having to attend the Registry. Such landmark amendments ought to normalise the accretion of technology usage in the courtroom, effecting a series of changes (such as encouraging the judiciary to engage with tablet devices) which inevitably lead to an increased usage of semi-interactive court rooms such as the Federal Court’s ‘eCourtroom’. Importantly, the useful by-product of jumping these final technological hurdles is a removal of the industry’s tendency to rely on thousands of hard-copy documents.

Now is the Time to Act As the industry stands on the precipice of unchartered waters, to what extent will it honour its commitments to engendering environmentally sustainable litigation in the 2020s? Frankly, the time for these processes to be implemented is well overdue. If the legal industry has the capacity to deconstruct the intricacies of technology and intellectual property law on a daily basis, then let us hold onto the hope that the industry can employ simple technology to move past its archaic obsession with paper.

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Where Autonomous Vehicles

and the Law Collide Abinaja Yogarajah

Autonomous Vehicles Whilst the unchartered territory of Autonomous Vehicles (‘AV’) is quickly approaching us, Australian and international legal structures may not be able to support the novel situations that accompany it. AV are self-driving vehicles that are capable of sensing their environments and moving safely with little to no human input. The insertion of Artificial Intelligence (‘AI’) at every stage of AV operation creates many questions where the answers may not yet exist. There are many problems that need to be discussed before AV enter the midst of our inquires, such as patenting, data security, privacy, moral concerns and criminal culpability. Whilst this article may not answer all your questions, it will certainly create some.

Patenting in the Autonomous Vehicle Era AV are dependent on hundreds of complex systems with many components interacting interdependently with each other. They vary

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from range-sensing and GPS systems to imaging sensors and so on. These outputs are then processed on the AV’s computing system to fulfil the motion objectives of the vehicle in a safe and efficient manner.

With so many different types of systems and automations involved in the functioning of a car, it is unavoidable that various companies have to collaborate to create functional and dependable driving experiences.

Therefore, AV companies have been relentlessly pursuing the myriad of patenting opportunities provided by complex vehicles. Whilst your standard smartphone has more than 250,000 patents in the US alone, the rapid increase in patenting by the AV industry, combined with the complexity of AV systems, indicate that AV will likely revolutionise intellectual property protection.

One of the biggest concerns in the intellectual property law arena is whether current Australian and international patent regimes are adequate in protecting AI

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However, when we are found in moral dilemmas in reality, we very often behave differently. AV, on the other hand, will behave exactly as it is programmed.”

systems that AV function on. The premise of AI or machine-learning is based on the incremental evolution of underlying systems and algorithms. It strives to duplicate human intelligence by interacting with the world and correcting itself. Given the constantly evolving nature of technology, it raises the difficulty of capturing the invention into a narrow description as required for a patent grant.

Who Owns It? Another issue arises where AI’s self-learning process allows subject matters to be created by the AI itself. If we suppose that the final output is patentable, then who is the rightful owner? Many jurisdictions such as the US and UK have different answers, but there is currently no legal recognition of an AI software program as a legal person, which may change one day.

Avanci Many of the technologies that operate AV are owned by information technology, telecommunication and software companies.

As such, many of the patents involved with AV components will acquire a competitive advantage by becoming exclusive and applying restrictions on their licenses.

However, these AV technologies relate to how cars communicate and share data, and as a result, they become essential standards for communication, safety and security. A company that seeks to tackle the necessity for different AV companies to cooperate and coexist is Avanci. Avanci is an interesting new marketplace that gives users one-stop access to essential patented technology. It

16 | The Brief

was created out of a need for the licenses to essential patents for further research and development. It currently offers licenses to use essential patented technologies owned by 11 member companies, with others expected to be added.

Data Security and Privacy Concerns As AV technology develops, more safetymonitoring systems are inevitably put in place. AV may collect and maintain identifying information about the owner or passenger for reasons ranging from authenticating authorised use, to customising comfort and entertainment settings. This information is likely capable of identifying owners and passengers with extreme accuracy.

Location data is essential for AV and increasingly will be collected for navigation.

It seeks to collect user’s destination information, route information, speed, time travelled, and time spent on the road.

Additionally, as explored in United States v Jones, this type of location information ‘generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about their familial, political, professional, religious and sexual associations.’ As such, cars can be expected to store so much of our personal and sensitive data in the future.

So, what now? Australia’s National Transport Committee (‘NTC’) released a report on AV expressing their concern about its reliance on copious amounts of data to function and the inadequacy of Australia’s current legal structure in protecting individual privacy. They suggest

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that whilst the collection of data could enhance government decision-making in law enforcement, traffic management, road safety and infrastructure planning, it must be balanced with privacy protections. During the NTC’s research, many stakeholders recommended that the government should only be allowed to access data for the benefit of the general public. Specifically, that it should not be used for insurance purposes, commercialisation purposes, surveillance, covert law enforcement or data matching.

Moral Concerns and Criminal Culpability Criminal Culpability What happens in genuinely unforeseeable categories of harm? In the era of AV and multitasking, if a car crash were to happen, how do we attribute liability? What about in cases where a person could have intervened but did not?

Generally, many courts will try to blame it on human error and operation, rather than a machine. Recently, a court attributed an airplane accident to the airline for incorrectly balancing the cargo, regardless of the fact that autopilot was engaged. Having said that, there is a limit as to how much culpability will shift to owners of vehicles, rather than the manufacturer – just for agreeing to their terms and conditions. This was the case in the fatal car crash involving a Tesla AV where the deceased driver was found to have assumed and taken on the risk of engaging autopilot.

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Machines and Moral Concerns We have all heard about the ‘Trolley Problem’. There is a runaway trolley barreling down railway tracks. You can either let it kill 5 people or pull a lever which would divert it to kill one instead.

Does AV raise a new Trolley Problem? As AV will have to make quick moral decisions about whom to kill in the event of an accident, it forces us to confront profound philosophical questions.

As humans, we often have theories in our heads and even tell ourselves what the right thing to do is. However, when we are found in moral dilemmas in reality, we very often behave differently. AV, on the other hand, will behave exactly as it is programmed. Whilst we cannot answer the ethics of machine morality, it is something to consider with the emergence of AV. Conclusion Emerging technologies, like AV, challenge the adequacies of laws when existing legal categories fails to anticipate its novel materialisations. Due to the nature of machine learning, changes in the law that will be required to accommodate AV will almost always be reactive and unprecedented – for now.

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Climate Change A Burning Issue for Australia?

Shrishti Shah

A

s fires devastate Australia, we are seeing an increase in climate change risk to people, animals and the economy. It reinforces the need for Australia to take a stand and substantially increase its efforts to reduce climate change risks. In the recent 25th United Nations Climate Change Conference (‘COP 25’) and the 2nd meeting of the Paris Agreement, Australia promised to reduce emissions by 25% of 2005 levels by 2030. This article will examine Australia’s current efforts to deal with climate change risks and engage with recommendations to prevent the rising of global temperatures.

Nationally determined contributions (‘NDCs’) under the Paris Agreement embody the nationally led efforts taken up by all parties to the agreement to deal with climate change effects. Under the agreement, NDCs do not require states to meet specific greenhouse gas emission targets.

Furthermore, the agreement encourages developed

18 | The Brief

countries that have the resources at hand to take the lead in reducing national emissions and adapting to the impacts of climate change.

As NDCs are not legally binding, three different review processes are required to enforce the compliance of state parties. The first review is the ‘enhanced transparency framework’ where a review by a technical expert is conducted followed by a multilateral consideration review. The second review takes the form of a global stocktake process every 5 years to assess the parties’ progress in achieving the long-term goals of the Paris Agreement.

State parties are then lastly reviewed by an expert committee that can neither be adversarial nor punitive to facilitate implementation and promote compliance.

However, ‘Urgenda Foundation v State of the Netherlands’- a landmark litigation, is giving emergence to the recognition of climate change risks in state obligations through international environmental law. The Urgenda Foundation and

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“How far can litigation, as a solution to the NDCs, go in confronting the modern challenge of climate change?

the 886 co-litigants brought a case to the Hague District Court against the Dutch government to take a stronger stance in decreasing the State’s greenhouse emissions. This raises the question of, how far can litigation, as a solution to the NDCs, go in confronting the modern challenge of climate change?

The end goal for the Netherlands is to cease emission entirely by 2100. Therefore, the main issue was whether the State was acting unlawfully by not reducing emissions by 25% to 40% annually.

Although the total annual emissions for the Netherlands had reduced by 13%, the Netherlands would not be able to prevent further climate change risks without the further 25% reduction. It recognised that there would be enormous pressure on the State to reduce emissions by 49% annually in the future if this change is not implemented. The Dutch government originally wanted to settle with a 14% reduction – though, it would not be enough to meet the emission targets.

The current judgment was a success at the Hague Court of Appeal and the Supreme Court of the Netherlands. The Supreme Court of the Netherlands upheld that the Netherlands must cut 25% of its emissions by next year ‘to protect the residents of the Netherlands from the serious risk of climate change’. The case sets a precedent for future litigation that Australia may face in the near future. However, it is difficult to use the judgement as precedent as the ‘duty to protect’ doctrine that is referenced in the Dutch Constitution under Article 21 does not carry any weight in Australia.

Therefore, reliance on litigation as an option is limited as there needs to be continuous action being taken to meet emission targets.

Under Australia’s NDCs, one of the main goals to reduce carbon emission is to create 23% of electricity

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in Australia from renewable sources by 2020, in addition to the goal of improving the national energy productivity target by 40% in the 15 years between 2015 to 2030 and improving efficiency in vehicles.

Another goal is to reduce greenhouse emissions to around 402-3 million tonnes annually by 2030, which is equivalent to 26-8% below 2005 levels.

Since, there have been some improvements.

Firstly, many companies are going carbon neutral.

The national offset standard allows carbon neutral companies to build a network. Having a network of companies that have become carbon neutral means creating norms and an environment where companies encourage each other to be consistently carbon neutral.

Furthermore, the Clean Energy Finance Corporation’s (‘CEFC’) was introduced to facilitate increased flows of finance into clean, renewable and low emission technologies. The CEFC supports the development of a resilient, balanced and secure electricity system through its investment activities. Australia also introduced a solar energy program between 2017 to 2018 – an initiative by the government that provided over $5 million worth of funding to community groups in selected regions across Australia to install rooftop solar photovoltaic, solar hot water and solar-connected battery systems to reduce emissions. However, the introduction of a new coal mine and fossil fuel subsidies are creating barriers to Australia’s ability to meet its climate change goals under the NDC. The United Kingdom (‘UK’) and New Zealand, on the other hand, have already passed national legislations with the Climate Change Act 2008 in the UK and Climate Change Response (Zero Carbon) Amendment Act 2019 in New Zealand to introduce climate action. The ‘Zero Carbon’ legislation

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makes substantial impacts that aim to make the country carbon neutral by 2050. The UK’s target is to reduce emissions by 80% by 2050. Critically, the UK Government Advisory Committee on Climate Change concluded that if all countries were to follow the UK’s lead, it would lead to a predicted increase of a 50% chance of staying below the 1.5 degrees increase in global temperatures by 2100. Within the 10 years since the Climate Change Act 2008 was passed, the UK successfully implemented a statutory fiveyear carbon budget. This budget provides a cap for emissions within a five-year period. The legislation has also made monitoring and reporting mandatory, and in combination with introduced climate change risk assessments, it has allowed for a healthy reform.

In Australia, the State of Victoria is taking the lead as it enforced the Climate Change Act 2017 (Vic) – although, more needs to be done. The need for more effective action could be addressed properly with a secured federal legislation in place. Thus, Australia should be following the footsteps of the UK and

New Zealand as there is currently no specific legislation that enforces its NDCs from the Paris Agreement. The ‘safeguard mechanism’ under the National Greenhouse and Energy Reporting Act 2007 does provide a framework for Australia’s largest emitters to measure, report and manage their emissions.

Although, the lack of enforcement through the absence of legislation brings about inefficiency in meeting the goal of reducing emissions by around 402-3 million tonnes annually by 2030.

In conclusion, Australia has made considerable changes and has contributed to a reduction in emissions. However, more action needs to take place, to continue to phase out greenhouse emissions all together by the end of the century. It requires a federal legislation that aims to phase out most emissions by 2050. This should be implemented together with a safeguard mechanism that monitors the efforts of the largest emitters and enforces stricter reporting standards.

“... the State of Victoria is taking the lead as it enforced the Climate Change Act 2017 (Vic) – although, more needs to be done. The need for more effective action could be addressed properly with a secured federal legislation in place.

20 | The Brief

Ed.1 2020

Who’s the Owner?

Artificial Intelligence and the Law of Copyright Jessica Zhang

T

here has been an increased global awareness that Artificial Intelligence (‘AI’) are becoming more sophisticated and can now create works independent of human input.

In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled ‘The Next Rembrandt’ which was generated by a computer that had analysed thousands of artworks.

The artwork was created after 18 months of research and experimentation, utilising data collected from Rembrandt’s oeuvre essentially creating a piece that was faithful to his unique brush strokes. The AI’s creators maintain that the piece is not a duplication of an existing piece of Rembrandt, but rather it is a prediction of what the great artist would have painted based on the current data. Ultimately, what has been created constitutes a new piece of work. Yet, the question remains – who owns the copyright? Is it Rembrandt, the programmers, or perhaps the AI itself?

Traditionally, copyright’s utilitarian purpose of encouraging authors to produce work for the benefit of society does not apply to AI who do not require incentivisation. But when AI reaches a level of complete autonomy copyright ownership should, at least, be credited to a distinctly separate entity from the human programmer.

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Looking to the foundations of copyright, the current international legal view and those who are calling for copyright amendments, it becomes clear that at different points of automation, there are two distinct copyright owners. These owners correlate to the level of automation of the program: the programmer who created the AI software and the AI itself.

Unfortunately, with the delay in Australia reforming copyright legislation to protect AI works, it is ultimately discouraging technological advancements as there is a lack of potential commercialisation.

Present Australian Law Since the 2006 amendments to the Copyright Act 1968 (Cth), no major upheaval has occurred in relation to legislation over technological copyright. As such, it is unsurprising that the legislation has fallen behind the advancements in artificial intelligence. The Australian Government has also shown disinterest in reforming the copyright legislations, namely through their failure to discuss AI in the recent Australian Productivity Commission’s report and the Government’s March 2018 Department of Communications and Art paper.

The present Australian legislation in the copyright arena requires there to be a ‘qualified person’ as the author of a work. Non-human authorship is clearly excluded in the statute and reaffirmed in the recent thebrief.muls.org | 21

Yet, the question remains – who owns the copyright? Is it Rembrandt, the programmers, or perhaps the AI itself?”

Federal Court of Australia case, Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16. In this case, both the creators of the program and the individuals inputting data into the program were not provided copyright protection.

This current system is unsatisfactory as it leaves works created by non-human authors such as AI unprotected.

However, as academic Timothy Butler points out, prescribing a fictional human author to works that will perhaps have gradually less involvement with human input is a stopgap measure.

The Programmer’s ownership Originality is a key requirement to obtain protection under copyright laws in most common law countries including Australia. Although AI purports to produce original work, copyright should remain with the programmer when human interaction is still necessary for the creation of works. This will continue to provide incentive to the technology industry to innovate and create AI programs that benefit all markets.

Certain AIs still require human characteristics to work such as judgement, selection, ingenuity, labour, experience and expertise in coding the original program and the data set in which the work is drawn from. These features that cannot be copied into less advanced AI systems are considered as the necessary requirements to meet the originality threshold in Australia. In such circumstances, the copyright should remain with the programmer or end-user as they will have a commercial interest in exploiting the work and not the AI (at least not yet).

To cater to these commercial interests, Australian legislation should perhaps look to the UK system where copyright goes to the person who is responsible for initiating the development of something new. Under UK law, where a literary (including software), dramatic, musical or artistic work is computer-generated, the author is the person who made the arrangements necessary for the creation of the work. This is usually the software engineer who coded the program. This kind of provision allows for the program to be used without fear that the produced work will become unprotected as the efforts such as coding and inputting data collection are recognised. Additionally, if the program is sold and another individual produces work through the AI 22 | The Brief

program but inputs separate data, their work will retain a separate copyright ownership.

AI’s ownership For the majority of humans, it is frightening to think that technology has advanced to a stage where AI can ‘think on their own’. However, the law nonetheless needs to reform to cater to AI works. These original fears of a robotic revolution may have resulted in the stagnation of recognising AI as the owners of copyright.

In circumstances where AI has developed ‘machine learning’ - having the ability to gather individual experiences and make a final decision independent of the will of the programmers - it should be able to own the copyright rather than the programmer.

Like Australia, US Courts require works to be attributed to a human author, meaning that works solely created by AIs are not being protected from unauthorised commercial exploitation. This is becoming problematic where AI is being developed to perform human-like creative functions such as the ‘The Next Rembrandt’ discussed above.

A potential way forward would be implementing specific legislative provisions for AI-derived works. A section of the legislation where amendments may be appropriate relate to the term ‘copyright’. AI programs can be creative long past the life of their original programmer, so it would be appropriate to ensure the copyright term to start from the date of publication.

Conclusion Copyright’s intention is to incentivise creators to contribute meaningfully to society and allow them to control their creations. However, when AI is creating independently, that control and ownership should belong to the AI itself. It is important for Australian legislators to rethink copyright ownership beyond the conventional threshold of ‘human intellectual effort’, as technology has surpassed this. Instead, technology has moved into unchartered territory where the law will need to guide and protect those who are paving the way in the field of AI development.

“It is important for Australian legislators to rethink copyright ownership beyond the conventional threshold of ‘human intellectual effort’, as technology has surpassed this.

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A National Disaster Insurance System It’s What Australia Desperately Needs Nick Haughain

A

t the time of writing, the 2019-20 bushfire season has seen over an estimated twenty million hectares burned, with over 1500 buildings destroyed and 29 fatalities. This is one of the worst bushfire seasons Australia has ever seen.

In the aftermath of this horrific disaster, another crisis has emerged. A national crisis of homeowners not having the insurance needed to adequately recover from the bushfires. When communities cannot recover from natural disasters, social cohesion is destroyed, and residents slowly move away never to return.

Australia is one of the few developed nations which predominantly rely upon private insurance markets to recover from natural disasters. This prevents underinsured or uninsured home and business owners from fully recovering from damage caused by natural disasters.

Of the almost 200 homes destroyed in the October 2013 Blue Mountains bushfires, more than 65% were found to be either underinsured or completely Ed.1 2020

uninsured. According to a December 2017 report by the Victorian government, only an estimated 46% of Victorian households have sufficient insurance to rebuild their homes in the event of a natural disaster.

Low insurance coverage rates illustrate a natural disaster insurance system that it is simply not fit for purpose and is failing ordinary Australians.

The 2011 Japan earthquake and tsunami claimed the lives of nearly 16,000 deaths and resulted in $235 billion of economic damage according to the World Bank. Despite this, only 10% of Japanese businesses and 30% of Japanese real estate are covered by earthquake insurance policies. With only 14% to 17% of households being covered by insurance, recovery has become painstakingly expensive and difficult with a 2014 Japanese government report estimating that 267,000 victims were still living in temporary accommodation six years after the earthquake struck.

In comparison, the 2011 Christchurch earthquake caused possibly up to $30 billion worth of economic damage, yet Christchurch’s physical and economic thebrief.muls.org | 23

When communities cannot recover from natural disasters, social cohesion is destroyed, and residents slowly move away never to return.”

recovery was substantially faster. The New Zealand Government’s Earthquake Commission (‘EQC’), the provider of statutory natural disaster insurance, was able to process a substantial number of claims, paying out over $20 billion in payments. With 75% of impacted households being covered under EQC’s earthquake insurance, recovery was significantly better when compared to previous earthquakes of similar scale in New Zealand history. Despite high coverage rates, ECQ was heavily criticised for the extremely long time it took to settle outstanding insurance claims with a government report in October 2017 finding that 2600 unresolved claims still existed out of 470,000 lodged over six years after the Christchurch earthquake struck.

With low natural disaster insurance coverage rates, many victims of natural disasters in Australia are forced to turn to the courts to find adequate compensation to rebuild their properties.

A lawsuit brought against the Queensland government by nearly 7,000 claimants was settled in the New South Wales Supreme Court in November 2019. Queensland government engineers employed to inspect the Wivenhoe and Somerset dams were found to be negligent, making it the first successful natural disaster compensation class action in Australian history.

However, a compensation model reliant upon individual class actions will fail to provide adequate compensation in most scenarios. For a class action against a

24 | The Brief

government agency over a natural disaster to succeed, the plaintiffs need to establish that the actions of government agencies and officials were negligent and led to an exacerbation of the natural disaster's impact. In natural disasters where no or unsubstantial blame cannot be levelled at government agencies, affected victims will not be able to receive compensation through class actions.

‘Stopgap’ approaches like the federal government’s creation of the National Bushfire Recovery Agency with $2 billion of funds to address widespread and the federal government’s introduction of payments to those impacted will not allow homeowners and communities to rebuild. The lack of funding for bushfire recovery from the federal government is insufficient to adequately rebuild destroyed property.

Only a national natural disaster insurance scheme can sufficiently protect Australian homes and businesses and give adequate compensation to rebuild impacted communities and properties. New Zealand has arguably the world’s best model for natural disaster and its model is appropriate to be introduced into Australia. A national independent statutory body operating under a statute similar to New Zealand’s Earthquake Commission Act 1993 could be created under this model. Under a proposed agency, the Natural Disaster Relief Fund (‘NDRF’) would be able to administer compulsory levies placed on all home insurance policies. Additionally, to address low insurance coverage rates in regional

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With low natural disaster insurance coverage rates, many victims of natural disasters in Australia are forced to turn to the courts to find adequate compensation to rebuild their properties.”

Australia, areas and communities identified to be at risk from natural disasters will be sold heavily discounted natural disaster insurance from the NDRF. The proposed agency will administer the National Disaster Relief Fund, which all monies levied will be placed into. The Fund will be invested conservatively in order to be fiscally independent of the government. If payouts for natural disasters exceed the available amount of money in the NDRF, the federal government will be required under law to continue to payout with funds to be sourced from consolidated revenue.

Under a model similar to New Zealand’s model for natural disaster, disaster relief payouts will be paid out in accordance with the level of compensation to be in line with the level of damage independently determined by loss adjusters operating at arm’s length to the management of the agency. In order to ensure that the NDRF is administered effectively with appropriate levels of staffing and funding, the NDRF will report directly to the Prime Minister and will be accountable to the Parliament of Australia.

Simply copying New Zealand’s Earthquake Commission without accounting for Australia’s unique weather conditions, natural disaster prevalence and political risk will set the Natural Disaster Relief Fund up for failure. The Natural Disaster Relief Fund needs to work collaboratively with other Commonwealth agencies and with state, territory and local governments to

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ensure maximum recovery from natural disasters for affected communities. To ensure effective collaboration amongst the various levels of government, the federal government should push to pass a National Disaster Plan at the Council of Australian Governments (‘COAG’) which would set out a comprehensive natural disaster recovery plan involving all levels of government.

With Australia being one of the harshest environments in the world, and with an increasing prevalence of natural disasters due to climate change, the federal government’s introduction of discounted natural disaster insurance through the creation of the Natural Disaster Relief Fund would allow for property owners and communities to rebuild and regroup for the future. Any continuation of the current patchwork approach to natural disaster compensation across government will simply continue to fail natural disaster victims.

“Simply copying New Zealand’s Earthquake Commission without accounting for Australia’s unique weather conditions, natural disaster prevalence and political risk will set the Natural Disaster Relief Fund up for failure.

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A Brief Conversation

Speaking with

Professor Niloufer Selvadurai Nerissa Puth

Professor Niloufer Selvadurai is the Editor-In-Chief of the International Journal of Technology Policy and Law and Telecommunications, Editor of the Australian Journal of Competition and Consumer Law and Professor at Macquarie Law School, teaching Information Technology (‘IT’) law and Intellectual Property (‘IP’) law.

With a vast portfolio across private practice and academia, she was part of the legal team acting for Optus’ in their bid to become the second telecommunication carrier in Australia and has contributed her expertise widely to law reform inquiries.

I sat down with Professor Niloufer Selvadurai to find out about her exploration of the new frontiers of technology law research, her current areas of research, and her opinion on the unintended (or, intended) consequences of Artificial Intelligence. The Brief would like to thank Professor Niloufer Selvadurai for her time, and her incredible insights on the necessary approach towards governing AI.

What brought you into academia and more broadly, what attracted you to your research in how technological changes undermine the effectiveness of the law?

Initially, I practiced as a solicitor. I started work at Allens and then Ashurst, both in the technology and media law units. I was involved in Optus’ bid to Ed.1 2020

become the second telecommunications carrier in Australia. That introduced me to telecommunications and technology law. I thought there was a lot of potential in the area because many lawyers considered it to be rather too technical and not very interesting. So, I thought that it was a really fascinating area where I could add some value and do something new and original.

When I moved into academia in 2004, there was also next to nothing written on technology and telecommunications law from an academic point of view. It was a wide-open frontier, and to some extent it still is. People interested in IT law often move into practice because there are many opportunities. So [technology law and telecommunications law] is actually quite a small academic field.

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One of the areas that you explored was face recognition technology, which is really entering public discourse at the moment. In 2015, you published an article that referenced Lawrence Lessig. You noted ‘as digital records lack the transience of human memory they form a compelling threat to privacy’. What are some of the intrusive potential that face recognition yield today?

What does it mean to privacy?

Absolutely, great question! There is a spectrum of problems, but I’ll focus on how it threatens autonomy and psychological wellbeing. Digital records don’t have the transience of human memory, meaning that data recorded in don’t evolve with your life – they are static records. So, it really undermines an individual’s ability to control the information that they put out there about themselves. Information that individuals choose to withhold and release and forget are undermined by these huge databases.

Beyond face recognition technology issues – there is the bigger issue of AI governance and data gathered by AI systems. There is the issue of privacy, but there is also a second issue – that is, the monitorisation of data. Alongside losing control of our data and degrees of our privacy, we are also entering a really interesting paradigm where we are giving firms the capacity to monetise aspect of ourselves. When we browse we routinely consent to providing information about our preferences and interests in exchange for accessing a particular digital platform or obtaining a service. That data is often collected and tabulated and sold to corporations. Though facial recognition technology is an important issue, it is part of a wider issue of exploitative data gathering practices.

I would imagine that there would be unintended consequences with facial recognition technologies and more broadly, with AI. Yes, absolutely - though I would also suggest that some of these consequences are intended– I think it also goes to the question of what you can get away with as a tech institution. Even when there are effective laws, there are huge problems of enforcement. So, you get pockets of compliance.

More visible uses have higher levels of compliance, so airports which gather [data] through face recognition technology and police force activities are

28 | The Brief

highly scrutinised. They have secure frameworks. But then you also have other data mining practices by private institutions that just go unchallenged.

As you say, privacy is massively difficult to protect, and an emerging school of thought is viewing privacy as a luxury. ‘Digital natives’ who have grown up in a more open digital space tend to accept a loss of privacy, and even the monitorising of their data by others. But ‘digital migrants’ who have grown up in an era where there was a high degree of privacy are highly uncomfortable with the privacy risks of digital spaces. It is an evolving area and it’ll be really interesting to see how the conversation about privacy and [data monitorisation] evolves in the next few years.

That’s really interesting. As someone that is part of the generation of accepting the lack of privacy and data collection, I can understand the ‘norm’ and assumed trust in exchanging my personal data under the presumption that it will be fine! It is also a reminder for the legal community to scrutinise technological evolutions more closely and bring in questions of ethics and responsibility.

Absolutely, it has entered the law reform discourse in a really formal way. The Australian government has just released an AI ethics framework, the OECD has released AI principles and the Human Rights Commission is conducting an AI inquiry at the moment.

A few years ago when Mark Zuckerberg said that AI was the biggest technology [breakthrough], a lot of people imagined a robot making dinner.

Now, they realise it is much more subtle and that all sorts of decisions, tax assessments, loan assessments, social welfare calculations, are being made using algorithms.

Do you think there is a growing momentum by tech institutions, online intermediaries and academia in trying to bring in some form of governance?

Yes, definitely, I think so. It has been driven by stakeholder’s interests such as those of end-users, investors and workers in tech companies – it is really stakeholder driven, rather than government driven. The stakeholder momentum is leading to a lot of the questions being asked as to accountability, transparency and ethics of AI decision-making

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But although there has been a lot of law reform discourse, it hasn’t translated into a lot of legislative change. There have been many discussion papers and inquires, but they haven’t led to comprehensive statutory changes. The European Union is the notable exception. The EU’s General Data Protection Regulation (‘GDPR’) is really innovative and it creates lots of rights like the right to be forgotten and right to an explanation for AI generated decisions. The EU is, and always has been, the forefront runner of implementing tech policies and laws.

You analyse how technological change undermines the effectiveness of legal frameworks across the fields of IP, telecommunications and media to name a few. What are your current major areas of research?

I developed a legal theory some years ago on how legal frameworks should be reformed to address technological disruptions. And over the years I have applied this model to disruptive technologies in telecommunications, the media sector and intellectual property issues. My current focus is AI. I am looking at how we can take a holistic approach and analyse how new digital developments relate to all our existing laws. That way we can create a consistent legal framework and avoid a mosaic of different, potentially conflicting, laws.

AI is a great new opportunity because nothing has been done. With copyright, the [approach to govern technological disruptions] was incremental. Various technologies, such as photocopying, computing and cloud, each led to small amendments to the Copyright Act 1968 (Cth), like a patch upon another patch. Now when you study IP, you’ll notice that the Copyright Act 1968 (Cth) is a maze of sections.

Fantastic. You did your PhD in Law at Macquarie University. What was your research question and how did you formulate it?

My research question addressed the convergence of telecommunications and broadcasting technologies by designing a new framework for ‘electronic communications’. I did that in 2003 and it still hasn’t happened in Australia. Although, it happened in the European Union in 2005.

Even in 2003, you could view television programs on your mobile phones, and you could

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stream services on your television. And yet, telecommunications had very light regulation because it was conceived as a one to one service and television had high intensity governance because it was conceived as a one to many service involving the public interest. This public/private dichotomy had dissolved but regulation had not adapted So that was my question and that came out of being involved in Optus’ tender when I was at Ashurst.

A lot of students are increasingly interested in a career IP and IT law. Do you also observe this increasing interest? What advice would you give them?

Well I am very biased - I think everyone should do IP and IT. I advise Macquarie students that if you want a point of difference, especially if you want to move into CBD law firms, having a strong technology background is really valuable. IP is also fantastic, but there are a few more people with IP skills as it is more accessible for law students and it seems to be a natural transition for them. IT can seem overly technical and it puts people off. As a result, there is a bit of a shortage. If you walk into a law firm with a strong technology law portfolio; you have done IT, an LLB Honours project in IT or voluntary work (which is not necessarily with a big corporate law firm, but even with community-based work), it helps set you apart.

Partners and Senior Associates also often feel a little uneasy because they are not up to date and are really looking for junior solicitors who have cutting edge understanding of tech law issues. You can’t go wrong with doing IT law and it is not boring as it may seem!

We wrapped up our chat after 16 minutes – which shows you how much valuable information Niloufer has to part in a short time. My chat with Niloufer was a reminder that not all is dark and gloomy as popular culture often depicts AI. The efforts of academics, industries and stakeholders to introduce thoughtful and bottom-up AI governance makes me, and hopefully you the reader, hopeful that AI could still help us solve our toughest challenges as intended – even if it is just being able to have our dinner made by intelligent machines.

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Stuff Law Students Like

A How to Guide to

Becoming a Law Student Isabel Lowe

T

he law student is a uniquely constructed and largely predictable character. A bizarre concoction of Latin maxims, caffeine, booze and late-night library sessions. Our favourite pastimes of textbook readings, legal memes and the law society bi-annual start of semester drinks are surpassed only by our love for the prestige of a law degree. We enjoy nothing more than complaining about how hard our degrees are and telling people that we study law.

The first step towards becoming a law student is not what ‘lay people’ may assume. The purchase of our first textbooks is a key milestone. They will later prove our most prized fashion accessories to be sported around campus and neatly displayed as expensive paperweights on our desks. However, one is considered a true student of the law upon the completion of their Facebook status update. The sweet thrill that runs through your fingers as you type the words ‘law student’ is like no other. This branding will help you connect with other like-minded law students. For the overachievers among us, this update will be coupled with the purchase of your first law society hoodie.

L AW

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A prized piece of couture that may be purchased each year and later framed as artwork decorating the walls of our dimly lit, unorganised offices. This is just the beginning of our new lives as legal proteges.

By the time we finish our second year of law school, we are equipped with a basic understanding of the law and can now assume our roles as educators of our ‘lay’ peers. Our prime times are on night outs with friends and during family gatherings. All those years of watching Suits and mimicking the poise of Harvey Specter in our high school study sessions have proved fruitfall after all.

As a rite of passage into our third year of law school, we develop our elegant and professional LinkedIn profiles. This is to become the Tinder of our remaining law school lives and beyond.

Almost instinctively we share these profiles across our social media platforms, cementing our position in society as intellects. Simultaneously, we hope a glance at our profiles from a Partner at a law firm might land us with an internship.

Unpaid of course.

By our final year of law school, only 20% of us have remained. They, of course, have bravely entered the world of unpaid internships which consist primarily of mastering the art of photocopying and coffee runs.

When those of us who have made it through the wilderness of law school finally graduate, we will complete our final step as law students.

This entails the obligatory graduation post, where at least one or more people will compare themselves to Elle Woods.

We are now law school graduates. Let the bragging continue.

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Postcard Abroad

Seoul, Korea

5 Weeks in the Bustling Heart of Asia Miki Prochazka

I

t had always been a dream of mine to go on exchange. However, the obstacle of finding courses in a semester exchange that would count as academic credit at Macquarie University had me at the thought of just about giving up. Out of interest, I attended an exchange information session and found short-term study abroad options open solely to students for preapproved courses. Before I knew it, I boarded a plane headed to Seoul, South Korea for a 5-week adventure.

My short-term study abroad was at the famous Hanyang University in Seoul. With a beautiful campus filled with an international student cohort, it was a surreal experience. The release of unit schedules lowered my expectation of venturing out into the unknown when I realised that I would be in classes most days a week until 7pm. However, upon reflection, my short-term exchange was far richer and condensed with experiences due to Hanyang University’s hospitality and open-minded culture.

University Life On my first day of a global marketing course, my professor, who usually taught at the University of California, Los Angeles, scanned the international classroom with a stern face. After asking about our nationalities, the whole room was buzzing as we shared different slangs and interesting cultural points from each of our home cities and countries. Professor Kim introduced the first lesson of summer school by explaining the importance of coming out of our shell, venturing to unknown places and noticing the small differences that arise in our daily lives whilst studying abroad. It was the conversation in this first class that set the tone for the rest of my exchange.

The administrators and teachers at Hanyang University that I had the pleasure of interacting with shared the same opinion as Professor Kim. Students were given a list of activities organised by the university that catered to a range of personal interests. From K-pop experiences and amusement parks to cultural dance and cooking classes. Not only did such a wide range of activities take the ease off the stress of

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planning trips, in addition to, keeping up with exchange studies, these experiences were also substantially discounted (which is a great bonus when you’re living in one of the best cities to shop). A friend of mine, a fellow Macquarie University student, took part in the K-pop dance classes taught by one of BTS’ choreographers (yes, that worldwide famous K-pop group). These opportunities goes to show the effort Hanyang University puts into making their international students enjoy their time as much as possible in a condensed period of time. I was able to do things that I not only did not have the time to plan for, but I would not have been able to undertake due to the exclusivity of activities.

To simply describe my experiences with the academic staff and curriculum in one sentence, it was organised, unique and realistic. At the heart of exchange is the experience of another country and culture - rather than the university itself. So, knowing that international students were expected by Hanyang University to be more focussed on surroundings than the textbook in front of us provided relief and led to an enriching experience. I will never forget the warmth of the teachers excited to recommend us their favourite local bars and restaurants, exchanging humorous dialogue about our different cultures and most of all having the peace of mind that there was always somebody in the faculty I could reach out to with ease.

Social Life Hanyang University is the ideal institute for people who are eager to connect with people around the world whilst maintaining a balance of having your own time when needed. Being a bit more on the introverted side, staying at one of the many affordable Airbnb’s close to the campus was a way for me to take a breather from the college atmosphere when needed. At the same time, there were activities with open participation for all students multiple times a week that disseminated through the international student group forums. Such events and outings allowed me to still keep in touch with the people that I was able to meet.

Although the initial thought of exchange can be a daunting experience, short-term study abroad programs offer students a foreign, unique study experience without the stress of credit approvals. Hanyang University, in particular, puts its utmost effort in ensuring each and every student finishes their summer school with a holistic view of Korean culture. In the wide scope of my 5 year degree, those 5 weeks abroad had given me the most growth, joy and, most of all, an international perspective on my degree.

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As a boutique insurance law firm with a practice specialty in dispute resolution, our clients benefit from our depth of practice and our team benefits from the opportunity to hone their specialist skills. In the last year, we handled more than 220 disputed insurance matters.

This quantity of matters, and almost constant engagement with insurers, gives our team the experience to approach every dispute with innovative thinking around efficiency, cost and strategic advantage.

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William Roberts is a market leader Results are a given in this market, that is the price of entry, and our success rate is 95%.

We have led the market in pioneering alternative pricing for litigation matters for a decade. 52% of our matters contain some form of alternative pricing which delivers cost savings as certainty to our clients, and has challenged our peers in the market to do the same.

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Ed.1 2020 Š William Roberts Lawyers

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thebrief.muls.org | 33

A Brief Review

Celine Nalbandian

I

t is undeniable that when it comes to our future, there is a palpable sense of fear and uncertainty.

The socio-political climate is dominated by a plethora of unfamiliar challenges as we enter into the new decade, ranging from immigration and consumerism to technology and climate change.

Years and Years, a confronting and thought-provoking English six-part miniseries on BBC One and SBS consolidates many of these troubles and anxieties plaguing current generations.

Created and written by Russell T. Davies, Years and Years is an intricate exploration into the lives of three generations of one Manchester family, the Lyons, from May 2019 to 2034. The dominant theme, according to Variety journalist Daniel D’Addario ‘is how the individual should or even can react to living through increasingly rapid change.’ Through its representation of an imagined future, the show seeks to answer the question of ‘What If?’ The aftermath of a second term of Trump, the repercussions of Brexit and the rise of China are among its core inquiries. Closely connected to our current reality, the global success of the series does not come as a surprise, having received an outpouring of support from audiences on social media and news worldwide.

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Alongside the story of each member of the Lyons family, the series addresses a number of moral and legal failings. Worthy of note is Emma Thompson’s portrayal of Vivienne Rook; a populist politician with stark resonances to British Prime Minister Boris Johnson and American President Donald Trump. Her unprecedented influence and captivating rhetoric results in slow yet crippling change, ranging from the strengthening of immigration laws to experimentation with ethically ambiguous new technologies. Amongst all this, is a voice of reason emanating from Muriel Deacon, played by actress Anne Reid. Her powerful monologue acts as a warning for humankind – in a society where bananas and butterflies are extinct and England has experienced 80 days of rain, Reid’s character invites others to consider what we are prepared to accept.

Years and Years is a testament to the power of storytelling. It has sparked a series of conversations that while difficult, are necessary. Davies brings together this compelling story with a first-rate cast and outstanding production. For those who complete the series, I ask that when you reflect, you are reminded of the freezing effect of complacency and the power of demanding change.

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