Macquarie University Law Society magazine Edition 3, 2016 (Volume 22)
Edition 3, 2016 | 1
Get connected to the rest of the world Be part of something exciting. Allen & Overy was the first global elite law firm to commence operations in Australia. Our practice comprises hand-selected, top-tier partners, each leaders in their field with an average of 20 years’ experience. Allen & Overy Australia offers comprehensive legal services in the Australian and international market. Much of the work performed by lawyers in Australia involves cross-border deals including inbound investment by international clients and outbound investment by Australian clients; international disputes and regulatory reviews; project financing for projects both in Australia and around the world; and international bond programs. Allen & Overy Australia offers the best of both worlds: the expertise and resources of a global elite law practice coupled with a leading group of senior domestic practitioners. We provide our clients with instant access to the firm’s regional and global resources, enabling the Australian team to deliver innovative, timely and cost effective legal solutions. Our Australian operations in Sydney and Perth are fully integrated into Allen & Overy’s global network. The offices offer has three core Practice Groups offering a full suite of corporate, finance (debt and equity) and litigation services. Within these, the practice areas are diverse, including International and Debt Capital Market, Mergers & Acquisitions, Private Equity, Projects, Structured Products,
Funds, Competition, Asset Finance, Tax, Energy & Resources, Litigation and International Arbitration. Clients increasingly need global service providers and we are currently one of the only firms in Australia able to provide a fully integrated domestic, regional and global offering. As a Summer Clerk, you will be exposed to premium quality domestic and international work and will also participate in various exercises that simulate real transactions from beginning to end, providing a valuable insight into the role of an Allen & Overy lawyer. Please visit the Australian Student and Graduate pages on our Careers site – www.allenovery.com/careers (click on Australia). Applications for our summer clerkship program in 2016/17 open on 15 June 2016. The website also contains the details of our clerkship program in Perth.
For further information please contact us at australianrecruitment@allenovery.com
2 | The Brief Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. © Allen & Overy 2016
allenovery.com
Contents REGULARS
6
What’s New in the Law Maddison Passarelli
FEATURES
8
24
Social Justice Corner: Discussing the Role of Technology Rhiannon Bell
10
32
Avenues of Your Law Degree: Matthew Tracey Maddison Passarelli
11
Cybercrimes and Personal Privacy: How Effective is the Law? Noelle Martin
Under the Radar: More Than A Face In The Crowd? Jemima Bissett
The Constitution and Protecting Free Press in Australia: An Opportunity for Oppression? Alexandra Larkin
14
16
19
Convenience vs Cybersecurity: Implementing Electronic Voting in Australia Nick Owczarek
Devil’s Advocate: Open Data Jessica Coventry Shivani Gosai
Sorry Isn’t Good Enough Olivia James
22
26
28
The New Era of Space Law Dusan Djukic
ADDITIONALS
36
Inspiration for Law School Brendan Lord Karina Hawtrey
Is Australia Being Smart at Funding New Infrastructure? Guillermo Umaña-Restrepo
39
A Postcard from Abroad: Ottawa Daniel Symington
The Gender Gap: Changing the Mindset Angela Metri
42
A Brief Review: Dangerous Ideas for Paramount Fears Kathlyn Gonzales
See what we’ve been posting on our blog
Universal health care: A close reality or a distant ideal? What is hindering universal health care? Writer Matthew Harris reports on the difficulty in balancing the rights and responsibilities of governments, companies and individuals.
Philippines President uses brute force to fight the war on drugs Since sweeping into power, Rodrigo Duterte has implemented a tough stance on drug crime, including endorsing extra-judicial killings. Writer Jessica Coventry explains the new ‘war on drugs’.
The Cure to Australia’s Deadly Festival Culture How can the law deal with the use of recreational drugs at music festivals? Writer Rhea Rana looks at the viability of pill testing as an alternative to arrests and confiscation. Edition 3, 2016 | 3
Editor-in-Chief’s Welcome Dear Readers, I present to you The Brief’s final publication for 2016 which follows the theme ‘Opportunities’. In this edition, our writers questioned the effectiveness of the law, examining how and whether it has accommodated new developments. The articles here are varied, ranging from discussions about issues created by advancing technology to the protection of free press in Australia. Other excellent articles examine: the viability of electronic voting, the case for open data, the representation of Indigenous people in tertiary education, the current space law framework and many more. The edition also contains an interview with Matthew Tracey, a former MULS President, about his career after graduating from Macquarie University. The edition then concludes with insights into two final year students’ theses as well as a review of the Festival of Dangerous Ideas at the Sydney Opera House.
Edition 3 Volume 22 October 2016 Editor-in-Chief Sarah Li Yee Lien Deputy Editor Nick Owczarek Designer Nathan Li Contributors Rhiannon Bell, Jemima Bissett, Jessica Coventry, Dusan Djukic, Kathlyn Gonzales, Shivani Gosai, Karina Hawtrey, Olivia James, Alexandra Larkin, Brendan Lord, Noelle Martin, Angela Metri, Nick Owczarek, Maddison Passarelli, Daniel Symington, Guillermo Umana-Restrepo. Sub-editors Swatilekha Ahmed, Emma Breislin, Wendy Doan, Smeetha Jayakumar, Isabelle Marcarian, Raveena Randhawa, Jake Roche.
4 | The Brief
As 2016 is coming to a close, many of you are probably reflecting on your experiences throughout the year. Looking back on The Brief, the publication underwent significant changes. Edition-wise, we introduced new segments to diversify content and also cater to a wider audience. On the other hand, our online presence flourished due to moving our blog to a new platform and a bigger team of student contributors – including non-law students for the first time ever! However, this year’s initiatives would not have been possible without the involvement of my subcommittee and the help of Deputy Editor Nick Owczarek and the MULS Publications team. Thank you all for your support – it’s been a pleasure working in this role. I look forward to seeing what next year brings to The Brief, which I’m sure will continue to exceed beyond expectations. Happy reading and all the best, Sarah Li Yee Lien | Editor-in-Chief
Editorial Review Robert Ephraums Campus Engagement – Team Leader David Yao Director (Publications), Macquarie University Law Society Image Credits Shutterstock.com unless otherwise specified. Find us online The Brief’s editions and online content can be found at: http://muls.org/brief/ or through our Facebook page. 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 following from the publication of material in The Brief.
MULS Welcome MULS is proud to publish the third edition of The Brief for 2016. As anticipated, this edition is filled with quality submissions from your fellow Macquarie Law colleagues, guaranteed to pique your interest and challenge your opinions. We’re on the home straight, the end of the semester is in sight and the sun is beginning to shine, as if it’s alluding to the summer holidays. Before you pack away your textbooks and close the millions of Internet tabs (covering every legislation and journal article imaginable) there remain a few hurdles. First, start thinking about your Law Ball outfit; second, prepare for the upcoming MULS Elections; and third, buckle down for those final exams and assessments – it’ll be worth it in the end! Over the past two months, MULS has been working hard to deliver on its objective to serve the Macquarie Law community. We’ve hosted a successful Intervarsity Sports Day, where we displayed our athletic prowess in healthy competition against other law student societies from NSW – even taking out the netball championships! We also threw one of the biggest start-of-semester parties, selling out of 600 tickets to MULS members and friends. As well, we hosted various competitions to assist students in building their practical skills.
What’s On
Cheers, Patrick Barkachi Macquarie University Law Society
13-16 October: MULS Elections
29 October: Law Ball
in Semester 2
18 October: MULS AGM
Throughout the year, MULS has also held diverse careers events in collaboration with the Law School, including the ‘Options with Law Fair’ and the ‘Launch Your Legal Career Seminar’. We organised a successful ‘Social Justice Speaker Night’ with an impressive panel discussing ‘Liberty and the Law’. Our Social Justice department are also holding several events throughout Mental Health and Wellbeing month and on RUOKDAY, to help raise money and awareness around the importance of mental health. This is especially pertinent in the legal profession, which is afflicted with relatively high levels of depression. By way of congratulations, I’d like to point out that this is the final edition of The Brief, under the capable direction of Sarah Li Yee Lien. Sarah has done so well to build upon and exceed the work of her predecessor (which was me). Sarah’s creativity and ambition is evident in the exponential growth in readership and quality of the blog, and in the three perfected print editions for 2016. With pleasure, MULS presents Edition 3 of The Brief 2016. Enjoy the rest of your semester.
14 October: MULS Social Justice Trivia Night
9 December: MULS Christmas Party (Tentative)
Edition 3, 2016 | 5
INDIGENOUS DEATHS IN CUSTODY
Maddison Passarelli
Recently, NSW had its first Indigenous death in police custody in over 16 years. Rebecca Maher’s death has not only caused community outrage but has questioned the enforceability of recommendations from the Royal Commission regarding Aboriginal Deaths in Custody. Police are obligated to notify the Aboriginal Legal Service of the arrest and detainment of an Indigenous person through the Custody Notification Service. Allegedly, a range of procedural requirements are continuously being ignored by police when arresting Indigenous people.
ADVANCED TECHNOLOGIES FOR THE AUSTRALIAN FEDERAL POLICE (AFP)
The AFP now has access to a new digital forensics lab, the most advanced in the Southern Hemisphere, which has been said to help fight crime before it occurs. With technology facilitating a rise in crime, the AFP has had to think fast and be proactive. While the internal operations are top secret, it is said to be helping the AFP anticipate and prevent cyber-crime. INDEFINITE DETENTION FOR CONVICTED TERRORISTS
After consultations between the Australian Government and political leaders, indefinite detention may soon be expected for convicted terrorists who pose a serious continuing risk on the wider community. This idea is endorsed by the Australian Security Intelligence Organisation and Attorney-General George Brandis, and could be effective from April 2017. JUSTICE FOR ALLISON BADEN-CLAY
ADMISSION AT THE CLICK OF A BUTTON
In 2014, Gerard Baden-Clay was convicted of murdering his wife. The Court of Appeal downgraded the conviction in December 2015 to manslaughter. Recently, the case’s appeal in the High Court reinstated the 15-year murder conviction. To suggest that the jury’s guilty verdict was unreasonable, due to the Crown failing to exclude the possibility that the killing was unintentional, was not accepted on the evidence presented to the Court.
As early as November 2 0 1 6 , NS W law graduates will be able to apply online for admission to the legal profession. Online applications will provide a checklist required to ensure it is aptly supported and that a decision will be returned in three to four weeks, providing more convenience to candidates.
WA BAIL LAWS TARGETING SEX OFFENDERS
WA is considering law reforms that would refuse serious sex offenders bail as they await sentencing. This comes after community outrage after the release of Ryan Trevor Clegg, a member of the ‘Evil 8’ paedophile ring before his conviction of numerous counts of child sexual abuse in early 2016. The motivations for such changes are centred on prioritising community safety and preventing repeated cases of offenders breaching bail conditions. 6 | The Brief
BE A PART OF EVERYTHING
INTERNATIONAL GRADUATE CAREERS IN LAW Join Herbert Smith Freehills and you’ll do more than just experience life at a leading law firm, you’ll be a part of everything we have to offer - whether you’re working on a high-profile takeover, catching up with an overseas client or taking on some challenging pro bono work. It’s an environment in which your perspective, ideas and experiences will make a real difference. Don’t just experience everything, be a part of it.
Edition 3, 2016 | 7 SEARCH HSF GRADUATES FOR MORE GRADUATE EMPLOYERS 2016
Cybercrimes and Personal Privacy:
How Effective is the Law?
I
Noelle Martin
t seems more common nowadays that we hear stories about nude photo scandals. News outlets report a range of circumstances: from young girls taking their own lives, celebrity photo hacks and even Northern Territory government ministers embroiled in revenge porn scandals. More recently, the target has hit closer to home. School students from over 70 Australian schools have been caught in a pornography ring which spread thousands of non-consensual sexually explicit images of young girls. The news is dominated by instances of ‘revenge porn’. That is, the distribution of sexually explicit or intimate images of another person without consent, usually by ex-lovers. But we rarely hear about ‘parasite porn’ which is when ordinary images are taken from a person’s social media site and posted on threads in a pornographic site, usually alongside offensive and objectifying comments. In other words, you might not have taken a single sexually explicit photo of yourself but you are still not immune from sexual cybercrime. We also rarely hear about ‘morphed porn’ where ordinary images are manipulated and superimposed on naked bodies and posted on porn sites. The bottom line is that in today’s age of technology, while revenge porn may be on the rise, it is not the only issue compromising our personal privacy. While young women are the primary targets of such invasions of privacy, anyone can fall victim to sexual cybercrime. So what laws, if any, are in place to protect our personal privacy in this digital age? Unfortunately, Australia is yet to 8 | The Brief
criminalise revenge porn. There are only two state jurisdictions (South Australia and Victoria) that have implemented revenge porn legislation. For example, in Victoria it is an offence, punishable by up to two years imprisonment, to maliciously distribute or threaten to distribute intimate images without consent. However, these criminal provisions have been criticised for being too ‘weak’ a punishment for perpetrators and too ‘broad’ in scope to capture the harm caused by revenge porn. Unfortunately, the majority of Australian States have not criminalised revenge porn. Victims instead predominantly rely on civil actions to seek redress for invasions of personal privacy. Contrary to popular belief, a general tort protecting personal privacy does not exist in Australia. As such, courts have tried to fit cases involving circumstances of ‘revenge porn’ into existing causes of action. Consequently, what has resulted is a quasiprivacy tort, namely an equitable action for breach of confidence that was set out in the notable case of Giller v Procopets. The recent case of Wilson v Ferguson applied the principles set out in Giller v Procopets and relied on an action for breach of confidence in circumstances of ‘revenge porn’. In this case, Ferguson and Wilson were involved in sexual relations and shared sexually explicit photos and videos of each other during their relationship. When the relationship ended Ferguson posted the intimate photos of Wilson to Facebook for public viewing without consent. Wilson was left severely emotionally distressed. But is this quasi-privacy tort effective in dealing with the rise of revenge porn?
Firstly, the quasi-privacy protection fails Jersey, for example, it is a crime to disclose to sufficiently punish perpetrators and deter any photograph, film or videotape of future incidences of sexual cybercrimes. another person whose intimate parts are Given that the harms felt by victims of exposed or who is engaged in a sexual act sexual cybercrime are significant, including without consent, punishable by up to five increased vulnerability to suicide, stalking, years’ imprisonment. Unlike New Jersey, depression, emotional distress, humiliation California’s revenge porn laws require proof and even hinders employability prospects, is of intent to cause serious emotional distress it really enough to simply award an injunction and evidence that the victim suffered serious and provide monetary compensation to emotional distress. victims under this quasi-privacy protection? However, all hope is not lost for Australia. Additionally, the quasi-privacy protection In late 2015, Tim Watts MP introduced in Australia fails to provide adequate justice a Private Members’ Bill in the House of for victims. It is somewhat paradoxical Representatives which would criminalise that civil actions intended to protect our revenge porn, although it wasn’t passed into personal privacy doesn’t necessarily law. In March 2016, the NSW Legislative achieve this outcome. An action for breach Council Standing Committee on Law and of confidence means that victims may not Justice released a report on serious invasions remain anonymous, unlike the protection that of privacy and on 5 September 2016, NSW criminal prosecution affords. In Attorney-General Gabrielle “…you might not fact, victims may be reluctant to Upton announced that the seek civil redress because it is have taken a single NSW Government will seek to timely, costly and emotionally sexually explicit criminalise revenge porn. taxing on vulnerable victims, Deciding to criminalise photo of yourself not to mention, raises the revenge porn is just one step potential of increased publicity. but you’re still not in dealing with this issue. For But even if Australia’s immune to being NSW and the rest of Australia, laws were to change, there questions arise as to what this the target of sexual are inherent problems for new law would proscribe. Would cybercrime.” lawmakers in addressing these the penalties be stronger than issues due to the nature of the two years imprisonment as set digital landscape. Firstly, there are difficulties out in Victoria and South Australia, or would it in enforcement and punishing perpetrators, be closer to five years imprisonment like the especially where websites are run outside American models? How could it reconcile the of Australia. Secondly, once an image is inherent problems of enforcement and the online it can be very hard to remove because removal and detection of photos? Additionally, images can be shared instantaneously over will this new law also capture instances of the Internet, causing immediate damage ‘parasite porn’ or ‘morphed porn’? to the victim before the law can even step So, how do you find out if you’re a victim in. Thirdly, there are difficulties in detecting of sexual cybercrime? A simple Google intimate photos as quite often victims are Image Reverse Search is a start to see if incognisant that these photos have been and where your photos have landed on the posted online. Once victims become aware Internet. If you do find there are images of however, the images have already gone viral, yourself on pornographic sites without your making their removal near impossible. consent, Google now allows you to request In the US, the situation is quite different. the removal of photos or videos on search Around 34 States have already enacted results. We’ve waited a long time for revenge revenge porn legislation, most of which are porn legislation but at least now the future based on the New Jersey or the Californian is looking somewhat more promising for models, which differ significantly. In New Australia. Edition 3, 2016 | 9
Under the Radar
More Than A Face In The Crowd? Jemima Bissett
T
he days of being able to hide as a face in the crowd may soon be coming to an end. Due to technological advancements, there is now an opportunity to identify personal information, such as criminal history and income, without having to provide your name. This is part of the growing area of biometric technology, which includes facial recognition technology that allows computers to identify you simply by seeing your face. But this technology is not new and chances are you have likely used it yourself. Image messaging app Snapchat has already incorporated this kind of technology into its products through its range of filters and face swaps. However, while Snapchat may provide entertainment by generating fun animation on our faces, biometric technology has more serious implications which must also be considered. Law enforcement authorities are already starting to see the positive and negative potential of biometric technology. In September 2015, the Australian Government announced an $18.5 million investment into the National Facial Biometric Matching Capability, an initiative funding the use of facial recognition technology for the purposes of combatting crimes such as terrorism and identity theft. There have also been suggestions that such technology could draw from other sources, such as CCTV footage or Facebook photos. But what are the possible issues arising from the use of biometric technology? Privacy The collection of biometric information is authorised under the Privacy Act 1988 (Cth), allowing the collection of “sensitive information”, including “biometric information”. This could occur without our permission or knowledge. Authorities may soon be capable of knowing our precise movements, removing 10 | The Brief
the right to anonymity found in the Privacy Act. This could also be dangerous for individuals like domestic violence victims. If such data was accessed by the wrong people, the consequences could be life threatening. Imperfect Nature of the Technology Just as we may often forget a familiar face, facial recognition technology is far from perfect. As the technology relies on recognising patterns, there is margin for error. The FBI reports a 20 percent error rate in their use of the technology to identify criminals. While DNA is accepted as being a highly reliable form of identification, the question raised is whether courts will accept a positive facial recognition match as reliable evidence. Is it all bad? Facial recognition technology has assisted in keeping Australia safe. It is reported that authorities used various biometric technologies in positively identifying Osama Bin Laden in Operation Neptune Spear back in 2011. Furthermore, a 2012 survey demonstrated that 92 percent support police using facial recognition technology to capture offenders through security footage. Therefore, there are great benefits for authorities in utilising this technology in association with large amounts of data. Though such technology can assist in preventing crime, the serious consequences of its misuse mean it should be utilised with the utmost caution. Our faces should not be used as another set of data to be exploited – they are part of what makes us human. Storing such data creates too much potential for irreversible consequences and is a step too far towards merging technology and personhood. We cannot risk the loss of something so significant.
The Constitution and Protecting Free Press in Australia:
An Opportunity for Oppression? ď € Alexandra Larkin
J
ournalism is a fundamental pillar of democratic society. In the absence of free press, governments may operate unchecked in its capacity to legislate, potentially creating an avenue for the breakdown of civil liberties and abuse of power. It is therefore essential for the free press to act as a restraint mechanism by maintaining transparency between society and the government. With this understanding, democracies around the world have extended special privileges and immunities to journalists. The US protects journalists under the First Amendment while the European Convention on Human Rights protects freedom of expression under Article 10. Despite this, the common law basis for the protection of free press in Australia has been challenged in recent years, as the legislature introduces restrictive laws in a response to national security concerns.
Free Press as a Judicial Construct The media is an essential and powerful medium for society to access information and ensure the accountability of their representative administrations. Legislative impositions on free press can create biased reporting by effectively extending state media so that only authorised government material is published. The Australian Constitution does not explicitly guarantee free press. However, it has been held by the High Court that freedom of political communication is implied in the Constitution. One of the earliest High Court decisions relating to free speech held that: “it is unacceptable in our democratic society that there should be a restraint on the publication of information relating to a government when the only vice of that information is that it enables the public to discuss, review and criticise government action�. >> Edition 3, 2016 | 11
The High Court further explored the implied constitutional right of political communication in Lange v Australian Broadcasting Corporation (‘Lange’) by developing a two-step test to determine whether the implied freedom was infringed by the legislation. The Court confirmed that freedom of political communication was implicit in the Constitution because the Australian system of representative governance made it an essential pillar. The decision thus ensured political accountability by permitting consistent scrutiny by an engaged and informed public, despite the absence of constitutionally enshrined rights for free speech and free press.
a legitimate means of protecting against terrorism. The expansion of national security into the realms of military, economic and social areas has legitimised widespread confidential government operations which are constitutionally permissible under the public interest test.
Source Protection The ‘golden rule of journalism’ is the perpetual loyalty of a journalist to protect the anonymity of their source. In the absence of journalistic sources, there are lower levels of public scrutiny. The common law recognised this in John Fairfax & Sons v Cojuangco, which found that disclosure of a source’s anonymity will not be permitted Opportunistic Reform? unless justice cannot be achieved without Technology today is transforming the way exposing the source. This was codified by people access and consume news. The recent legislative amendments that now Internet now provides an offer protection to sources. unrestrained forum for free The law has also removed “Increased concern speech and the opportunity sanctions that formally acted for public comment with for national security as deterrents on the free flow lower distribution barriers of information. Journalist has also justified for ad hoc media outlets to an intrusion into the privilege was codified in disseminate news. Equally, the common law through the Internet has expanded privacy of individuals the Evidence Amendment while limiting the the definition of a ‘journalist’, (Journalists’ Privilege) Act with every individual now capacity of the press 2007 (Cth). This was a able to communicate and reaction to public outcry to publish.” inform the public. when two journalists were The law has reacted to the charged with contempt of enhanced accessibility of information and court by failing to reveal their source in R v simultaneous growth of national security McManus and Michael Harvey. The onus is fears by introducing several legislative now on the government to argue the public limitations. In Lange, the High Court interest in revealing a journalist’s source. determined that legislation is authorised to The Public Interest Disclosure Act 2013 encroach upon free press where “reasonably (Cth) protects public officials who make appropriate and adapted to serve a legitimate certain public interest disclosures and seeks end”. However, as contemporary society to encourage transparency of government seems to operate in an indefinite ‘War on administration. Under these laws, a Terror’, there appears to be consistent whistleblower is protected when they release grounds for oppression of public access to information about the administration or public information. Increased concern for national officials that is perceived to be in the public security has also justified an intrusion into interest. Whistleblowers are now able to the privacy of individuals while limiting the retain their anonymity, receive remedies for capacity of the press to publish. It is argued unfair dismissal as a consequence of their that legislative intrusion into the free press release of information under the Fair Work is constitutionally consistent because it is Act 2009 (Cth), and enjoy immunity under 12 | The Brief
administrative, civil and criminal codes. However, this Act retains some significant exceptions. The activities of politicians and intelligence agencies are exempt from public disclosure. Additionally, conduct will not be considered “disclosable” if it is a legitimate exercise of the public official’s functions. Concerns for national security have seemingly justified an intrusion into the privacy of individuals, and have led to legislative restrictions on the press and their sources in revealing details about these operations. The National Security Legislation Amendment Act 2014 (Cth) introduced imprisonment penalties for sources, journalists and potentially social media users who “engage in any subsequent [unauthorised] disclosure” of Special Intelligence Operations (SIOs). These operations are not statutorily defined; rather, the determination of an operation as an SIO is made arbitrarily by an Australian Security Intelligence Officer, and without judicial oversight. A SIO is not liable to civil or criminal standards, and in the absence of public scrutiny, there is potential for gross human rights violations. The corresponding introduction of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) has limited the ability for sources to reach out to journalists anonymously. The law now requires telecommunication providers to retain metadata information on all users’ phone calls and Internet communications for a period of two years. This information may be accessed by government agencies without a warrant, without judicial ruling and without the knowledge and consent of the individual whose data is being accessed. However, to access journalists’ metadata, a judicial officer must grant a warrant. This requires balancing the arguments of a public interest advocate against those of the state. The issue with this process is that it is undisclosed. The public interest advocate cannot inform the journalist of the warrant. Consequently, any argument put forward by the public interest advocate will lack supportive evidence from the journalist,
such as the public interest aspect of a story, or any particular reason why the source should remain confidential. In response to the proposed laws, it has been stated that the “assaults on press freedom are real, and threatens the fourth estate’s ability to operate in a functioning democracy”. In the absence of information sources due to these strict sanctions, the abilities of the press are significantly diminished. The capacity of the internet to facilitate anonymous mass publishing perhaps offers whistleblowers a secure alternative, bypassing journalists to selfpublish information online, without the public interest filter journalists have historically offered. To this end, new national security legislation could prove to be more detrimental to national security interests. Conclusion The absence of constitutional protections for the Australian media has allowed the government to erode rights that are fundamentally guarded in other democracies. Australia is the only Western democracy not to have a national Bill of Rights, though the finding in Lange offers implied constitutional protection for free political communication. Legislative privileges have allowed the press to publish and generate public discussion about significant issues in Australian society. However, society’s concern regarding terrorism has led to a political climate in which free press has been seriously curtailed. While whistleblower protections have increased, the most significant government operations have escaped legislative and judicial accountability with the simultaneous exclusion of press accessibility. The recent legislative amendments have raised potential constitutional questions as to whether they collectively intrude on the implied right of political communication determined in Lange. In the absence of free press, Australia faces the potential deterioration of government accountability and integrity of its democratic system.
Edition 3, 2016 | 13
Convenience vs Cybersecurity: Implementing Electronic Voting in Australia Nick Owczarek
C
alls by Australian politicians for the introduction of a widespread electronic voting system tend to follow the passing of each federal election. This year’s election was no different, with Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten both endorsing electronic voting for future elections. With the counting of votes taking weeks to finalise, it’s not hard to see why – the length of time waiting for confirmation of our new government could be cut drastically. However, implementing an electronic voting system is not as simple as it seems. What exactly would an electronic voting system encompass? Which jurisdictions are currently using it? What do we gain, and what are the potential risks? These are some of the fundamental questions that must first be addressed. Types of electronic voting Electronic voting can take place in a number of ways. These range from voting inside official venues, supervised by polling officials, or voting remotely from home or elsewhere. When voting inside an official venue, the procedure would typically rely on computer terminals or touch screen machines. These require the voter to select their preferences on a digital screen. The result is eventually stored on a central database. While not widely used in Australia, this kind of system has been trialled in Victoria and the ACT, and has been used in the US (at a state level), the Netherlands and Brazil. 14 | The Brief
A system more commonly used in Australia, however, is remote voting. In NSW, for example, the iVote system introduced in 2011 enables vision impaired, disabled voters and others who come under the eligibility criteria to vote by Internet or telephone for NSW State elections. To use iVote, voters must register to vote using the system, which involves providing a 6-digit PIN of the voter’s choice to be used as verification when voting, as well as proof of identity (driver’s licence or passport). The voter is then sent an 8-digit number enabling access to the system online or by phone to vote on the polling day. The use of systems like iVote is provided for in s 120AC of the Parliamentary Electorates and Elections Act 1912 (NSW) as a ‘procedure’ for ‘technology assisted voting’. It should be noted that electronic voting is distinct from electronic counting, which would still heavily rely on a paper-based system. This might involve something similar to how multiple choice responses are marked for university exams, where completed ballot
papers are inserted into a machine, scanned, and the preferences stored. Why introduce electronic voting? As mentioned, a primary benefit of introducing this type of technology is that the result of an election could be confirmed very quickly – possibly in a matter of minutes. This would help the count in especially tight elections, like the most recent election count which took over a week to confirm majority government. Serious mistakes like ballot papers going missing (which occurred in the WA Senate election in 2013) could be entirely avoided. Informal votes could be minimised with platforms designed to ensure voters adhere to guidelines (e.g. how to number their preferences). The amount of ballot papers (45 million were printed for the most recent election) could be sharply reduced, mitigating environmental impact. Eliminating the 1.3 million postal votes made at federal elections, which link your name and address to the vote you’ve cast, could guarantee better anonymity. Finally, taking into account accessibility, convenience and the potential cost savings in administering an efficient electronic voting system, it is evident there are strong arguments for voting electronically. Why keep the system we have now? There are equally strong arguments against dispensing with a ‘tried and tested’ paperbased system. The core of the concern regards security and reliability of an electronic system, particularly an unsupervised remote one. The change in technology raises many questions. Is the encryption we have today secure enough to protect votes? Can we guarantee any more anonymity than what is already provided in a paper system, and could anonymity be reduced? Could any code used to tally up votes be incorrect? Can the system be adequately audited? Aside from hacking, what about unpredicted bugs and glitches that allow opportunistic voters to manipulate their vote or the votes of others? And if the system is hacked, what does that mean for the validity of results? Will it mean the entire nation must go back to the polls?
Another concern is whether an Internet voting website could cope with the strain of millions of people voting at once. This concern is not unwarranted with Australians receiving a taste of system meltdown on Census night this year. Despite its development being outsourced to tech giant IBM for $9.6 million, millions of people were unable to submit their information and were effectively shut out of the Census website. Combined with claims of a denial of service (DoS) attack on the Census servers, the census debacle raises genuine fears in shifting to an onlinedependent system. Many have also remarked that because much of our everyday life takes place online, we take digital security provided by banks and online shopping stores for granted. However, Victorian MP Tony Smith observed as Chair of a 2013 inquiry assessing electronic voting options that voting is not an ‘everyday transaction’. The stakes are much higher, and hacking remains a paramount concern. Even though NSW’s iVote was generally well-received, academics did uncover security vulnerabilities in the system for the 2015 NSW State election that could have been exploited to alter votes and jeopardise verification of voters. In short, by implementing a remote digital system based on current technology, the integrity of the democratic process could be put at serious risk. Conclusion An electronic system of voting and counting is a great opportunity for the Australian democratic process to evolve. This being said, the benefit of automated counting has to be balanced with the omnipresent risks that exist in cyberspace, as well as the financial costs. Perhaps, over the short-term, a system of electronic counting could be introduced as a compromise. This system would still rely on paper but it would simultaneously test the possibilities of an electronic system. Regardless, until cybersecurity concerns can be resolved, we might be better off waiting for the election results in a paper-based system. Edition 3, 2016 | 15
Open Data: Supporting Transparency or Increasing Vulnerability? Devil’s Advocate
For
S
Jessica Coventry
everal countries have begun to recognise the benefits of open data with respect to private companies. In New Zealand, the implementation of the Open NZ Companies Register has provided transparency, encouraged adherence to tax laws and increased business efficiency. In Australia, over 40 prominent political leaders have signed an open letter urging Prime Minister Malcolm Turnbull to promote transparent multinational company tax information by banning shell companies. As the biggest data leak to date, the Panama Papers scandal in April 2016 highlighted the need for further regulation and monitoring of corporations, the issue of tax avoidance and how this could be resolved by open data. While opponents of open data raise privacy concerns, one of the fundamental principles of the open data concept is to ‘protect where required’. In the context of company tax data, this would mean only releasing data necessary to ensure the ethical operation of the company. Contrary to popular opinion, open data respects the fundamental privilege of privacy by maintaining confidentiality such as information linked to the competitive advantage of a business. With an estimated one-third of the world’s wealth residing in offshore accounts, this lack of transparency is contributing to current financial problems in the global economy. That is, it is nurturing the capital of the wealthy by protecting their money in tax havens, while disadvantaging wider society as money is not being effectively distributed to the public. By allowing anonymous ownership of offshore companies, there is no accountability and 16 | The Brief
this allows such companies to cloak their activities. Particularly in less developed countries, lax laws facilitate the easy setup of shell companies. The Caribbean for example is the most popular location for offshore accounts - the British Virgin Islands alone hold more than 100,000 shell companies. In recent years, efforts have even been made to implement open data in the Caribbean region through initiatives that support and provide technical assistance in opening non-sensitive data to the public. Therefore, attitudes to open data are already changing as individuals seek more transparency. Open data would also create accountability. Approximately $700 billion in revenue is lost each year due to tax evasion. Developing countries are impacted the most, suffering approximately three times the losses of OECD countries. Open data would contribute to economic prosperity by increasing the taxation revenue received by the government, which can in turn be allocated efficiently through fiscal expenditure. Further, by shedding light on the way corporations operate, open data may also improve business productivity, as companies will become more easily held accountable to their financial performance. It is estimated that open data could contribute up to $16 billion per annum to the Australian economy by improving transparency and minimising secret profits. Companies that act ethically and in accordance with the law are rewarded by more consumers who respect and endorse good practice.
Against
W
Shivani Gosai
hile open data may increase transparency, reduce corruption and generally improve everyone’s lives, Tim Berners-Lee, the inventor of the Internet, contends that it is also “a great way to put power in the hands of citizens”. Although this may theoretically seem an effective strategy to combat issues such as tax evasion, the adverse effects are nevertheless expansive. Critical concerns about privacy and the tampering of material have emerged, suggesting that open data may create more problems than resolve existing ones. As such, open data is not necessarily a solution to address international criminal activity such as tax evasion. Privacy is an internationally recognised fundamental right which has been embedded in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which Australia is a signatory. They ensure that control over information is exercised by limiting accessibility, and how they can be used to protect individuals and corporations from intrusive information collection. Although international law is soft in nature it is still a persuasive mechanism that solidifies international standards and obligations. Therefore, open data is an encroachment of fundamental rights through the publication of private tax activity. Nonetheless, supporters of open data make a valid point regarding the leak of the Panama Papers and the magnitude of tax avoidance and evasion. Approximately, one-third of the world’s wealth do reside in offshore tax havens however, making
this information publicly available has not proven to be effective. Instead, it creates further distrust and encourages alternative corruptive practices. At least 16 nations have already integrated major open data initiatives such as the US which posted nearly 400,000 data sets at data.gov that are accessible by the public. Similarly, the Bhoomi Project introduced by the Indian and Karnataka Governments aimed to digitise land titles and facilitate easier access to information. However, this initiative proved to be an opportunity for large, wealthy corporations to hunt for errors in documents, exploit gaps in records and seek targets for bribery. Evidently, examples of open data initiatives have not been effective in addressing tax evasion offences with perpetrators benefitting from this unintentional opportunity. Jonathan Gray, the Director of Policy and Research at Open Knowledge, refers to the UK Open Data Charter in 2013, which suggests that tax information should be available to onshore law enforcement and tax administration bodies and other relevant intelligence units to monitor and police the tax activities of large corporations. This measure allows for independent monitoring bodies to exercise their powers and discretion to effectively catch perpetrators and punish them accordingly. Tax evasion is no doubt an international issue, which thrives on secrecy however, open data is not a suitable or effective remedy to address it. It works contrary to the objectives, creating issues regarding privacy, misconstruction of information and incentivises perpetrators to find new ways to offend. Tax evasion is a problem but open data is not the solution.
Edition 3, 2016 | 17
STAY TRUE.
18 | The Brief
Staying true to your direction is what defines Clayton Utz. We’ve built a culture that’s unlike any other law firm, but don’t just take our word for it. A good lawyer needs compelling evidence so meet our people and judge for yourself. claytonutz.com/graduates
Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.
Sorry Isn’t Good Enough Olivia James
E
very May 26 the Australian Prime Minister stands on a podium and apologises for how Australia’s settlers wronged the nation’s First People. But following the recent announcement of a Royal Commission into the detention of children and the child protection system in the Northern Territory and the deaths of Indigenous Australians in custody saturating the news, is this apology hollow? Sorry Day is meant to represent more than just acknowledgement; it’s meant to stand as a testament of our commitment to change. Education is considered by many to be a universal right. A good education lays the foundation for a successful, healthy and fulfilling future. But is the system currently in place allowing Indigenous Australians to access higher education? Or is our government’s promise to not repeat past mistakes falling short? The narrative about scholarships for Indigenous Australians is marred with a preconception that these scholarships are obtained with great ease, regardless of merit. While there are scholarships specifically for Indigenous Australians, a cursory glance at
the University of Sydney scholarship quotas infers a different story: 13 scholarships are allocated to Indigenous students yet over 700 scholarships will be available for other students in 2017. This means that only 1.8 percent of scholarships are reserved for those of Indigenous background. Among these 700 scholarships, residential colleges dominate funds available for Indigenous students. St Paul’s offers 50 scholarships for boarders, while Sancta Sophia House will be offering 21 scholarships in 2017. St Paul’s College also offers a minimum of 50 scholarships to their boarders, however multiple scholarships for academic or athletic achievement are often provided. As such, over an estimated third of St Paul’s boarders receive scholarships. Although nothing is stopping Indigenous students from applying for non-exclusive scholarships, a variety of obstacles exist. Reports suggest that young Aboriginal Australians face a litany of educational and financial roadblocks, unlike the remainder of the Australian community. The 2012 Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People found that Indigenous students >> Edition 3, 2016 | 19
only made up 0.7 percent of the nationwide university population. The report goes on to outline that Indigenous completion rates are similarly bleak, with only 32.4 percent of students graduating. Unfortunately, despite the report’s aim to increase Indigenous attendance and completion of higher education, the most recent statistics show no improvement. Indigenous enrolment has also plateaued, with Aboriginal and Torres Strait Islander students comprising roughly one percent of the student body, and completion rates have worsened with only 28 percent of these students going on to graduate. So why is there such an underrepresentation of Indigenous Australians at Australian universities? Access, which exclusive scholarships attempt to offer, is a main issue. The proportion of Indigenous students at various universities over Australia is wildly disproportionate to the total student population of these universities. UTS for instance, has a total student body of 37,638 with only 252 Indigenous students, which comprises 0.67 percent of the entire university. UTS isn’t an anomaly. The University of Sydney’s Indigenous student population also only makes up 0.67 percent of total enrolments.
20 | The Brief
Macquarie University itself is nearly identical, with 0.38 percent of the student body being of Aboriginal or Torres Strait Islander descent. There are a few contributing factors causing this enormous under-representation. Kyol Blakeney, an Aboriginal student at the University of Sydney identified the connection to the land as a potential roadblock: “The connection to land is very important. For a lot of young people in Aboriginal communities it’s quite a big step to move away from home”. Blakeney’s statement is supported by the disparity of Indigenous enrolment between regional and metropolitan universities. This is worsened by a lack of affordability of residential options for Indigenous students. Many residential colleges require a great deal of compensation before students even start classes. St Andrew’s College at Sydney University requires a $100 application fee followed by an additional $2,000 acceptance fee payable following an interview. The Orientation week accommodation fee is $519 and a $1,000 bond is held as security for the academic year, with $395 of this going to the alumni foundation of the College and $105 of this donated on the student’s behalf to the St Andrew’s Foundation. Finally, the first
semester’s fee of $13,053 has been removed. Finally, “Indigenous is to be paid before moving textbooks, stationery and enrolment has also into the College. So before a general entertainment costs plateaued, with student even starts class they also need to be considered. are expected to pay just shy of Altogether, students living Aboriginal and $14,000 to live at the College. Torres Strait Islander off-campus are expected to With students expected spend almost $1,500 a week. to pay up to roughly $30,000 students comprising So with students likely for accommodation a year, roughly one percent to be receiving roughly a not to mention general living quarter of the funds they of the student costs and actual tuition, it’s need to live at or near a body…” clear why Indigenous students metropolitan university, many feel as though metropolitan will be employed in casual or universities are inaccessible. Further, with part-time work. According to the Australian over half of Indigenous Australian households’ Bureau of Statistics, part-time employees earning under $1250 a week it is unlikely that have a median weekly wage of around $500. any assistance would be provided by their When combining the fortnightly funds offered family. In fact, only one percent of Indigenous by ABStudy to the average part-time wage, Australian households earn over $2000 a students still fall short of the funds necessary week. The government has attempted to to attend universities away from home. alleviate some of this burden through their Consequently, living on-campus is a costly ABStudy program by supplying a governmental and unrealistic option. allowance to cover costs involved with higher Similarly, living off-campus is likely to education and tertiary studies. The allowance pose the same financial burden. Should given is broadly divided into two categories, greater lengths be taken to address this dependent and independent, not unlike the institutionalised inequality? By year one in Youth Allowance benefit. primary school, 60 percent of Indigenous However, is ABStudy enough to combat students are academically behind their nonthe systematic inequality of education? The Indigenous counterparts. So with only 10 maximum amount of money made available percent of Indigenous Australians completing to independent students, under the age of 22, Year 12, what can be done? The University and away from home is a fortnightly payment of Melbourne launched a pathway program of $433.20. If students are between 22 and in 2015 to encourage Indigenous students to 59 years old this increases to a maximum of participate in the STEM fields. Foundations $527.60 fortnightly. Postgraduate students like the Aurora Project offer a variety of are eligible to receive a maximum of $1,005.60 programs and scholarships such as the Charlie fortnightly. However, university housing costs Perkins Trust, which has had great success can range anywhere from $200 to $600 encouraging overseas postgraduate study. a week. In addition, one person’s weekly It is clear that the government, despite grocery bills are estimated to cost between some attempts, has not allocated enough $100 and $130 a week. Add in Internet fees, resources to bridge the gap. As a result, the which start at $12.50 a week, and phone plans, burden now lies with private institutions and which can range from $7.50 for a SIM card the public. It can be argued that while higher up to $80 and beyond if selecting a postpaid education is not necessarily a right, it cannot plan. Further, anyone off campus is also be denied that access to higher education is required to pay for utilities as well as water of great benefit to Indigenous Australians. To and electricity, which can total around $100 annually apologise for the past is meaningless a week. Travel costs, even with a concession if nothing is being done to assure a brighter OPAL card, are likely to be upwards of $30 future. Without a doubt, our yearly apology is a week now that the ‘free rides’ benefit just not cutting it. Edition 3, 2016 | 21
The New Era of Space Law Dusan Djukic
T
he fascination with the cosmos remains one of the most distinct features of humanity. With unprecedented growth in technology, the stars are now closer in reach but the law is yet to catch up. The law has always been behind technological advancement but never to such an extent regarding current space law. Both our international and national law are more of a reflection of the 1960s great Space Race instead of the globalised world we live in today. Therefore, it is important to explore how space law developed and whether it is adequate to deal with the growing space tourism industry that is changing the landscape of legal liability and regulation. Space Law Regulation Mankind’s habit of polluting Earth has now extended into space. Currently, there are over half a million items of space junk, mostly debris from spacecrafts and equipment, floating around. However, extraterritorial pollution is not prioritised by space law regulation. The main source of space law is rooted in international law, particularly the Outer Space Treaty of 1967 (OST). The OST was developed during the great Space Race between the former USSR and the US. The instrument was not created for the need to regulate peaceful use, but more for the need to prohibit military uses on celestial bodies. It is why Article IV of the OST forbids the placement of any weapons in orbit, ensuring that all outer space activities be carried out for the benefit of mankind. For the most part, nation states are working collectively towards achieving this benefit through multinational projects, which allow the sharing of financial burdens and risk while creating massive growth in space technology. The Multinational 22 | The Brief
Space-based Imaging System project by Belgium, Germany, Greece, France, Italy, Spain and Poland is an example. The geopolitical climate where space activities take place has changed dramatically since the Space Race started in 1955, with many different nation states now having the technology and ability to explore extraterritorial spaces. The OST was built around peace and security, but maintaining security in a world with a wider set of actors is becoming increasingly difficult. An example is Iran and North Korea’s entry into various space activities where both countries have capitalised on the OST guarantee of “free access to all countries”, generating concern over misuse. This is troubling because it allows the very same laws that were put in place to ensure peace and security to be abused to such an extent that it creates chaos within space law. Critics of the OST have argued that the treaty is a ‘soft law’ that has tangible influence and instead inhibits the potential to exploit and explore outer space. A major roadblock to space development is the lack of property rights associated with celestial bodies and objects, which is engraved within the socialist mindset of the OST agreement. Property rights for private entities would be more economically favourable to commercial exploration as it would ensure the investments of companies seeking to exploit resources on celestial bodies. However, a stronger argument for the OST is that its deliberate non-binding nature on states allows the maximisation of goals while minimising risk. As a result, soft law agreements are easier to achieve, and most of the articles within the OST have a low level of enforceability to allow open communication between nation states in order to avoid conflicts. A second reason why the OST should not be removed is due to state reluctance to adopt or modify existing space
“The future space tourism industry envisions a complex issue of passenger safety as a major liability issue.”
law. The fact that state sovereignty is vital in international law means that states will always be reluctant to sign new agreements, which is why the OST should only be modified to ensure state cooperation. The OST’s broader objective to benefit mankind was achieved in a time when the world was on the brink of a potential space war, and yet, the OST was able to garner signatories of major powers. While the OST may not be perfect, it nevertheless has developed into an effective treaty that uses non-coercive measures to achieve unity in the vast uncertainty of space law. Space Tourism and Liability Space tourism is a growing industry in the world with many companies now keen to become more involved in space activities. However, the law needs to be created and understood before space tourism starts operating on a global scale. Orbital spacecrafts may cross multiple borders thereby making the problem of sovereignty regime in space extremely complicated. The OST was not designed for the modern world and cannot accommodate a booming private spaceflight industry and the emergence of the space tourism market. In 2005, nearly a third of orbital launches were performed by commercial launch companies instead of nation states. The issue of liability resulting from space objects is explored in the case of Kosmos 954, a Russian satellite that scattered radioactive debris over northern Canada. Luckily, the Space Liability Convention 1972 holds that a launching state is strictly liable for damage caused by its space objects. The Canadian Government billed the USSR who eventually paid a large proportion for the damages. The future space tourism industry envisions a complex issue of passenger safety as a major liability issue. According
to the Montreal Convention 1999, in case of passenger injury or death, the convention provides that nation states should have unlimited liability of carriers. There are two issues with this Convention. The first has to do with the triumph of national laws over signed but not ratified international obligations. The US is still the only country who tries to enact space tourism laws, but in their approach, they have introduced liability waivers for space tourism corporations. Thus, it is likely that space tourism operators can completely avoid liability to passengers who attempt the risky task of exploring space. The second issue has to do with how ‘passengers’ are defined within space tourism. The main question is whether ‘passengers’ fall under the category of astronauts or should be granted a similar status. If they were to gain similar status to that of an astronaut they would be afforded protection under international law, as all nation states who sign the OST would be obliged to help in rescue efforts of space tourism passengers. It is only natural that space law continues to develop with the onset of a space tourism industry. The vastness and eclecticism of space will define how international and domestic law governs this enigmatic industry. Current space law regulation, in particular the OST, is an important source of space law. But as it currently stands, it does not comprehensively address the issues relating to cosmic expeditions on a commercial scale. There needs to be better international and national regulation to ensure smooth and effective policy that reflects our modern era. Technology has always been one step ahead of legislation on both international and domestic platforms. Nevertheless, in these circumstances, perhaps it is the law that facilitates the journey in the final frontier. Edition 3, 2016 | 23
Social Justice Corner
Discussing the Role of Technology ď € Rhiannon Bell
A
t a recent hackathon, barrister Philippe Doyle-Gray from 8 Wentworth Chambers recounted a story about a client. A middle class man spent four years trying to sue three law practices for advice that led to his financial ruin. The man sold the family home and was nearly declared bankrupt. During discovery, one firm sought 3000 pages of documents. Copied and printed for all parties, this set the client back $11,000. Not long after, they requested 7000 pages of documents. This time, the barrister asked for the documents to be scanned, not printed. The cost? $990. He then asked us: “Should anyone be denied access to justice because they cannot afford the cost of photocopying?�. Technology has the capacity to reduce social inequality; we just have to embrace it. The significance of technology There are several organisations and people that may benefit from technological
24 | The Brief
developments. For example, the Refugee Advice and Casework Service (RACS) provides independent, free, specialist advice for refugees and asylum seekers. They also contribute towards community education and offer volunteer positions for students who are passionate about human rights. Broadly speaking, they seek to ensure equal and fair representation. However like many other organisations, RACS is experiencing debilitating funding cuts, which reduces their capacity in assisting their clients. The implication is that there are a minimum of 24,000 people seeking asylum who will do so without legal assistance. Similarly, Legal Aid is only available in certain jurisdictions and for people with a reasonable prospect of success who satisfy a means test. Technology has the potential to reduce the costs of these organisations so that they can assist more people or otherwise to make law more accessible to litigants who do not qualify for these services.
What is out there? There are many promising developments. For example, Lord Dyson who is Master of the Rolls (the head of the civil judicature in England and Wales) is a prominent figure pushing for the development of an internetbased means of resolving disputes within the next two years. This would continue to build on eBay’s innovative online dispute resolution mechanism: if a user finds that the goods did not match a description, failed to arrive, or were not paid for, they can access a free online service to resolve the complaint. This may remove the need to resort to court, which can be expensive and potentially complex if the users are located in different jurisdictions. The use of artificial intelligence (AI) in various areas also holds significant promise for the future. Technologies such as ROSS use AI to answer questions and reduce the costs of research. Recently, a Dutch team has created an AI platform called ‘Rechtwijzer’, which has the capacity to learn, remember, and make suggestions regarding the appropriate course of action. It aims to empower people by putting them first, and it draws on the strengths of interest-based dispute resolution, as opposed to adhering to positional approaches. This is an important means of empowering people to avoid disputes or otherwise reduce the costs of dealing with them, should they arise.
Addressing barriers to change Despite the promise of these technologies, the legal industry has historically been very resistant to implementation. Nevertheless, there is hope. The NSW Law Society is currently conducting a Commission of Inquiry entitled ‘The Future of Law and Innovation in the Profession’ to examine how lawyers can coexist with new disruptive technologies, including the demands of various stakeholders. Furthermore, several law firms are beginning to experiment with new technologies. Gilbert + Tobin and King & Wood Mallesons are currently collaborating with Neota Logic, a company specialising in AI technologies. A team at King & Wood Mallesons has also developed a way to include lawyers in ‘smart contracts’, contracts where some terms can be executed automatically by software. Given that these firms provide pro bono assistance to organisations like RACS, AI technology and resources may become more accessible. Conclusion Embracing technology and adopting an interdisciplinary approach is the best means of ensuring the long-term viability of the legal profession. Applying AI and online dispute resolution technologies to social justice problems may be an important step in reducing inequality.
ANU Legal Workshop National Leaders in Professional Legal Training and Education Graduate Diploma of Legal Practice (GDLP)
> Multiple start dates > National delivery
Apply online at: legalworkshop.law.anu.edu.au
> Flexible options > Innovative online learning Edition 3, 2016 | 25 CRICOS# 00120C
Is Australia Being Smart at Funding New Infrastructure? Guillermo Umaña-Restrepo
A
t the April 2016 Smart Cities Summit in Melbourne, Prime Minister Malcolm Turnbull declared that one dollar wellspent in planning can save hundreds, if not thousands, of dollars in poor investment. The federal government’s renewed emphasis on urban planning, following the release of the Smart Cities Plan, has brought the topic back into the federal policy agenda. Many supporters view this as a game changer, considering how urban issues were not a priority of past governments. As a result, the Smart Cities plan is an opportunity to fuel infrastructure investment in Australia through innovative funding models. With 90 percent of Australia’s population living in cities, it is clear that issues surrounding urban development should be at the forefront of Australia’s political debate. However, urban policy has traditionally been under the jurisdiction of state and local governments, with the federal government’s involvement limited to the funding of large-scale projects. Hence, the success of a federal platform on cities relies on how well it can be translated into policy at state and local levels. An important aspect of the Smart Cities Plan is the call to use ‘value capture’ (sometimes called value sharing) to accelerate infrastructure investment. The idea behind value capture is simple. The additional value that an infrastructure project generates on surrounding properties is collected by the government to fund the delivery of the project. This is seen as a more equitable alternative to broad-based taxes, which affect people who do not financially benefit from the project. New train lines are a good example of the way the mechanism works. A train line creates a positive effect on the land value of the properties around its new train stations. The 26 | The Brief
financial benefits generated by the increased land values are then shared between the landowner (who can sell their property at a higher price) and the government (whose action enabled the increased value). Although value capture is not a tax, the political costs of introducing a value sharing mechanism can be high. There is a perception that value capture discourages property developers from building new homes and that it has a negative effect on housing affordability. However, value capture mechanisms can be designed to target non-residential developments. In fact, value capture could have a positive effect on housing affordability if affordable housing for low income groups is included in new developments (for example, through publicprivate partnerships). Stakeholder engagement and community consultation are crucial for consensus and certainty about the long-term benefits and contributions expected from value capture. It is also essential that the value capture principle is differentiated from mandatory tax payments. This would ensure that the public is thoroughly informed and educated on urban development proposals. Besides the politics, a number of issues must be addressed for value capture to succeed in Australia. Calculating the forecasted value increase resulting from an infrastructure project is difficult. Sampling errors in land prices, separating the effects of transport infrastructure from other factors and determining the shape of the beneficiary catchment are other challenges surrounding the mechanism. Often, land prices rise in anticipation of infrastructure projects. To ensure the equitable distribution of charges, there should be a financial connection established between the benefits and beneficiaries.
1. New train station increases land value in the area 2. Financial benefits to be partially captured by authority 3. Captured finance to fund future infrastructure projects Example of a land value capture mechanism
What constitutes smart infrastructure? It is proven that new roads generate additional traffic through a process called induced demand. In the short-term, a new road would enable development and generate an increase in land values. However, in the long-run the placement of a road would lead to decreasing values, as traffic becomes heavier, and the areas surrounding the new road become less desirable. Many cities in Canada, the UK and China have demonstrated that investment in the right kind of public transport may generate increasing values well into the future. The golden example of mass-transit value capture is Hong Kong’s MRT, which has attributed its success to a model in which the delivery of railway lines is paired up with development around new train stations. Other types of smart infrastructure include community hubs, 21st century libraries and schools and resilient open space and conservation areas. An Australian value capture program needs to respond to Commonwealth, state and local taxation and planning policies. Value capture laws must remain projectspecific and ensure that value capture does not become a general income source for state and local governments. The Urban Taskforce has recently announced that a number of metropolitan Sydney councils are developing value capture policies as a general source of income. This is against the NSW Department of Planning’s 2005 practice note which
states that planning agreements should never be conceived as a form of taxation on development. Parramatta Council has been at the centre of the debate for proposing a Density Bonus Incentive Scheme. Under this scheme, developers could voluntarily access additional floor space if they are prepared to contribute to the additional infrastructure demands this increase would generate. Some have argued that this is a blanket approach to secure income for Council and that it can be seen as a local tax for developers. The legality of the Density Bonus Scheme is under debate. However, local funding of infrastructure should not be deterred by a narrow interpretation of the value capture concept. The call from the federal government in the Smart Cities Plan was to find innovative ways to fund much needed infrastructure projects across cities in Australia. All levels of government can do more to realise the opportunity that value capture creates. This calls for better coordination across governments and genuine and robust stakeholder consultation. Whether or not Australia can tap into smarter infrastructure funding options depends on the ability of all levels of government. This requires cooperation with each other to develop a legal framework that provides certainty to developers, encourages housing affordability and is founded on sustainable development.
Edition 3, 2016 | 27
The Gender Gap:
Changing the Mindset Angela Metri
T
he two core drivers of sustainable, long-term economic growth are people and their talents. But despite landmark cases which have critiqued the archaic mindset about gender roles, such as Hickie v Hunt and Hunt (in which the plaintiff was demoted after returning from maternity leave), many women still face the dreaded glass ceiling in the workplace. Improvement requires creating a culture of change through education, cultivating awareness and creating initiatives by those very institutions that have been perpetuating the mindset. The low percentage of women in leadership positions is enough to demonstrate the staggeringly slow pace of change in gender equality in Australia. As of January 2016, the Workplace Gender Equality Agency found that only 23.4 percent of directors in the ASX 200 are women. In addition, it is discouraging to see female graduates earning less than male graduates. Barriers to Progression Stereotypes and ‘Merit’: Rather than taking into account individual merit, skills or competence, current workplace relations are informed by preconceived notions which put women at a disadvantage compared to men, some of which are considered below. Even affirmative action as ‘preferential treatment’ serves the 28 | The Brief
interests of those who profit under current social arrangements. Issue of Over-Segmentation and Special Measures: Programs aimed at increasing men’s participation in the workplace are not genderspecific. Creating these programs, only serves to deepen the rift rather than close it because they posit women as having ‘special needs’. The Motherhood Penalty: Leaving children without close contact with parents is considered an issue as a child’s early years is critical in their development. Strategies could be framed around working while taking care of the child (whichever parent chooses to take leave), as well as strategies to incorporate flexible hours or childcare solutions once the parent returns to work. It is generally looked down upon if men take leave, so women not only bear the physical cost of pregnancy, childbirth, and nursing, but are stigmatised as uncommitted and incompetent. On the flipside, fathers who excel in the same time-consuming careers are labelled ‘good providers’. Billable Hours: Wanting flexibility in the workplace is viewed with disdain in a corporate environment, leading to increased pressure to work longer hours. However, this culture is beginning to change in some progressive law firms who have an equal male-female partnership and do not use timesheets. This takes the pressure off unrealistic requirements, and is a positive move towards a supportive workplace environment.
The Economic Spectrum With a growing female talent pool coming out of schools and universities, and with more consumer power in the hands of women, companies who do not foster a positive environment for women can fall behind. As they begin to take up half of entry-level positions, it is a loss for companies if these highly skilled women are forced to choose between work and family at later stages of their career. Firms will therefore benefit in the long-run if they address gender issues. Practical steps to be taken Sharing Responsibilities: A study in the US showed that fathers who took two or more weeks off after the birth of their child were significantly more likely to help with feeding, bathing, ‘diapering’ and other care later on, equalising household and breadwinning duties between couples. This shows that assisting fathers to take parental leave can recast gender roles, making fathers much more likely to contribute to childcare and domestic work and give their partners more of an opportunity to invest in their careers. Governments: While governments have an important role to play in creating policies that provide women and men with equal access to opportunities, companies must also create workplaces where the best talent can flourish. Regular reports would provide a comprehensive set of data and a clear method for tracking gaps on critical indicators so that local communities may set priorities within their own contexts. Education: A progressive mindset regarding gender equality can be instilled in all students from a young age. Without that education, stagnancy prevails. Educating girls separately from boys with affirmative action programs may benefit them momentarily – but a separate gendered mindset would prevail over the long term, and that is precisely what must be eliminated. Being employed based on ‘merit’ starts by having the same opportunities and exposure from a younger age, so educating children together will ground the concept of equality from a younger age.
How has progress been achieved? ‘Discarding the “One Size Fits All” Approach: Institutions have significant power to redress these issues and effect significant change – legislative measures cannot cater to individual needs, nor can special measures. As an example of a progressive workplace, Marque Lawyers recognises that each family is different and each set of requirements are different. The firm has instituted individual agreements based on trust. The firm’s positive stance on gender equality is shown by the fact that all six female lawyers who have taken parental leave have returned to the firm and are all partners. To build on this progress, however, firms can encourage men to do the same by taking parental leave, as special initiatives may not be enough to change the mindset that women are the primary caregivers. Onus of Proof: Although it is still difficult to obtain a clear answer as to the success of sex discrimination claims, an instrument such as the Sex Discrimination Act 1984 (Cth) offers a framework for setting standards. There have been numerous discussions regarding the reversal of the onus of proof onto the defendant in proceedings. Looking to the Future As former treasurer of Woolworths Edith van Dommelan notes, women need to be more assertive about their career hopes and ambitions, because if “one does not ask, one will not receive”. There is increasingly less to be gained by law firms which maintain the view that law is the special and exclusive province of workaholic men. The system and the initiatives discussed above will only achieve change if women have the courage and commitment to participate. That means a willingness to compete for such positions with the consequence of possible rejection. If women are willing to compete - to put themselves forward and convince fair minded men - they can turn glass ceilings into mere ‘wisps of gossamer’.
Edition 3, 2016 | 29
summerclerks
aspire. what are your hopes and ambitions for the future? contribute. how will you make a difference to HDY, our profession and our community? thrive. what do you need to reach your full potential? Who are we?
What’s it like to be a summer clerk at HDY?
Henry Davis York is an independent Australian law firm with talented lawyers and other professionals. Our clients are primarily from the financial services and government sectors. We are also proud to work alongside an impressive list of clients from other sectors to achieve their objectives. We do this in a way that clients and staff alike enjoy the HDY experience and choose us as their preferred legal services provider. Our clients include the big four Australian banks, global investment banks, insolvency & accounting firms, fund managers, property developers, manufacturing companies, regulatory bodies and government agencies.
OUR PROGRAM
WHAT THIS MEANS FOR YOU
Comprehensive orientation program during which you will attend training sessions and meet the people you will be working with.
You will be ready to hit the ground running from day one and be given the opportunity to contribute and make a difference.
Rotations through 3 practice groups of your choice.
You will enjoy hands-on experience in the areas of law most relevant to helping you with whatever you aspire to achieve.
Supervision, advice, training & feedback from partners, senior associates and a mentor.
You will be well supported and developed throughout your time with HDY to help you thrive.
What are we looking for in a summer clerk?
Why should you apply for our program? We understand what you are looking for in a summer clerk program. We listen to what our summer clerks tell us about their experience with us and how we can build on it each year. This means we know what’s most important to you and our program delivers this for you:
■
Banking & Finance
■
Construction & Major Projects
■
Corporate/ M&A
The quality of our people is the key to our success. Recruiting the right people at every level is therefore a critical part of our strategy. Our summer clerks become part of the HDY team and contribute to our growth and culture from day one. So, they must be:
■
Dispute Resolution
■
■
■
Government Inquiries, Commissions & Inquests
Self-driven, highly motivated and eager to develop and take on responsibility.
Exposure to high quality, meaningful work.
■
Energised by being part of a team and focused on “we” rather than “I”.
■
The opportunity to contribute and take on responsibility as part of a team.
■
Respectful of others and respected by others.
■
A supportive, collaborative environment where your contribution matters and which fosters your development.
■
The chance to work with motivated and talented lawyers and have fun too.
We offer our clients a wide range of legal services from the following practice areas:
■
Insurance
■
Intellectual Property
■
Investments and Financial Services
■
Property, Environment & Planning
■
Restructuring & Insolvency
■
Tax
■
Technology
■
Workplace Relations & Safety
a.c.t now 30 | The Brief
A successful candidate will have a solid academic record, some relevant work experience, demonstrated leadership skills and a keen interest in commercial law.
visit our website to apply and start your career with HDY 15 June – 17 July 2016 www.hdy.com.au/summerclerks
aspire. contribute. thrive.
summerclerks
aspire. what are your hopes and ambitions for the future? contribute. how will you make a difference to HDY, our profession and our community? thrive. what do you need to reach your full potential?
a.c.t now
visit our website to apply and start your career with HDY 15 June – 17 July 2016 www.hdy.com.au/summerclerks Edition 3, 2016 | 31
INTERVIEW
Avenues of Your Law Degree Maddison Passarelli
While the current job market may be fiercely competitive, having a law degree under your belt still offers diverse opportunities. Providing some insights into his career, 2009 Macquarie Law alumnus and past MULS President, MATTHEW TRACEY took the time to answer some of our questions. Matthew currently works at Palantir Technologies, a software and services company from Silicon Valley, California with offices located worldwide.
Q1: Describe your typical day as a ‘Legal Ninja’ at Palantir Technologies. Palantir Technologies started working closely with the US intelligence community to build counter-terrorism software platforms in the wake of the September 11 attacks. Since that time, we’ve expanded our global impact to include solving problems related to law enforcement, human trafficking, insider trading, cyber-attacks, fraud, resettling Syrian refugees and drug discovery and development.
32 | The Brief
As a Legal Ninja, I was originally hired to work on our legal, strategic and commercial efforts in the Asia-Pacific region as the sole legal counsel. A typical day would include drafting and negotiating customer deals, advising leadership on corporate governance, securities and taxation issues, joining my commercial counterparts at a customer facility to meet with partners on the ground, and interviewing candidates who want to join Palantir.
Q2: How has working in New York differed from working in Sydney? Do you foresee your current job taking you to different parts of the world? Much has been written about the ‘energy’ that embodies New York. While it is a phenomenal city to live and work in, I do miss the sandy shores of Sydney every now and then. Professionally, both Sydney and New York are very vibrant cities. That means that in either place you’ll need to learn how to interact with a wide variety of people and personalities. Australians have a great reputation in New York – we’re typically viewed as low-stress, low-ego and hard workers. A good thing to remember is that the practise of law is much
more globally unified than any Bar association would have you believe. Ultimately, lawyers solve problems and jurisdictional issues aside, the answers to those problems are found through careful analysis, creative thinking and concise communication – all qualities which transcend the knowledge of any particular legal system. For anyone that is considering working overseas, I would encourage it. You’ll build upon the things you already know and experience the enormity of the matters that reside in the Empire City.
Q3: How were you able to transition from law school to a legal career? I worked at Allens as a summer clerk, then as a paralegal, before commencing as a graduate lawyer in the Technology, Media & Telecommunications group. The biggest realisation I had as a junior lawyer was that the study of law and the practise of law exist in perpendicular dimensions. Specifically, law is studied subject-by-subject. It is compartmentalised vertically by a particular technical aspect of law, such as corporations law, taxation law, contract law. On the other hand, the practise of law exists in a horizontal
plane where the identity of the client is the primary taxonomy, and their issues may span across many ‘subject matters’. For example, you may be representing a major Australian company who is undertaking a merger activity. Your practise may need to have an appreciation of various subjects. The best lawyers I worked with will put the desired outcome front and centre and work towards that outcome – regardless of the subject matters it drew them into.
Q4: What has been one of the biggest challenges for you during your career? Transitioning from a law firm to in-house practise removed the safety net, especially as the only lawyer responsible for a large region. Inside a law firm, it is not uncommon for many lawyers to work on a particular issue. Working well in a team environment is essential, and it also means that anything you write will probably be read (and revised) by many people before it goes to a client. Once you’re by yourself, you need to be right in your analysis and advice the first time and every time. Your clients will sometimes be sitting
next to you and will ask you questions on the spot or pull you into meetings with customers. I had to learn a few things (quickly): first, learn everything that they’re doing before they tell you about it and second, develop your own understanding of where you might stand on the issues, if asked. Once the safety net is removed, and you’re playing with ‘live ammo’, you’ll improve as a lawyer on a trajectory that is hard to replicate in a more structured environment. >>
Edition 3, 2016 | 33
Q5: In law school, did you know what you wanted to do when you finished your degree? No idea. Nobody in my family was a lawyer, and I didn’t know many lawyers at the time. Honestly, I didn’t really understand all the things that a lawyer did when I started university. But, I knew what interested me. I was always a bit of a nerd and loved learning about technology law, media law and intellectual property. Thankfully, I was able to keep practising these in the TMT group at Allens. Something struck me the other day, and I think I should mention it. Do you recall anyone telling during the HSC that it didn’t matter what marks you got because there was always another way into what you want to do? That is also true of the practise of law. It doesn’t matter what jobs you are offered, or
not offered, during or after your law degree. There is no such thing as a ‘good start’ or a ‘great opportunity’. All that matters is finding what you really enjoy doing and start doing it, in whatever form. Any particular job, law firm, practice group is just a container to capture your actual output – it should not be confused with what you produce as a human. So, be wary of thinking about life after law school in terms of what job you want or what firm you want to work out. Instead, consider what activities and subjects interest you, and then find a place to pay you to do them, or start doing them for free. Either way, that’s more likely bring you satisfaction than anything else.
Q6: What influenced your interests in media, technology and the law? Since I was a young boy, I used to love breaking, and then fixing, our family computer – the fixing was primarily motivated by the fear that my parents might find out what I had done. From that point, my interests diversified to include the role of speech in modern society. At Macquarie, I quickly discovered a passion for operating in the space created by the latency of law as compared to technology. In that gap, you’re committed to thinking of the law as it should be – this is congruent with the ideological genesis of the Macquarie Law School.
34 | The Brief
Once practising in the tech space at Allens, I learnt that my most effective colleagues were engineers first, and lawyers second. In order to advise on lawful interception, radiofrequency spectrum licensing and source code, you had to understand those issues from a technical perspective before considering the legal aspects. I liked talking to clients who had the technical expertise, simply because I was fascinated by the work they were doing.
Q7: Would you say a successful career in law boils down to good grades and extracurricular endeavours? No. I wouldn’t even say that a successful university experience can be expressed by the height of your GPA or the density of your resume. It may impress some recruiters, but that’s not the reason you’re here. To be effective as a lawyer you must be good at solving problems. None of the prerequisites for this skillset can be entirely accumulated by trying to appear well-rounded. The best lawyers I know possess intellectual horsepower, introspection, a critical eye, high emotional intelligence and a sense of cognitive dynamism that allows them to see the whole picture. Remember that the GPA
you have and the extracurricular endeavours you pursue are only outcomes, not skills in and of themselves. Instead, use your time here to make yourself uncomfortable, consider what you’re awful at (and work on it), experiment, debate, sing, dance, read and wonder. If those pursuits lead to a sparkling resume, all you’ve done is impress the person that may care about such things. More broadly, search for the things that will make your smarter, more critical and more thoughtful about the world around you as they’re more powerful armaments in your legal career than simply having an expansive resume.
Q8: What are some highlights from your time at Macquarie University? Firstly, having Nicole Graham as a Property Law lecturer and tutor in third year. I remember one of the early weeks when it was clear that while a few had done the required reading, none were prepared to debate concepts of property and law. Nicole, in her wonderful honesty, was forthright in her criticisms of the class but did so in a way to made all of us want to be better. I warmly remember Nicole as raising and keeping the bar high.
Second, was competing with my best mate at Macquarie, Patrick Loffel, in the MULS and Australian Law Students Association negotiation competition. We were already good mates and being able to work together in such a hands-on manner was not only great fun, but taught me a lot about how to present and close a discussion with another person.
Q9: Do you have any advice for law students struggling to find their own avenue? The law is not exclusively controlled by employers. If you want to be a certain kind of lawyer but no firm wants to hire you, or the firm that does doesn’t have enough of it for you, start doing it anyway. Create something. I remember being a junior lawyer and being really interested in applied technology law (that is, the more technically inclined type of tech law work such as radio communications and cyber security). But, this work was few and far between. Instead, I was faced with corporate due diligence and merger review activities that didn’t really interest me. So, I started a communications, media and technology law blog so I could write about
current issues I cared about even though I wasn’t able to work on them as much as I would have liked. The blog was picked up by journalists at ABC News who would ask me for background knowledge on particular issues, by the US Library of Congress as a source of authority on some other issues, but most importantly, allowed me to create something new. So, think about what you enjoy doing, and just start doing it. Write, speak, question, attend – just generally engage. If you like it, you’ll probably be good at it, and if you’re good at it, someone will pay you to do it. Find value first, because the money will come later.
Edition 3, 2016 | 35
Inspiration for Law School Wondered what LAWS561 and LAWS564 are all about? Final year students Brendan Lord and Karina Hawtrey kindly provided us with a brief insight into their research projects.
Topic 1
Topic 2
The Elephant in the Room that Never Forgets: The Internet, Privacy, and the Right to be Forgotten in the Digital World
Reclaim Australia? The ‘Sovereign Yidindji Government’ and Challenges to Australian sovereignty by Indigenous people
Brendan Lord
Karina Hawtrey
T
T
he Internet is an unheralded development in the retention of knowledge and information. The right to be forgotten recently emerged in Europe to address the inequities resulting from a society of perfect memory; where the default has shifted from forgetting to remembering. It is argued that an individual should not be perpetually tied to an action of the past that may not maintain any relevance to the present, as it seems to only stigmatise and burden that individual’s self-determinative abilities. However, providing an individual with the right to distance themselves from truthful information on the Internet, such that information is not returned when their name is Googled, appears fundamentally at odds with free speech. My paper focused on the interplay between this emerging privacy interest and free speech, to see whether they could be reconciled. I concluded that, when one considers the philosophical justifications for why we protect speech with the justifications for protecting this privacy interest, they are both means to achieve the same rights/liberties for individuals and neither should be immediately prioritised over the other.
36 | The Brief
he debate about recognising Indigenous people in the Australian Constitution has been seen by many as an opportunity to address and reframe the relationship between Australia and its Aboriginal and Torres Strait Islander citizens. This discussion has brought forward the issues of treaty and to what extent the sovereignty of Australia overrides Indigenous sovereignty over the land and over their ability to control its own affairs. In the midst of this discussion, several Indigenous nations have made unilateral declarations of independence from Australia including the ‘Sovereign Yidindji Government’ near Cairns, which will act as a case study. My paper will seek to examine the legal position of such declarations from the perspective of domestic law, including cases such as Coe v The Commonwealth and Mabo v Queensland (No 2), questioning whether Australia has ever fully addressed the issue of competing sovereignty. It will also examine the mechanisms that provide for such declarations under international law and ask whether these mechanisms provide any real avenue for Indigenous Australians to assert their sovereignty. My paper will then use the answers to these questions to critique the law from a settler-colonialist perspective.
Expand When you join Lander & Rogers, you’ll have the opportunity to grow into a great lawyer. But that’s just the start. Working alongside some of Australia's leading experts and one of Australia's most highly regarded pro bono practices, you’ll acquire the real world skills demanded of the very best lawyers. Here you’ll become a lawyer and more.
Discover your and at landers.com.au/graduates
Edition 3, 2016 | 37
Take flight with a career at Maddocks Maddocks works in partnership with our clients to support them in reaching their goals. We have the same attitude with our people in helping them reach their full potential. The unique position Maddocks has in the market - working with both corporate and government clients - provides seasonal clerks, graduates and junior lawyers with the opportunity to work on high-quality, complex matters, take real responsibility and have genuine contact with clients at an early stage of their career. Our firm culture is very important to us and we work hard to sustain it. We take very seriously the health and wellbeing of our people, take pride in their diversity and provide outstanding learning and development opportunities. And we also understand that we have a responsibility to the communities in which we operate to act in an ethical and empathetic way, which we do through our pro bono, sustainability and charitable grants initiatives. That is why we have just been recognised again by the Workplace Gender Equality Agency as an Employer of Choice for Gender Equality (EOCGE) for 2015 – the 12th consecutive year we have received this citation.
The journey with our clients We work with our clients to build strong, sustainable relationships. We get to know our clients and the sector they work in, and work with them to help them achieve their goals. We provide premium commercial legal services to corporations, businesses and governments throughout Australia and internationally. We advise clients across a range of sectors, including education, government, infrastructure, healthcare, professional services and technology.
Clerkships: now boarding Our approach to recruitment is based around our commitment to individuality and diversity. We are not looking for a specific stereotype and will consider each application in its entirety to determine whether the applicant has strengths and qualities that are compatible with the firm’s core values. We look for students who have a well-rounded experience and approach to life, who not only have the right academic ability but who also fit the firm’s culture and values. Once at Maddocks, our intention is to ensure our clerks have a good understanding of the firm and the kind of work that we do, as well as what it would be like to be a graduate in the firm. As such, we offer our clerks hands-on, practical work. Clerks will work closely not only with solicitors but with senior associates and partners and will have exposure to complex matters and client contact. All clerks take part in an informative induction program, which includes partner-run sessions. Each clerk is assigned a senior lawyer as their coordinator to assist in managing workflow and act as a mentor for their rotation. All clerks are assigned a buddy and are invited to network with current graduates. Applications open 15 June 2016. All of our graduates complete Practical Legal Training through the College of Law. In addition to this we have designed a comprehensive internal training program.
Our corporate and government clients value our contribution to their work: we provide clear, solutions-based advice and are easy to work with. But don’t take our word for it. Here’s what our clients said about us in the latest edition of Chambers and Partners: “Considered to be the best in the business and are always very courteous with a focus on long-term relationships.” “They’re responsive, know their stuff, and are happy to get involved and willing to listen.”
twitter.com/maddockslawyers linkedin.com/company/maddocks facebook.com/maddockslaw
38 | The Brief
www.maddocks.com.au/careers
A Postcard from Abroad
Name: Daniel Symington Year: 4th year Degree: Bachelor of International Studies/ Bachelor of Laws Where: Carleton University, Semester 1 2016
Daniel at the Canadian Federal Parliament House
Acorn Lane, Boston, Massachusetts
What made you want to do a law exchange? A semester-long law exchange was actually a mandatory requirement of my degree, so that was one of the main reasons I chose it. The main benefit of studying law in Canada is that it presented me with the opportunity to study in another common-law system (apart from the UK). This meant I could get a perspective on how Canada used law and policy to overcome issues which are not that different from those faced by Australia.
Which subjects did you undertake? How did you find the workload and difficulty of the subjects? The study load at Carleton was the same as at Macquarie. As a full-time student, I did four subjects. However each subject had one weekly 3 hour class, not a 2 hour lecture and a separate 1 hour tutorial. While this was initially tough, I actually preferred that structure. The subjects I undertook were: mediation, international human rights, the politics of crime, and workplace conflict >> Edition 3, 2016 | 39
Bow River, Banff, Alberta
resolution. The subjects were not particularly hard, but the expected standard of work for assessment tasks was significantly higher. Similarities/differences between Australian and Canadian universities? Australian universities have ‘campus life’, but Canadian universities have ‘residence life’. As with North America in general, the culture surrounding university is that a lot of high school students leave home, and live on campus for the duration of their degree. At Carleton University, I noticed that this fostered a sense of community within the student population. If somebody in residence needed anything, it was no problem to ask your neighbour down the hall if they could help out - ‘anything’ could mean toilet paper, sugar, a printer, even a portable toaster oven! In terms of academics, the class sizes at Carleton were generally smaller: I think the largest course I was in had just 50 people. Additionally, any class time was spent with the lecturers (‘professors’) fostering conversation and debate. I don’t think I ever had any predetermined tutorial questions going into a class - the time spent was more focused on exploring ideas and debates. How did you settle into life in Ottawa? Being there in winter, the most notable thing about Ottawa was the weather. Between January and March, the temperature did not rise above 0 degrees Celsius, and the coldest day I remember was -32 degrees Celsius with wind-chill. After a while though 40 | The Brief
I got used to it and by the time spring arrived in April, I was out playing sports, wearing shorts and a shirt while there were patches of snow still on the ground. Some people say that Ottawa to Canada is like what Canberra is to Australia. While it is true that Ottawa is a smaller city and is the nation’s capital, last time I checked, Canberra didn’t have a frozen river on which I could skate to the CBD, nor snow that came up to my thighs! Thoughts on student life? Living on campus makes student life a whole lot more enjoyable. Having welcoming Canadian roommates certainly made my time at Carleton infinitely more enjoyable, and they became the foundation for most of the friends I made. My room was only metres away from the campus bar, and if my friends and I felt lazy, we would just hang out in our own living rooms. Ottawa is an extremely studentfriendly city, with multiple different bus routes and a train line running through campus. This made late night escapades to downtown bars and nightlife a whole lot more feasible. Highlight(s) of your law exchange? My classes in Ottawa finished at the end of April, so that left me with 2 months to travel around the rest of Canada and the USA. It is cliché, but the whole trip was enjoyable. Destinations included Montreal, Boston, NYC, Washington DC, Chicago, Edmonton, Rocky Mountains, Vancouver and Vancouver Island.
Edition 3, 2016 | 41
A Brief Review
Dangerous Ideas for Paramount Fears Kathlyn Gonzales
T
he Festival of Dangerous Ideas is a melting pot of controversy, challenging concepts, and inspiring performances. Held in the first weekend of September, the Sydney Opera House event hosted speakers from across the globe. The topics discussed ranged from the asylum seeker crisis to American politics and personal recounts of cheaters and sex addicts. A common thread interwoven throughout the talks was its ability to garner criticism and dissent, and encourage support and human connection. The first talk I attended was ‘Crisis Without Borders’ with Philippe Legrain, Miranda Johnson, Hamish Macdonald and Jane McAdam on the panel. The talk fleshed out the underlying conditions currently feeding the Australian population’s fear of a ‘refugee crisis’. The speakers questioned this by explaining that out of the estimated 65.3 million people who have been displaced or forced out of their homes, Australia has accepted about only 13,500 of these individuals. The panel attributed this exaggerated understanding as a by-product of Australia’s ‘island mentality’, stemming from historical fears of invasion from its Asian neighbours. The panel also proposed that this public misperception was influenced by the Howard Government which supposed that ‘good’ refugees wait for visa approval in refugee camps while ‘bad’ refugees ‘cut the line’ by boat arrivals. The following talk titled ‘The Right to be Cold’ was presented by Sheila Watt-Cloutier who discussed the Inuit people’s experiences 42 | The Brief
with climate change and rapid modernisation. Ms Watt-Cloutier highlighted the detrimental effects of these two factors including toxic breast milk and economic instability due to the collapse of their animal-fur industry following the global anti-fur movement. The talk also exposed that potential oil reserves beneath the melting snow is the world’s ‘next big thing’. However, Inuit people have seldom been heard on the international forum. Since the Inuits inhabit the north of Canada, ‘developed nation' status has also excluded them from the international ‘Green Climate Fund’ which assists developing nations to adapt to the effects of climate change. At the conclusion of the Festival of Dangerous Ideas, I came to realise that its sole purpose was not in presenting confronting realities alone, but to inspire solutions and deliver a message of hope. The sessions were not presented with a defeatist attitude as one would expect from such complex and solemn issues, but rather encouraged discussion among the audience which in turn led to greater public involvement and concern. I would highly recommend the Festival of Dangerous Ideas for those who are too comfortable and complacent in their worldviews. I also recommend the event for those who are unsatisfied with the narrow, biased reporting of Australian media and desire raw human stories of struggle and triumph. I definitely look forward to attending the event next year to see what else we have missed in our preoccupation with the mainstream.
WITH THANKS TO Platinum Sponsors
Gold Sponsors
Silver Sponsors
Supporting Sponsors
Edition 3, 2016 | 43
iF nldinuse
on
Access Australia’s Best Law Student Publication: Anytime. Anywhere.
www.facebook.com/ thebriefmagazine
44 | The Brief
www.issuu.com/ muls
www.muls.org