The Brief Edition 2 2020

Macquarie University Law Society magazine Edition 2, 2020 (Volume 26)

Ed.2 2020

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Contents

Edition 2, 2020 (Volume 26)

Features

14 16 19 6 9 10 11

Australia and the Cruise Industry: How to Stay Afloat Alexander Moore From Monopolies to Cartels, Coronavirus is Shifting the Balance of Power Abinaja Yogarajah

22 24

State of the Unions: Can Australia’s Existing Industrial Relations System Survive the Shock of Coronavirus? Nicholas Haughain Advocating Self-Preservation through International Law Chloe Poole

Critical Infrastructure in this New Epoch?

Anjali Nadaradjane

What’s New in the Law? Lachlan Williams Under the Radar: Who do Australian Policitians Really Represent?

Dominic Christie Social Justice Corner: The Pell Acquittal: Was Justice Served?

Rimsha Acharya Devil’s Advocate: COVIDSafe Beth Jones & Rachel Hay

Regulars

27 31 34

A Brief Conversation: Speaking with Scott Atkins, Norton Rose Fulbright Australia Nerissa Puth Postcard from Abroad: Calgary, Canada Jessica La A Brief Review: Justified Brindha Srinivas

Editor’s Welcome In the last edition of The Brief – written beginning of the new year – we explored the modern challenges of climate change and the catastrophes from the bushfire crisis in Australia. Fast forward five months, a new crisis emerges in the form of a global health pandemic. The coronavirus, which in February, we all still hoped could be contained has now changed our domestic and professional lives. As restrictions begin to ease, the optimists amongst us will see the changes to survive the pandemic for the better: more flexible work arrangements, more time spent with family, cleaner environment, time for reflections and adoptions of new skills.

However, the notion of survival takes on a different light over in the USA as anti-racism demonstrations were prompted over the barbarous treatment of George Floyd, a 46 year-old black man, following his arrest in Minneapolis, USA. For the second edition of The Brief, the theme of survival calls for a critical eye into novel circumstances and the legal fall-out of the pandemic. Alexander Moore explores the delicate balancing act a sovereign government must undertake when a cruise ship declares distress and the novel circumstances for cruise ships amidst the coronavirus (pg.14). Abinaja Yogarajah explores market power and potential anti-competitive behaviours in the airline industry amidst the pandemic (pg.16). Nicholas Haughain explores whether Australia’s industrial relations systems can survive the shock of the pandemic (pg.22).

Simultaneously, the theme of survival calls for a renewed inspection into issues. Central to the survival 4 | The Brief

of the Australian economy is a robust system of critical infrastructure. Anjali Nadaradjane explores the interdependency of critical infrastructure and how the impacts of the pandemic to the economy demonstrates that Australia needs a resilience-based approach to critical infrastructure (pg.19). Beyond COVID-19, Chloe Poole re-visits the legitimacy of the global order in light of the assassination of Iranian leader, Qasem Solemani.

In the article, she explores the old notions of ‘survival of the fittest’ and state’s interests in self-preservation in the international realm (pg.24).

Survival is a central consideration in the Australian Government’s response to ensuring that businesses stay afloat. In this edition, we were fortunate to speak to Scott Atkins, an internationally renowned lawyer in financial restructuring and insolvency at Norton Rose Fulbright Australia. We thank Scott Atkins for taking the time to share his insight and expertise into how Australia has adapted its laws to assist in managing businesses in distress and the emerging question of how businesses will stay afloat as we near the end of temporary relief (pg.27).

We are grateful for the support and contributions that has enabled us to provide a platform to share our creative and diverse analysis of the contemporary legal world. As always, I thank all writers and sub-editors for your hard work, particularly during these difficult times.

We hope you enjoy ‘The State of Survival’!

Nerissa Puth Editor-In-Chief Ed.2 2020

thebrief.muls.org Edition 2, August 2020 (Volumn 26) EDITOR-IN-CHIEF Nerissa Puth

DIRECTOR OF PUBLICATIONS Devlin Greatbatch Murphy DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER)

Abinaja Yogarajah, Alexander Moore,

President’s Welcome Welcome to Edition 2 of The Brief: ‘The State of Survival’. Although this issue’s theme perfectly fits the turbulent few months we have just had, things are beginning to look up with the corona-curve flattening, the government taking measures to ease restrictions on social distancing and the April toilet paper panic being well and truly behind us.

Although the university closed its doors last semester, we are looking forward to heading back in this month as classes resume for semester two. As we slowly begin to bring back in-person events, we look forward to continuing to provide students with opportunities to learn and remain engaged with the law.

We have some topical reads for you, including discussions surrounding the assassination of Qasem Soleimani, the impact of a global pandemic on business and commerce as well as a look into national security risks of espionage, sabotage and coercion arising from foreign involvement in Australia’s critical infrastructure. Also, keep an eye out for a particularly interesting interview about the impact of COVID-19 on businesses between Nerissa and Scott Atkins, Head of Risk Advisory and Partner at Norton Rose Fulbright Australia.

I hope that you learn something new from this fantastic edition of The Brief and I thank Nerissa, Devlin and all of the contributors for producing such high quality and contemporary pieces.

Daniel Lim President, Macquarie University Law Society Ed.2 2020

Anjali Nadaradjane, Beth Jones, Brindha Srinivas, Chloe Poole, Dominic Christie, Jessica La,

Lachlan Williams, Nicholas Haughain, Rachel Hay, Rimsha Acharya SUB-EDITORS

Abirami Kandasamy, Benjamin Turnell,

Celine Nalbandian, Jessica La, Katerina Poulos, Olivia Tabbernal, Seren Ozdemir, Zoe Gleeson EDITORIAL REVIEW

Devlin Greatbatch Murphy IMAGES

Shuttershock unless otherwise stated.

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

Visit our website at thebrief.muls.org.

DISCLAIMER

All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law

Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

WITH SPECIAL THANKS TO

Scott Atkins, Partner and Head of Risk Advisory at

Norton Rose Fulbright Australia for taking the time to shed his deep expertise in an interview with The Brief.

The Brief acknowledge the Wattamattagal people of the Darug Nation upon whose ancestral lands Macquarie

University now stands. We would like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places.

thebrief.muls.org | 5

What’s New

in the Law? Lachlan Williams

Treasury Laws Amendment (Consumer Data Right) Bill 2019 (Cth)

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 In a landmark decision, the High Court, by a 4:3 majority, ruled that Aboriginal Australian’s who don’t hold Australian citizenship are unable to be deported under the Migration Act 1958 (Cth).

Both plaintiffs, Mr Love and Mr Thoms,were born overseas with one Aboriginal Australian parent. Both were convicted of offences against the Criminal Code (Qld) and facing faced deportation as unlawful non-citizens. Section 51(xix) of the Constitution, the ‘alien’ power, confers the parliaments right to do so. The key issue for the Court, was whether Aboriginal Australian’s could be considered as ‘aliens’. Gordon J in the majority the connection to land

by First Nations People was not noted that First Nations People connection to the land was not , and therefore extinguished as a result of European settlement and therefore they cannot be considered ‘alien’ the power. they could be ‘aliens’ on their under own land.

6 | The Brief

New laws passed in 2019 introduced a Consumer Data Right (‘CDR’) to the banking sector. The right enables consumers to direct their bank to share information they hold about them, with other suppliers. It will also give the consumer access to view their own data. All four major banks since July 2019 have been required to publicly share their product data and since February 2020, the four major banks have been required to share their consumer data relating to mortgage accounts. By July 2020, consumer data relating to personal loans will be available.

The plan is to phase the CDR across all banks and other sectors moving forward.

Ed.2 2020

COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)

Parliamentary Inquiry into Class Actions

In response to the COVID-19 pandemic, the NSW Government enforced regulatory powers for changes to the Residential Tenancies Act 2010 (NSW). New rules provide tenants relief from eviction if financially disadvantaged from the pandemic. The Act also bestowed temporary regulation making powers for the Electronic Transactions Act 2000 (NSW). The witnessing of legal documents can now take place via real time videoconferencing for up to six months.

Whilst only temporary, it will be interesting to see if this ‘trial’ may pave the way for future adoption of technology in the legal industry.

Attorney-General Christian Porter announced in March 2020 that a parliamentary committee will review the large profits in the litigation funding industry and its impact on justice outcomes. The report will be finished late this year. Mr Porter noted that the median return of members was 51% when litigation funding was involved as opposed to 85% per cent when it was absent. With a rise in class action lawsuits and litigation funding, the results of this inquiry will keep lawyers keenly waiting.

Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698 The Full Bench of the Fair Work Commission (‘FWC’), upheld the initial decision of the FWC, ruling that Uber d Eats Drivers are independent contractors not employees.

Therefore, they are unable to make unfair dismissal claims.

Ms Gupta was an Uber Eats driver for 16 months before she was blocked from their app as a result of poor delivery times. Ms Gupta argued that she was an employee as she was unable to set her own rates, form her own business relationships and delegate work. The Full Bench held that she was an independent contractor as she was able to choose her hours of work, accept deliveries using other food delivery apps and she didn’t have to represent the business, e.g. such as wearing a uniform.

Ed.2 2020

thebrief.muls.org | 7

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Cormac Foley Solicitor, Danny King Legal Graduate of the University of Wollongong

• • • • • •

Only 5 days face-to-face attendance More than 20 start dates in NSW in 2020 15 weeks full-time or 30 weeks part-time study options Emphasis on task-based, practical learning 15 days and 75 days work experience options The preferred provide to 9 of the top 10 law firms

Learn more at collaw.edu.au/PLT 8 | The Brief

Ed.2 2020

Under the Radar

Who do Australian Policitians Really Represent?

Dominic Christie

T

ransparency and accountability are two fundamental tenets that underpin any democratic system of governance. These two fundamental qualities create trust between Australian politicians and the public. So, why is it that trust in Australian politicians is at all-time lows? Some might argue it is because of the constant leadership changes or because of the squabbling and scandalising by politicians. However, I believe one of the most important reasons Australians do not trust federal politicians is due to the limited oversight and the lack of proper lobbying laws.

Before discussing what should happen, let us consider what is happening. The Australian Election Study in 2019 found that only 59% of Australians are satisfied with the way democracy is working, the lowest level since 1979; only a few years after Whitlam’s constitutional crisis. Furthermore, only 25% of Australians believe that politicians can be trusted, the smallest amount on record, and an overwhelming 75% of people believe that politicians are self-serving.

To finish off this disturbing assortment of statistics, only 12% of Australians believe the government is run for ‘all the people’, and 56% of people believe that the government is run for a ‘few big interests’.

Now consider that there is no federal Independent Commission Against Corruption (‘ICAC)’; the eight-page Lobbying Code of Conduct (2019) contains no penalties for breaches and that both Julie Bishop and Christopher Pyne have taken up highly paid consulting jobs shortly after leaving parliament. Is there any wonder Australians Ed.2 2020

have so little trust in federal politicians?

Although the moves of the former politicians to foreign aid contractor Palladium and Ernest & Young (‘EY’) respectively were investigated, a subsequent Senate inquiry found the initial investigation mostly consisted of a mere phone call to each of the former politicians. Furthermore, if any further investigation had been conducted and deficiencies found, there would be little, or more likely, no penalty as the Lobbying Code of Conduct is not enforced by an independent body, but by the very same government that the former politicians used to be a part of.

The Lobbying Code of Conduct does not consider the potential for reverse lobbying to occur, where instead of companies lobbying ministers for favours, the ministers lobby the companies for favours whilst in office to ensure later employment. Readers will find it interesting to note that Pyne met with EY to discuss a post politics role in defence consulting, whilst he was still the Defence Minister. Additionally, whilst Bishop was the Foreign Affairs Minister, Palladium was selected for foreign aid contracting work worth around $99 million, the third-most of any firm.

There are countless examples similar to this that might undermine public trust. The inane Lobbying Code of Conduct and the lack of a federal ICAC calls for something be done. Legislation must be enacted as soon as possible to reform the Lobbying Code of Conduct, otherwise Australian trust in politicians will continue to reach new lows.

thebrief.muls.org | 9

Social Justice Corner

The Pell Acquittal: Was Justice Served?

Rimsha Acharya

O

n 7 April 2020, Cardinal George Pell was acquitted in a landmark High Court verdict, and it has since attracted widespread emotional criticisms. Pell was found guilty of molesting two 13year old Cathedral choirboys after a Sunday Mass in 1996 at St.Patrick’s Cathedral in Melbourne and sexually abusing one of them months later. The prosecution had to prove beyond a reasonable doubt that the events of 1996 occurred. The Court unanimously overturned the conviction and ordered the immediate release of Cardinal Pell. This case restores the presumption of innocence of Pell in future court cases, extending to civil proceedings and defamation actions.

In Pell v The Queen [2020], the High Court had to determine whether the jury acted rationally and ought to have entertained doubt in respect to the whole of the evidence presented to them. As one of the Cathedral choirboys died in 2014, the testimony of the events could only be given by the single surviving witness.

The Court of Appeal relied on the testimony of the single surviving witness and accepted the truthfulness and reliability of the witness. However, the evidence provided by the other witnesses who had described further Pell’s whereabouts on the day of the alleged abuse should have raised questions on whether the crime was 10 | The Brief

committed. On assessment of each of Pell’s conviction, the High Court consistently referred to the words in Chidac v The Queen (1991) and M v The Queen (1994), ‘a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof’.

While the Court of Appeal considered that the complainant’s description of the interior of the church and the use of priest sacristy corroborated with his claim of abuse, evidence by the opportunity witness, were inconsistent with the complainant’s accounts. The counsel for Pell argued that there could not have been time for the abuse to occur in the location and time described by the victim.

It may be the case that the witness could have been honest about the abuse but got the specific details wrong. On the other hand, the opportunity witnesses who provided testimony could have been mistaken about the rituals and practices of St Patrick’s Cathedral in 1996. The opportunity witnesses were those that held official positions at the Cathedral during the time. They provided evidence on the processes and practises at the Cathedral to explore the issue of whether there was ‘a realistic opportunity’ for the offence to take place.

Although the High Court observed that rigidity is part of religious life, the possibility that there was time for the incident to occur still stands. As such, the Court held that their Honours in the Court of Appeal had failed to engage that there remained a reasonable possibility that the offending did not take place when assessing the evidence provided by the opportunity witnesses regarding Pell’s whereabouts on the day in question.

The case remains extremely controversial and it is rejected by many Australians as it will have a big impact on victims of abuse speaking out, especially when a prominent figure is involved. However, the Court also maintained that the verdict did not mean that the testimony of the single surviving witness was neither false nor wrong. Cardinal Pell’s senior counsel agreed in their submission that the choirboy was a credible witness.

The Pell judgement is one of the most important cases in Australian history. For many, it has resulted in loss of confidence in the justice system. The case raises the question of whether the jury system can be at fault in determining the guilt of a person. It reinforces that such a responsibility can be subject to a higher court.

Ed.2 2020

Devil’s Advocate

COVIDSafe

A

s our way of life continues to be shaped by the spread COVID-19, citizens in many countries have been encouraged to download contact tracing apps, which simplify the complicated manual contact tracing process. Australia’s COVIDSafe app is one such example, however it has been the subject of intense scrutiny to determine whether it might seriously jeopardise users’ personal private information. More than 5.5 million people have signed up to the Australian government’s COVIDSafe app. The app collects information including a user’s name or pseudonym, age, contact number and postcode. This information is formed into an encrypted code which, once Bluetooth is activated, is automatically shared with the apps of other users nearby. The encrypted codes are stored on both devices for 21 days before they are deleted.

Against

 Beth Jones

Although it is undeniable that the Federal government’s COVIDSafe app is designed to protect Australians from Covid-19, there are serious privacy concerns relating to the app that cannot simply be dismissed. The app continues to be riddled with inefficiencies and experts have argued that it is effectively useless on iPhones unless it is continuously running in the forefront of the phone. The times during which the app will be most useful and crucial are when people are using public transport or at shopping centres. Unfortunately, these are times when the app will most likely be running in the background, as people will be using their phones to look at social media and check emails. Australia’s COVIDSafe app was modelled on Singapore’s contact tracing app Ed.2 2020

TraceTogether, which also experienced these issues, with users complaining that they were not able to make phone calls whilst the app was functioning.

Government Services Minister Robert Stuart even acknowledged that the app might not work very well on iPhones in a press conference announcing the release of the app to the public.

Even though the Government knew about the ineffectiveness of the app on iPhones, it still chose to release the app to the public before this issue was resolved. It is arguable that the app was not even necessary at the time that the country was under strict lockdown restrictions. Additionally, the government failed to provide concrete privacy protection to the millions of users of the app. If the app is not even safeguarding the public from widespread infection, then it is certainly not worth the risk that it poses to our privacy.

The Health Minister Greg Hunt has repeatedly assured Australians that only state health departments responsible for contact tracing will have access to this information, and law enforcement agencies would not be granted access to this data under any circumstances. However, the legislation does not explicitly prohibit access via warrants or court orders. Perhaps the most concerning feature about the laws regulating the use of information collected by the app, is that the laws were only passed on 14 May, nearly three weeks after the release of the app.

When an individual tests positive for COVID-19, the app prompts them to upload the encrypted codes collected by their app onto a central server located on Amazon’s Web Services server in thebrief.muls.org | 11

Experts have warned that this central server will be viewed as an irresistible honeypot by hackers hoping to gain valuable information about the Australian public.”

Australia. Experts have warned that this central server will be viewed as an irresistible honeypot by hackers hoping to gain valuable information about the Australian public. All of the data stored on these servers will be deleted once the Health Minister declares that the pandemic has ended. This ambiguous timeframe is concerning, as the Health Minister is afforded broad powers which could easily be exercised for improper purposes, and the data could potentially be stored for years before it is declared that the pandemic has officially ended. It would be safer for the data to be deleted as soon as the contact tracing process for each confirmed case is complete.

The government released the source code for the app on 15 May, but it has yet to release the server code, which is a deviation from Singapore’s approach as they released both.

The release of the source code allows independent security experts to scrutinise the app and determine possible security weaknesses. However, the server code shows what the server, i.e. the government, is actually doing with the data. Clearly, there are multiple ways in which the personal data of millions of Australians could be breached, and these privacy concerns cannot be outweighed by the intention that the app will protect public safety by stopping the spread of Covid-19.

12 | The Brief

For

 Rachel Hay

It may be tempting to dismiss the Australian government’s COVIDSafe app as an untrustworthy and opaque initiative, belonging to dystopic narratives.

In some ways, this fear is not difficult to understand. The 2016 Census DDoS attacks, controversial ‘My Health Record’ protections and more have all contributed to a perceived ‘cavalier disregard’ for Australians’ privacy. However, as the global health crisis continues to develop, embracing technology and its strengths could be key to our return to normality.

Firstly, COVIDSafe has potential to significantly improve the efficiency of the current contact tracing process. The app will reduce time spent identifying, notifying and isolating people at risk, preventing the further spread of COVID-19 and supporting the gradual ease of lockdown measures.

While contact tracing apps are certainly not bulletproof, people can be reasonably confident in leaving their home safely if Ed.2 2020

“In this sense, the COVIDSafe app’s primary objective is to protect the collective community, not the individual.

they have not had close contact with a confirmed case. This is important as between one-third to one-half of COVID-19 transmissions occur before individuals are symptomatic, as demonstrated in a recent Oxford University epidemiology study.

It was also found that, while making various assumptions, if 56% of the population used the app, it could effectively avoid any resurgences of COVID-19 in a country. In South Korea, extensive digital surveillance has been utilised to successfully manage the COVID-19 outbreak. Contact tracing has been conducted through surveying individuals’ movements through debit card or credit card transactions, precise phone locations and also CCTV footage. People at risk are notified and locations of infections are made publicly available. These measures, together with widespread testing, have been instrumental in containing the outbreak.

In this sense, the COVIDSafe app’s primary objective is to protect the collective community, not the individual. We have already witnessed the rapid global devastation that COVID-19 has wrought; if the appropriate privacy protections are afforded to users of COVIDSafe, it is perhaps a small individual Ed.2 2020

sacrifice of personal information to pay compared to the thousands of lives that may be lost. At least, it could alleviate the severe social, psychological and economic impacts of lockdown measures until a long-term solution like a vaccine or treatment becomes available.

Secondly, in a bid to increase public trust and uptake of the coronavirus app, the Australian government has implemented the ‘strongest privacy safeguards that have ever been put in place by any Australian parliament’, as described by shadow Attorney – General, Mark Dreyfus. The Privacy Amendment (Public Health Contact Information) Bill 2020 (Cth), passed on 14 May 2020, amends the Privacy Act 1988 (Cth) and replaces the interim Biosecurity Determination made under the Biosecurity Act 2015 (Cth). The legislation makes it an offence for anyone to collect, use or disclose data gathered by the app, with the exception of State and Territory health authorities using app data for the purpose of contact tracing. Similarly, it is an offence to upload data without consent, retain data outside Australia, decrypt encrypted data from the app and to coerce individuals to use the app. These offences attract up to 5 years imprisonment and/or a $63,000 penalty. Accordingly, the data cannot be used by other government agencies such as police, even with a warrant. The OAIC has also been empowered with greater oversight of state and territory authorities.

Further, all user data will be deleted from the COVIDSafe server and all users will be informed that they should delete the app once the app is determined no longer necessary. As an added measure, the app deletes information about user ‘Bluetooth handshakes’ after 21 days, roughly the COVID-19 incubation period, and does not track location of users, only when close contact is recorded with another user.

Therefore, in light of the significant protections that have been afforded to users under legislation, privacy concerns are arguably not compelling enough to outweigh the potential improvements that COVIDSafe could offer in this devastating pandemic. thebrief.muls.org | 13

Australia and the Cruise Industry: How to Stay Afloat Alexander Moore

I

n amongst all the pandemic news has been a story that is particularly interesting with respect to the Australian political and legal climate. Throughout April, there were several cruise ships loitering off both the East and West coasts of Australia. Many of these cruise ships were doing so because they either had or suspected they had COVID-19 cases on board. They did not want to commence a long journey back to their respective ports of origin away from the Australian coastline as that would place them out of distance of medical and other aid should their passengers or crew require it.

Comparatively, the Morrison government ordered that the various cruise ships leave the coast of Australia as there was concern over the possibility that thousands of sick crew and passengers would request Australian medical care. This scenario would place extra strain on Australian healthcare resources at a time when Australians need them most.

At the time of writing, all foreign cruise ships departed Australian waters. Whilst on this occasion the Morrison government has avoided an international crisis, the government was not far away from having a Clint Eastwood-esque Mexican stand-off on its hands underpinned by a legal and moral minefield. This whole episode leaves some lingering questions about the sustainability of the cruise industry and, in particular, Australia’s relationship with it.

The Present Circumstances It is a fundamental principle of the law of the sea that vessels are entitled to innocent passage through a country’s territorial waters. That right does not extend, however, to anchoring off the coast indefinitely, as a state has sovereignty over its ports and territorial 14 | The Brief

waters. Generally, exceptions to these principles only exist where a vessel issues a distress call. In these circumstances, there is a duty for nearby vessels and/ or states to assist in ameliorating the distress. This includes the practice under customary international law of allowing distressed vessels to dock in the closest port.

What constitutes valid circumstances for distress, however, is somewhat of an open question. Historically, vessels declared distress when they were physically damaged and needed to seek repairs to continue onward. More controversially, in 2001, a Norwegian vessel issued a distress call and requested to dock on Christmas Island after it had rescued 400 asylum seekers. Whilst it is not unreasonable to suggest that cruise ships might be justified in issuing a distress call where COVID-19 presented a threat to those aboard, there is no obvious precedent in this regard.

A further legal consideration in respect of the novel circumstances created by the pandemic is a cruise company’s duty of care towards its passengers and crew. This issue becomes particularly pertinent when one considers some of the legal proceedings underway as a result of COVID-19 related actions. One such example is the ongoing investigations over the highly publicised and scrutinised mishandling of the Ruby Princess cruise ship.

Additionally, in recent days it has been reported that a class action has formed against Sydney-based, cruise company, Aurora Expeditions, who departed Argentina for Antarctica four days after a global pandemic was declared. It’s alleged that the company breached its duty of care to its passengers by allowing the vessel to leave Argentina as there was a heightened risk of infection on cruise ships. As a result, 128 people on board became infected with COVID-19.

Ed.2 2020

“What constitutes valid circumstances for distress, however, is somewhat of an open question.

The point at which each of these competing legal issues converge is highly complex. For cruise companies, times of crisis such as the current circumstances have the potential to create a decision between compliance with sovereign states, such as Australia, and the upholding of their duty of care to their passengers. The balancing act here, whether appropriately or not, is often underpinned by present and future commercial interests.

For the government, the cruise industry represents somewhat more of an Achilles heel. Their decision in times of crisis is conceivably one teetering between the economic interests of their constituents, the health and safety of their constituents, the health and safety of those aboard the cruise ship and their economic relationship with the cruise industry. This particularly delicate balancing act exists alongside the ever-present threat of a tactical misstep causing a diplomatic row.

Australia and the Cruise Industry The aforementioned precarious legal position that threatens to exist in times of crisis becomes even more concerning when the prominence of the cruise industry as part of the Australian economy is put into context.

Globally, revenue from the cruise industry has grown from approximately 15.7 billion in 2010 to a prepandemic estimate of 31.5 billion in 2020. Since Australia is well positioned to take advantage of this growth, it has invested heavily in its cruise industry appeal. Sydney alone has invested millions in taxpayer funds into its cruise facilities, with the White Bay Cruise Terminal opening in 2013 and several sets of upgrades completed on the Overseas Passenger Terminal between 2012 and 2019. This targeting appears to have been a success with the Australian Cruise Association estimating that in 2017-18 the cruise industry contributed $4.8 billion Ed.2 2020

(AUD) in direct and indirect economic output to the Australian economy. Put simply, the cruise industry is massively important to Australian industry.

Survival in the Future By no means is the cruise industry posing an existential threat to Australia that requires large scale government intervention. That acknowledged, the circumstances created by the pandemic have the potential to create a number of problems for Australia if replicated in the future. The situation created by the pandemic must be interpreted as a warning and Australia must act proactively.

Small scale changes may significantly affect Australia’s ability to manage the positive effects of a dynamic cruise industry with the negatives. For instance, it may be appropriate to create policies and procedures to pre-emptively manage expectations regarding responses in future scenarios. Similarly, Australian cruise terminals will inevitably have stricter protocols as a result of the Ruby Princess incident alone.

Alternatively, it may be appropriate for Australia to somehow regulate the number of particular kinds of cruise ships it allows into its waters. This might allow them to manage the risk presented by cruise companies who bring thousands of people to Australia on a single vessel (and might expect our assistance in a range of scenarios) but are registered as businesses in small tax-haven states thousands of kilometres away. In a number of examples, these vessels would carry passenger numbers larger than the equivalent resource capabilities of their home port.

Moving forward, Australia needs to continue to maximise its commercial interests in the cruise industry but do so in a way which limits the multitude of problems that could be brought by unforeseen circumstances. thebrief.muls.org | 15

From Monopolies to Cartels,

Coronavirus

is Shifting the Balance of Power Abinaja Yogarajah

T

he coronavirus pandemic has severely impacted the Australian economy and a number of key industries in strange ways.

As borders close, the aviation sector is experiencing serious turmoil. On the other hand, as people continue to panic buy, the supermarket sector is struggling to meet demand. This article focuses on the competition law issues currently being faced by the airline and supermarket industries in Australia. These issues are varied in nature but both causes of concern for the Australian Competition and Consumer Commission (‘ACCC’).

16 | The Brief

Ed.2 2020

While consumers may be waiting for postpandemic deals, Mr Sims notes that these rockbottom prices could ‘squash out competitors’ in the nascent stages of their emergence, which would also be considered anti-competitive.”

Virgin Flies into Voluntary Administration On 21 April 2020, Virgin Australia, Australia’s second major airline, entered into voluntary administration. A quick refresher – voluntary administration is the process by which a company appoints an independent administrator to help assess its options to resolve its financial difficulties.

Interestingly, this does not always mean that the airline will go under as it is not uncommon practice in the airline industry. Airlines such as Delta, United and American Airlines have all filed for Chapter 11 bankruptcy (a concept in the US which is a debtor-led process of restructuring to handle finances). All three airlines emerged as more efficient corporations. However, as Virgin’s administrator attempts to restructure the company to help it stay afloat, Qantas is left with significant market power. This monopoly has raised numerous concerns around potential anticompetitive behaviour.

Qantas’ potential to act anti-competitively may manifest in a number of different ways. Rod Sims, the chairman of the ACCC, has expressed concern around behaviour that might seek to exclude new airlines that emerge in place of Virgin. He mentions that the ACCC will be on the lookout for potential ‘exclusive arrangements with the airports [and] fuel suppliers’. The ACCC is also wary of possible predatory pricing that could price Virgin Australia, or its replacement, out of the market. While consumers may be waiting for post-pandemic deals, Mr Sims notes that these rock-bottom prices could ‘squash out competitors’ in the nascent stages of their emergence, which would also be considered anti-competitive.

In an attempt to protect new actors in the airline market, and to keep Qantas honest, Treasurer Josh Frydenberg may grant Mr Sims increased powers.

Although the current arrangements between the Treasurer and Mr Sims are confidential, this sentiment has been reiterated by Prime Minister Scott Morrison to ensure that when Virgin Australia does re-emerge, it can regain a foothold in the market.

Recently, the Competition and Consumer Act 2010 (Cth) had been revisited to allow the regulator to impose heavy sanctions against corporations if they contravene section 46 (which relates to misuse of market power).

If the court does find that Qantas misused their market Ed.2 2020

thebrief.muls.org | 17

power and engaged in conduct which has the purpose or effort of substantially lessening competition, then the penalties are higher of up to $10 million or 10 percent of turnover.

With Qantas’ large turnover, the penalties are expected to be quite significant. It is only a matter of time until new market entrants emerge in the airline industry, and Qantas is required to respond accordingly.

Coles and Woolies Become Mates The ACCC’s COVID-19 Taskforce has been working through the pandemic to ensure that consumers are protected, and competition is still alive in different sectors. During this period, the ACCC has granted an interim authorisation to allow supermarkets to cooperate on grocery supply when working with manufacturers, suppliers, transport and logistic providers. An authorisation is given to a business when they apply to the ACCC to receive approval to carry out conduct that would otherwise give rise to a breach of the competition provisions of the Act. This is on the basis that the public benefit to meet demand outweighs such detriment.

Such authorisation currently applies to Coles, Woolworths, Aldi and Metcash.

While it may not sound controversial, the cooperation between supermarket chains is contrary to the ACCC’s fight against cartels and anti-competitive agreements. Cartels form when businesses make agreements with their competitors to fix prices, rig bids, share markets or restrict outputs. This conduct is typically frowned upon by the ACCC because cooperation between competitors effectively amounts to stealing from consumers. For example, it results in price inflations, a reduction of choices and a

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damaged economy. Furthermore, cartel conduct can attract heavy sanctions and, in some cases, criminal penalties.

Many commentators have reservations relating to these authorisations – not that they should not be given, but rather the authorisation’s scope to grant should be limited.

At the moment, the authorisation is broad and allows supermarkets to enter into arrangements for the purpose of facilitating the acquisition and/or supply of groceries, ensuring fairer access to groceries, providing greater access to disadvantaged people, and facilitating access in remote and rural areas.

Even though many of these are temporary measures made in light of the pandemic, the authorisation process raises concerns.

Although there is some involvement from the government, as the authorisation applies to agreements made by the Supermarket Taskforce (which is convened by the Department of Home Affairs), it still gives a great amount of power to large supermarket chains. Commentators are interestingly pointing out that rather than the government being at the centre of regulating this process, the major supermarket chains are leading the response. This has the potential to allow private corporations the power to join forces and collaborate on concepts such as ‘fairer access’ of essential supplies.

In conclusion, the coronavirus pandemic has had an unparalleled impact on the airline and supermarket industries. While they bring about very different competition issues, it will be interesting to see how volatility will force corporations and consumers to adapt and how business will emerge on the other side.

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Critical Infrastructure in this New Epoch Anjali Nadaradjane

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entral to the survival of Australia’s economy is a robust system of critical infrastructure. Critical infrastructure shapes Australia’s economy, prosperity and quality of life, and may encompass supply chains, information technologies and communication networks. If destroyed, degraded or rendered unavailable for an extended period, it would significantly impact on the social or economic wellbeing of the nation or affect Australia’s ability to conduct national defence and ensure national security.

Critical infrastructure can be government-owned such as dams, privately owned such as airports, community-owned like irrigation systems or involve public-private partnerships such as electricity distribution networks. Critical infrastructure networks are key to our functioning economy. For example, bringing food from the paddock to the plate demands

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the coordination of a complex web of producers, processors, manufacturers, distributors and retailers with the infrastructure supporting them.

The significance of critical infrastructure is evidently vital for a vibrant, prosperous country.

Unfortunately, critical infrastructure needs can be weakened or destroyed by unprecedented or large-scale events including natural disasters, equipment failure, crime and more recently the effects of Covid-19, a global health pandemic. These events have the capacity to disrupt our most essential services which are provided by assets, networks and supply chains.

This has major flow-on effects to our businesses, governments and communities. Furthermore, the proliferation of cyberattacks compromise Australia’s national security and debilitate key critical infrastructure sectors. The interdependence of many of sectors such as telecommunications and electricity

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... a blow to one critical infrastructure sector could cause cascading secondorder effects on other sectors, leading to a large-scale catastrophe that spirals out of control.”

means that a blow to one critical infrastructure sector could cause cascading second-order effects on other sectors, leading to a large-scale catastrophe that spirals out of control.

The disastrous impacts of Covid-19 on our economy demonstrates that Australia needs a resilience-based approach to critical infrastructure.

Australia needs to be able to effectively adapt to change, lessen our exposures to risk and learn from situations when they arise. Resilience can take many forms. It can involve coordinated planning across sectors and networks, responsive, flexible and timely recovery measures, and the development of an organisational culture that has the ability to provide a minimum level of service during interruptions, emergencies and disasters, and return to full operations quickly.

The interdependency of critical infrastructure networks and the Australian economy’s reliance on countries such as China is perilous. Covid-19 has shown that substantial economic pain can be inflicted as a result of a critical infrastructure interdependency. From Australia’s fisheries, iron ore and Liquified Natural Gas (‘LNG’) markets to the higher education and tourism sector, Covid-19 has caused these areas to crumble. It clearly indicates that failure or disruption in one sector can lead to disruptions in other sectors.

For instance, owners and operators of water infrastructure rely on electricity for pumping and telecommunications for monitoring operations.

Similarly, the communications industry needs electricity to run their networks, and the electricity industry needs telemetry services to run their operations and participate in the electricity market.

The transportation sector depends on the provision of electricity by the energy sector to power trains

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and traffic control systems, just as the energy sector relies on the timely delivery of fuel and other inputs through the transportation sector. The lack of understanding about the interdependencies between the electricity sector and others means that the risk of ‘catastrophic macroeconomic failure’ in the event of a cyber-attack is not adequately known.

The cyberspace is another key area where critical infrastructure has become interdependent.

The advent of the internet has made critical infrastructure far more complex, interdependent and as a consequence fragile. Previous cyberattacks have shown that Australia has become complacent in our reliance on critical infrastructure.

Cyberwarfare has severely impacted the physical world and Australia still appears to be only dimly cognisant of the grave risks posed by the interdependencies between critical infrastructure sectors in this regard.

Cyberattacks on critical infrastructure have become a pre-eminent concern for national security. Cyberattacks on critical infrastructure are capable of inflicting real-world damage. The frequency and severity of such incidents will likely only increase. In Australia, massive malware attacks have debilitated some of Australia’s major companies and services. Cyber incidents have affected government agency ServiceNSW, steel maker BlueScope, the financial services company, MyBudget. Cyber criminals have exploited the pandemic and there has been a noticeable rise in COVID-19-related phishing scams. For example, in 2015, Ukraine was the subject of a shocking cyberattack that managed to disable a portion of the nation’s electrical grid. The attack, widely believed to have been carried out by Russia,

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The interdependency of critical infrastructure networks and the Australian economy’s reliance on countries such as China is perilous.”

intentionally caused widespread blackouts for hundreds of thousands of people. Similarly, in Denmark, the headquarters of Maersk, responsible for around one-fifth of the world’s shipping, was brought to a standstill by the NotPetya malware, causing transportation disruptions at port facilities worldwide.

Sophisticated actors can insinuate themselves into vital control systems and remain dormant and undetected for long periods of time before the right moment to strike presents itself.

Some countries have been taking swifter action than others. For example, the United States has moved toward a more aggressive posture to defend its critical infrastructure systems against cyberattacks. The US government’s most recent cyber strategy details a growing emphasis on offensive cyber operations by certain branches of the US government. The US has also not ruled out responding to major cyberattacks on critical infrastructure through conventional forces.

Australia should be following the US example.

There’s a shortage of people with Operational Technology security skills, commercial solutions are less readily available, and boards lack specialist knowledge and experience. Many organisations across key sectors like telecommunications, energy, water and transport continue to feel only partially prepared or underprepared to respond to a cyber incident. Part of this is better understanding the convergence of operational technology (‘OT’) systems that were traditionally kept separate with organisations’ information technology (‘IT’) systems.

Boards of critical infrastructure providers need to explicitly set their Operational Technology cyber risk tolerance and monitor their organisation’s

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performance against it. The Critical Infrastructure Centre within Australia is best placed to coordinate and drive this across Australia to ensure a common best-practice approach. Furthermore, better education and information are needed at all levels.

This includes general awareness and training, specialist courses at TAFE and other institutions, improved threat information sharing, and technical information sharing. The Australian Cyber Security Centre could lead this activity, aligned with its existing programs of work. Moreover, resources need to be prioritised. The longer that action is delayed, the more of a head start malicious actors will have, the more convergence will have taken place without security being at the core, and the greater will be the threat.

Evidently, there are deep concerns that critical infrastructure is more vulnerable than ever.

Beyond espionage, sabotage and coercion, concerns about critical infrastructure include exposure to terrorist attack, disruption by disasters, rising awareness of the interdependent nature of urban infrastructure, and changes in ownership and responsibility for infrastructure assets. If Australian fails to strengthen its currently deficient cyber security system, Australia’s national security and economy is significantly at risk. Strong action is therefore needed to secure Australia’s critical infrastructure.

“Cyberattacks on critical infrastructure are capable of inflicting real-world damage. The frequency and severity of such incidents will likely only increase.

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State of the Unions:

Can Australia’s Existing Industrial Relations System Survive the Shock of Coronavirus?

Nicholas Haughain

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ith unemployment expected to exceed 10%, and with Australia entering its first recession in over twenty five years, the coronavirus pandemic has challenged the existing confrontational nature of the Australian industrial relations system. Both unions and employers are forced to work together to save flailing businesses and protect jobs.

Under Section 51(xxxv) of the Constitution (the ‘conciliation and arbitration power’), the Commonwealth has the power to legislate for ‘the prevention and settlement of industrial disputes extending beyond the limits of any one state’. The Commonwealth Conciliation and Arbitration Act 1904 (Cth) aimed to further regulate industrial disputes by establishing a national compulsory arbitration system with wage fixing and industrial dispute resolution powers being granted to the Commonwealth Conciliation and Arbitration Court.

Compulsory arbitration ensured that Australian workers were, on average, some of the best paid workers in the world whilst establishing commercial stability by preventing strikes.

The ‘Harvester’ case in 1907 established the world first’s living wage, with the High Court ruling that a wage must be sufficient for an unskilled male worker to support a wife and three children in ‘frugal comfort’.

With broad support for compulsory arbitration and centralised wage fixing by federal and state industrial relations tribunals by both major political parties, the industrial relations system enshrined the role of unions at the centre of the Australian economy with union density reaching a peak of 51% in 1976.

Since the introduction of the Workplace Relations Act 1996 (Cth), industrial relations in Australia has arguably mutated into a partisan, confrontational blood sport. The introduction of Australian Workplace 22 | The Brief

Agreements, a form of individual employment contracts (which allowed employers to override long established collective bargaining agreements), the prohibition of closed shop agreements, and the introduction of unparalleled restrictions on industrial action allowed many to be concerned with an irrevocable shift in bargaining power to employers at the expense of unions and workers.

The 1998 waterfront dispute in which the Patrick Corporation conducted an illegal lockout of Maritime Union of Australia members highlighted this new hyper confrontational environment in which sought to undermine unions. One might argue that trade unions such as the Construction Forestry Mining Maritime and Energy Union (‘CFMMEU’), have been forced to become more militant and industrially aggressive as a response to successive federal governments who have become increasingly ideologically opposed to unions. This is a far cry from the commitment to consensus based industrial relations and compulsory arbitration by more moderate Liberal governments led by powerhouses such as Robert Menzies and Malcolm Fraser.

The introduction of enterprise bargaining in 1994 by the Keating Labor Government aimed to increase labour productivity and reduce working days lost to industrial action, however, has objectively contributed to stagnant wage growth levels. Despite declining union density, Australia’s collective bargaining coverage rates have remained unchanged from 1996, at 60% of the total Australian workforce. Under the Fair Work Act 2009 (Cth), enterprise agreements must pass the ‘Better Off Overall Test’ (‘BOOT Test’) and be approved by the Fair Work Commission in order to come into effect.

However, recent moves by both employer groups and trade unions to ensure that businesses survive the ongoing economic crisis, and as many as possible employees remain employed; has increased industrial Ed.2 2020

“The old power dynamic of ‘workers versus bosses’ continues to weaken in an economy with ever growing numbers of selfemployed contractors and small business owners.

collaboration. The joint application by the union representing hospitality workers, the United Workers Union, the employer group, the Australian Hotels Association to vary both the Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010 allowed for greater flexibility for employers. The changes allowed employers to direct employees to take personal leave with 24-hour notice, and direct permanent full-time employees to work an average of between 22.8 to 38 hours a week, paid on a pro rata basis. In light of the impact of coronavirus, the National Tertiary Education Union (‘NTEU’) is also currently in negotiations over establishing an agreement with all Australian universities to save university jobs and ensure the ongoing financial viability of the Australian higher education sector.

In an era of declining union density, stagnant wage growth and rising inequality; increasing the bargaining power of trade unions is key to ensuring that the Australian union movement regains some of its lost industrial power and relevance. The old power dynamic of ‘workers versus bosses’ continues to weaken in an economy with ever growing numbers of self-employed contractors and small business owners.

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Increased collaboration between unions and employers and a more productive, robust industrial relations system can only occur if employers respect the legitimacy of employers and the key role they play in boosting productivity and reducing industrial strife.

Employers must not engage in divisive, confrontational union busting behaviour or they risk provoking industrial warfare in Australian workplaces. On the other hand, unions need to understand that the most effective and largest unions in Australia such as the moderate Shop, Distributive and Allied Employees Association (‘SDA’), and the Australian Nursing and Midwives Federation (‘ANMF’), primarily rely on a collaborative and consensus based approach to industrial relations to ensure that workplace disputes are efficiently resolved, and that their members enjoy some of the best pay and conditions in the world for their respective industries.

Only an industrial relations system based on genuine consensus with an unpolitical national workplace relations tribunal will provide stability for employers and the overall Australian economy, whilst ensuring that Australian workers continue to enjoy some of the highest pay and conditions in the world. thebrief.muls.org | 23

When threatened, survival instincts are triggered which incite means of protection and self-preservation.�

Advocating Self-Preservation through International Law Chloe Poole

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he legitimacy of global order remains at the heart of international law. Extensive cross-border relations, varying degrees of power and questionable conduct have increased the fragility of the international justice system. This article will focus predominantly on the assassination of Iranian leader, Qasem Soleimani, and the grounds on which gross violations can be justified. Specifically, it will evaluate the nature of power-conferring rights held by law-creating states which are used to increase the likelihood of nation sovereignty and survival.

Qasem Soleimani The renowned uprising of the 1979 Iranian Revolution paved a way for numerous populist leaders to triumph.

The most notorious was Ayatollah Khomeini, who led an anti-American theocracy aspiring to diverge from Western corruption. During this time, the military saw a huge increase in its combatants encouraging the growth of infamous leaders. One noteworthy leader is Qasem Soleimani. Major-General Soleimani maintained leadership over the Islamic Military of the Quds Force of the Islamic Revolutionary General Corps (‘IRGC’). This particular operational branch conducted clandestine and military activities. On 3 January 2020, the United States (‘US’) military piloted a drone strike at the base of Baghdad International Airport, killing General Soleimani. This strike was recognised as a retaliation against the Iranian-backed militias, who directed a 2019 missile strike on the US. To some, Soleimani was labelled as a ‘charismatic guy, a strategic genius and a tactical operator’. On the other hand, considering the thousands of deaths he coerced, he was also acknowledged as the ‘single most hated adversary in the world’. In light of these circumstances, the overarching issue regarding the ambit of international law came into question.

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The Legitimacy of Global Order Violations of international law have become increasingly widespread as a result of the rising tension between nation-states. Failures extend from non-compliance of administrative reporting to unprecedented defilements of human dignity.

There are a clear array of events that can undermine the legitimacy of global order, including: nuclear bombings, the inappropriate use of force, transnational war crimes and failures of upholding the fundamental principles of sovereignty. International norms have consequently been likened to a rulebook which governs the conduct of universal relations. Hence, international law has been the subject of controversy for decades.

One of the biggest concerns on the global front has been the brewing tension between nations. This tension has arguably increased opportunities for nations to exercise discretion over international issues.

A state’s conduct constitutes an internationally wrongful act when it breaches its own obligations under international law. Though states attempt to uphold territorial integrity and security, they tend to respond firmly and decisively if their country is threatened.

Iranian President Hassan Rouhani, confirmed this point by stating that ‘a single blunder can fuel a big fire’.

When threatened, survival instincts are triggered which incite means of protection and self-preservation.

Pressing questions have come to light as a result of the most recent missile strike targeting MajorGeneral Soleimani. Can the US justify the killing of Soleimani? Can the breach of international law amount to self-defence? Can self-defence amount to a means of survival?

“Can the US justify the killing of Soleimani? Can the breach of international law amount to selfdefence? Can self-defence amount to a means of survival?

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On What Grounds Can International Law Be Violated?

Before deciding whether the assassination of Soleimani can be adequately excused, it is worth analysing some of the relevant laws. Most pertinent is Article 2(4) of the UN Charter which states: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. Notably, there are few codified exceptions, which are held in Article 42 and 51. They declare that states may act against their legal obligations with the Security Council’s authorisation to use force, so as to ‘maintain or restore international peace and security’ (art 42) or when exercising ‘collective or individual self-defence’ (art 51). According to the US Constitution, once a treaty is ratified, it automatically becomes a part of the ‘Law of the Land’. In other words, it is assumed that international law upholds the same value of domestic legislation.

Historically, there have been many cases which demonstrate questionable violations of international law. Whilst the question of justification continues, answers subsequently remain inconclusive.

Scholars, politicians and academics continue to debate the rationalisation for violating Article 2(4) of the UN Charter.

The US Department of Defence released a brief statement shortly after the assassination which claimed that the State could justify its conduct on the grounds that it was ‘aimed at deterring future Iranian attack plans’. Contrastingly, Marko Milanovic, professor at the University of Nottingham School of Law, stated that he ‘could not imagine a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter (and arguably of US constitutional rules on the use of force)’. The preceding quote highlights the ambiguity and again, fragility, of the international justice system today.

As Slaughter & Burke-White stated, ‘international law has traditionally been just that – international [...] international law has penetrated the once exclusive zone of domestic affairs to regulate the relationship between governments and their own citizens’. Though international law assumes a legally binding position,

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“The hostile reciprocity between both countries represent an underlying purpose of protecting one’s sovereignty and own nation.

the compliance of those rights rests on the contingent willingness of all nations to obligate themselves equally. Often, this yields an imbalance of power between the law-imposing and law-creating state, generating an ‘undue structural domination of the most powerful state over the others’. The grounds which justify international law violations remain fairly ambiguous and continue to be widely debated.

Survival of the Fittest The power conferred upon the law-creating states often highlights the control and authority held by those nations. According to Donald Trump, the missile strikes killing Iranian Major-General Soleimani, were deemed a pre-emptive measure taken to avoid future attacks. The Department of Defence successively justified the strikes as a means of self-defence, further confirming the needs for self-preservation. This was confirmed by Trump who stated, ‘we took action last night to stop a war. We did not take action to start a war’. In response, the Iranian government promised ‘severe revenge’ and condemned the actions as a gross violation of international law. The hostile reciprocity between both countries represent an underlying purpose of protecting one’s sovereignty and own nation. As such, the unsteady relationship promotes greater protection to be acquired.

Conclusion Like any being, the notion of survival is placed at the forefront of all choices. In a Presidential position, the weight of protection lead to powerful decisions amounting to great contention. In relation to the Soleimani assassination, the grounds which justify gross violations continue to be widely disputed.

However, the case represents the willingness of nations to ensure sovereignty. As political leaders continue to make ambitious choices, the notion of survival will always guide these decisions.

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A Brief Conversation

with Scott Atkins,

Deputy Chair and Head of Risk Advisory at Norton Rose Fulbright Australia Nerissa Puth

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nce a law student at Macquarie University, Scott Atkins is now an internationally renowned financial restructuring and insolvency lawyer, currently sitting as the Deputy Chair and Head of Risk Advisory at Norton Rose Fulbright Australia. With a vast portfolio across the globe, Scott has contributed his expertise widely in advising nations and governments on insolvency and restructuring law reform. Scott is also the Vice-President and Fellow of the International Association of Restructuring, Insolvency & Bankruptcy Professionals (‘INSOL International’), as well as President of the Australian Restructuring Insolvency and Turnaround Association (‘ARITA’), Australia’s peak insolvency and restructuring professional association.

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Relieved that my request for an interview was granted, I spoke to Scott about how Australia has adapted its laws to assist in the survival of businesses and commerce during the COVID-19 period and the emerging question of what will happen when temporary relief for businesses reaches an end. Our conversation took a plunge into a project to assist the Asian Development Bank (‘ADB’) in crafting and modernising the 106-year old insolvency law in emerging Myanmar, the importance of corporate rehabilitation and value preservation, and the twists and turns that are entailed in the work of an insolvency and financial restructuring practitioner. The Brief would like to thank Scott Atkins for his time, and his incredible insight into insolvency and restructuring law reform.

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How has the Australian government supported businesses facing distress during the COVID-19 period?

It’s a very interesting question and I think the government has responded in two ways. The first is by providing financial support and we have seen the unprecedented levels of support through the financial and economic stimulus packages released in March, which included JobKeeper and subsequently the JobSeeker and JobMaker payments and programs.

That has had an incredible impact on some sectors of the economy to keep people at least financially covered. It has also allowed businesses to keep their doors open; to continue to provide employment and to provide services. I think the reason why we have seen a reduced number of businesses failing and insolvencies is, of course, because the stimulus package has made a difference. That is the economic side of the government’s response.

On the other side of the equation, the government has undertaken some reform of the Corporations Act 2001 (Cth) to provide important modifications that have staved off insolvency for businesses. That includes putting in place a moratorium in effect for insolvent trading for 6 months that will go through until the end of September 2020. What that means is that directors will be able to focus on saving the businesses that they are directors of, rather than being focused on and distracted by the risk of personal liability to which they would otherwise be exposed for (potentially) insolvent trading.

That has been a significant benefit for many small businesses, as well as, medium and larger businesses.

There have also been changes to the Banktupcy Act 1966 (Cth) which have provided relief (in timing terms) from bankruptcy for individuals. For individuals, there has been a change to the period of time within which debts need to be repaid so that bankruptcy notices have a longer period for compliance. This has been quite important and it means that anyone receiving a bankruptcy notice has 6 months within which to meet

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it. That extended period, as well as the increase in the minimum amount of the debt that needs to exist before a bankruptcy notice can be issued, means that it is much harder to bankrupt individuals.

I think that if you look at each of the elements of the corporate reform package and the personal bankruptcy package, together with the economic stimulus, it is clear that the government has done a considerable amount to lessen the impact of the downturn that has been caused

by COVID-19.

You mentioned earlier that a few packages entail a time limitation. In your opinion, once we surpass the time limitation set by sunset clauses, how can the economic recovery of businesses be supported beyond the initial support by temporary relief packages?

It’s a great question because what we need to be most concerned with is ensuring that businesses are able to operate in a viable fashion without government support because government support will not exist forever. We also need to avoid situations where ‘zombie companies’ begin to appear. The concern is that companies will not be able to operate without the support, but there is also nothing that would trigger them to go into insolvency. To avoid that, [it is] critical for many businesses to look very carefully at their balance sheet, their financial position, obtain appropriate advice from appropriate qualified experts to work out ahead of time what restructuring and operational changes may need to be undertaken and whether businesses need to change their mix of staffing and resources. These efforts should all be very much directed towards trying to ensure that their businesses are as strong and robust as possible.

If, having undertaken those reviews and doubt about the viability of the business is raised, then appropriate action needs to be taken as soon as possible so that creditors are not left out of pocket and anyone dealing with the business is not exposed to financial collapse.

It is important to be proactive in understanding what needs to be done for each business and that is what business owners should be encouraged to do right now.

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I note that you have previously referred to Australian insolvency laws as draconian. Do you think the reforms that flow from COVID-19 will create an impetus for larger and meaningful reforms in Australia?

I would hope so. I think the COVID-19 reforms that were put through the Corporations Act 2001 (Cth) demonstrate that we are equipped to undertake law reform much more swiftly. The reforms that the government drafted and put through to parliament, admittedly, in strange circumstances, were the result of an intensive amount of work in a short space of time.

It just shows that when there is the right political will, reform can be achieved very quickly. It doesn’t need to take decades to review what needs to be changed [before] undertaking change. I’d like to think that one lesson that we have learnt is that law reform should happen more swiftly.

Perhaps, [the COVID-19 reforms] are also an opportunity to take a deep dive into Australian insolvency laws and how they can be improved. My own view is that our insolvency laws are not well designed to support micro and small to medium sized enterprises. On the whole, our insolvency law is geared towards helping much bigger businesses to deal with the insolvency process. Our laws do not effectively, economically or efficiently support the insolvency or restructuring of small enterprises, and it is important to recognise that the majority of businesses operating in the Australian economy are small businesses. So, I think that there is a substantial opportunity to look at law reform in insolvency.

I also think that we have tried to improve the operation of insolvency law in recent years to achieve more effective outcomes. For example, two years ago, we introduced ‘ipso facto’ and ‘safe harbour’ reforms.

These were directed towards trying to support the restructuring of businesses in financial distress to prevent or stave off entry into the formal insolvency process, in particular into voluntary administration.

Those reforms probably have been effective, but I think there is a lot of room for further improvement. In Australia, we still have the tendency to put a company in financial distress into voluntary administration as the primary response. The empirical evidence is conclusive; most companies that enter into voluntary administration proceed into liquidation, which results

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in the shutdown of the business and sale of the assets.

Also, the return for creditors works out to be on average 11 cents in the dollar. That is not a compelling return and I think there is a lot of room for improvement to enhance the insolvency process.

If [we have a close] look yet again on what is considered draconian – it is the personal liability of directors for insolvent trading. Australia still has the capacity to send directors to jail for insolvent trading.

Admittedly, it has happened very rarely and only in the most extreme circumstances. However, it does operate as a significant disincentive for some people to set up businesses in Australia and it also creates a disincentive to use our insolvency processes in some situations.

That’s really interesting! Out of curiosity, I would like to hear more about how you became involved in efforts to modernise Myanmar’s insolvency regime. What does corporate rehabilitation and value preservation mean? Why are these important best practice principles?

The work that I’ve undertaken in Myanmar together with my colleague John Martin has now extended over four years. We had a genuine interest in wanting to work with an emerging economy in the insolvency reform space and were fortunate enough to be invited to put a proposal forward to the Asian Development Bank who sponsored the project. We were assigned the task of working with the ADB and the Union Supreme Court of Myanmar to design a new insolvency law. The primary focus was to modernise a 106-year-old law.

The interesting thing about Myanmar is that it has a rapidly growing economy. It is attracting a lot of foreign investment, but it is at a critical juncture where foreign investors are reluctant to put their money in the country unless they understand what will happen in the event of an insolvency or a failing of any investment. One of the primary drivers for modernising Myanmar’s insolvency law is that Myanmar, even more so than Australia, is comprised of micro and small enterprises. There are very few medium enterprises and almost no large enterprises, but some enterprises are growing to be large very quickly. So, we needed to build an insolvency law that was fit to the Myanmar economy and was responsive to the culture of the country.

So, we built a bespoke insolvency law that is efficient, readily accessible and easy to use. Myanmar has a number of public institutions that are going through a process of modernisation – one of them is the court system. Like a lot of countries in a similar position in their development cycle, the courts are thebrief.muls.org | 29

perhaps under resourced and heavily congested. So, part of the design is to ensure that business owners can go through a rehabilitation process without calling on the assistance of the courts. Hence, we designed the corporate rehabilitation process that enables the business owners, with the assistance of an advisor (an accountant or lawyer) to come up with a plan on how to deal with creditors and to re-organise their businesses to hopefully continue in operation. It’s all very much directed towards ensuring that businesses can be saved where possible and value in those businesses can be preserved. If not, [it is to also ensure] that the capital from those businesses can be recycled in the economy so that valuable capital does not become tied up in unsuccessful or failed ventures. The law came into operation in April – it is Act 1 of 2020 (in Myanmar). We are very much looking forward to seeing the first of the insolvencies under the new law and as it starts to evolve as the country begins to deal with the financial impacts of the pandemic.

That’s really interesting, especially your point of ensuring that reform entail a cultural fit to the country. Some of our student writers have offered to write on topical issues such as the voluntary administration of Virgin Airlines and so, many are curious in exploring restructuring and insolvency as an evolving field. What advice would you give to Macquarie University students with an interest in restructuring and insolvency?

I don’t think many people at the undergraduate level plan to become insolvency lawyers or insolvency accountants. I think that it’s a field that people discover once they start working and become exposed to a mix of corporate law, finance law, and insolvency and restructuring law. It allows for exposure to problem solving in some of the most complicated situations possible because almost every insolvency begins with a high level of distress for the business, the operators of the business and the stakeholders. So, crisis management is one of the hallmarks of many insolvencies – everything happens very quickly and all at once initially.

The complications that arise in insolvencies are quite extraordinary. When a business operates in a normal fashion, decisions are made on a daily basis by

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management. When all of that stops, you need to figure out how to unscramble the egg or untie the ball of wool – that is never easy. Often, books and records are never complete, relevant legal issues are complicated and not necessarily clear, which is why we have a lot of litigation in the insolvency space to either clarify the operation of law, to apply principles to work out who has the best claim to assets or who has an obligation owed to the company that needs to be met. I think the reason why people find financial restructuring and insolvency fascinating is because it is a mix of different knowledge and skills. It draws from everything; litigation, corporate advisory, finance, banking, intellectual property, employment law – there is no single domain of law that doesn’t pop up in an insolvency. When the insolvencies are more complex because the business operates in multiple countries all at once, the level of challenge is increased – however, so is the excitement and reward.

My advice with anyone who has an interest in a mix of disciplines of law that cover a broad spectrum would probably find insolvency and restructuring a fascinating discipline. I also find that, for whatever reason, people are always fascinated by corporate collapse. That of itself attracts people who are interested in investigation and forensic related matters. It makes the work more interesting – no job is ever the same, no insolvency is ever the same and there are always unpredictable twists and turns. It’s challenging, but it makes the work very rewarding.

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Postcard Abroad

CALGARY, CANADA Jessica La

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semester exchange had always been on my bucket list. However, the structure of law degrees at Macquarie University means most students won’t embark on the adventure until their fourth year of studies. So, when the time finally came, I was so excited. I didn’t know much about Calgary before I moved (except that ‘Cool Runnings’ was filmed there), but I knew I wanted to go somewhere with snow. I picked Calgary because, while it experiences some of the most extreme cold, it’s also the sunniest city in Canada - they get 333 sunny days per year.

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University life Adapting to life in Calgary wasn’t too difficult for me. I lived on campus, at Cascade Hall, where many other exchange and international students lived. I was lucky to meet amazing people from all around the world, who quickly became my exchange family.

Together, we experienced some of the most quintessential aspects of Canadian life, including ice hockey. There is an annual game called the Crowchild Classic between the two universities in Calgary: University of Calgary’s Dinos and Mount Royal University’s Cougars. The atmosphere at this game thebrief.muls.org | 31

was phenomenal – everyone was dressed head to toe in their respective colours, cheering for their university.

The Dinos won the game in the last thirty seconds, so you can only imagine the celebrations thereafter.

Throughout the semester, the Society of Law Students (‘SLS’) organised many events, including Law Formal, Law Show (their version of Law Revue) and ski trips. They also ran a weekly catch-up over half priced wine at a local pub, which was an excellent way to meet fellow law students.

Classes The structure of the University of Calgary’s law school is vastly different to Macquarie Law School. There are no lectures, but rather two 2-hour classes for each subject per week. I had a class at 8 am twice a week – in the dead of winter, this meant that I had to walk to class before the sun had risen! The campus, however, has ‘tunnels’ which connect all buildings on campus through underground tunnels or aboveground bridges between buildings. These tunnels allowed me to walk from my apartment to class without going outside and braving the cold. It was definitely a saviour during the polar vortex where there was a wind chill of -39oC! Law at the University of Calgary is a postgraduate program, so the cohort is much smaller. Each elective course is capped at around 25 students, which meant I missed out on a few subjects that I was interested

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in. However, the small class sizes encouraged genuine dialogue between students and professors, and therefore more in-depth understanding of course content. My favourite course that I took was Advanced Criminal Law, which was run by a criminal defence lawyer named Kaysi Fagan. Ms Fagan is an inspiring legal professional, who taught us from a uniquely authentic perspective. Her passion for her work transferred into her teaching, which made it even more enjoyable.

The subjects I took mostly had final exams worth 100%. Initially I found this really daunting, but in hindsight, it allowed me to enjoy my semester without the stress of multiple assignments being due. When the time came to study for my finals, I discovered that the top floor of the library offers distant yet picturesque views of the Canadian Rockies (a small silver lining).

Travel Before classes started, I travelled to California with a girl I met at orientation. We had known each other for only a few days before we decided to do a road trip from San Francisco to the Napa Valley, Yosemite and back. This spontaneity made this trip even more enjoyable and was, what I believe, the essence of exchange travelling.

Calgary is nestled at the foot of the Rocky Mountains, meaning that it is surrounded by some of the most beautiful landscapes. Banff is a small mountain

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town about a 90-minute drive away, so I spent many of my weekends there. Throughout my exchange, I was lucky to see so much of Canada. I visited new cities, experienced different cultures, walked on frozen lakes, went snowboarding, hiking, and even dog sledding. I remember being in awe of every view I saw. I had never seen snow before I moved to Calgary and suddenly I was living in a real-life snow globe.

Travelling with new friends is a unique aspect of exchange, and possibly the most rewarding. It gave me an opportunity to form close friendships with other exchange students, and create some of my favourite memories.

Take-aways Overall, my exchange experience was an incredible opportunity for learning, fun, and self-growth. Exchange is a unique experience which involves pushing yourself outside of your comfort zone, but the benefit is beyond worth it. I learned so much about myself and met amazing people who inspired me with their unique perspectives on the world. I am so grateful for the friendships and memories I made.

To anyone considering exchange, I encourage you to bite the bullet because you definitely won’t regret it. Surrender yourself to the experience and the only downside of exchange will be having to say goodbye at the end of it all!

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A Brief Review

Podcast

Justified Brindha Srinivas

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s a law student, the path we are on and our destination could seem unclear. Trying to practically apply what we are taught, whether it be through internships or jobs, can be a complicated process that often lacks guidance. Macquarie University’s Law Society’s (‘MULS’) newest creation, ‘Justified’, is a podcast which aspires to bridge the gap between students and the legal field. Sponsored by the College of Law and run by students for students, the podcast offers a fresh and insightful perspective on an array of topics, ranging from employment law to pursing a legal career. To flesh out the details of the podcast, I had an interview with the voice behind the podcast, Lucy Sheppard. At its core, the purpose of the podcast is to engage and educate its audience through incorporating conversations with highly qualified and zealous individuals in their respective fields.

Perhaps one of the podcast’s greatest strengths is its versatility in catering to a wide range of audiences.

As emphasised by Lucy, the guidance and discussions are not limited to law students but are open to all. The

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second episode of the podcast is a great testament to that. Episode 2 of ‘Justified’, titled ‘Pursuing Your Legal Career: How To Take Those First Steps’ featured Allens’ Graduate Resourcing Manager, Lauren Kay and, current Macquarie University Law Student and recent Summer Clerk, Melissa Camp. The episode covered a variety of topics including how to develop a legal career and the clerkship recruitment process. Drawing upon their own experiences, the speakers reveal both the triumphs and challenges they face whilst navigating the legal field, providing listeners with recommendations on how to approach clerkships and the skills required. Additionally, the team ask some pertinent questions such as how to effectively network and how to persevere when faced with career setbacks.

‘Justified’ is a strong fusion between topical issues in the industry and those who experience it on a day to day basis. The podcast continues to grow, with the team hoping to introduce new segments. The topics and comments raised in ‘Justified’ equip listeners with the skills and knowledge needed in order to thrive not only in the legal field but in various aspects of their life.

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