The Brief Edition 3 2020

Macquarie University Law Society magazine Edition 3, 2020 (Volume 26)

THE FUTURE IS

Bright Ed.3 2020

thebrief.muls.org | 1

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Contents

Edition 3, 2020 (Volume 26)

Features

14 16 19 7 8 10 11

The 2020 Pandemic, Plandemic or Infodemic? Rachel Hay Technology & People with Disability – The ‘Great Equaliser’ or Deepening Inequalities?

Patric Phelan

22 25

Climate Litigation: Suing for Climate Justice Cassandra Maclachlan

Should Australia take a Gamble on Las Vegas’ Zonal Taxation Success?

Alexander Moore Fighting ‘Illegitimacy’ with Illegitimacy: An Analysis of How Legislative Attempts to Silence Animal Activists are Counterproductive Simon Brannigan

Regulars What’s New in the Law? Natalia Di Stefano

28

Under the Radar: Is Australia’s Freedom of Information System in Need of Reform?

Julian Favero

33

Social Justice Corner: Is Technology the Key to Innovating Access to Justice?

Celine Nalbandian

34

Devil’s Advocate: Quotas: Should there be Mandatory Diversity Quotas to Tackle Gender Inequality in the Legal Profession?

Olivia Tabbernal & Abinaja Yogarajah

A Brief Conversation: With Sam Burrett, Associate Commercial Director at Plexus Olivia Mueller Stuff Law Students Like: It’s Not You – It’s the Unattainable Expectations Placed Upon You. Daniella Murphy A Brief Review: Stateless Tanmay Kulkarni

Editor’s Welcome Dear reader, We are delighted to present our final edition of the year, ‘The Future is Bright’.

Inspired by a quote by science-fiction author William Gibson, ‘The future is already here – it’s just not evenly distributed’, we delved into the topics of mass misinformation by conspiracy theory and social media (pg.14), whether the zonal taxation applied on the Las Vegas ‘strip’ could provide a solution to the uneven economic development across Australia (pg.22), and whether technology could deepen inequalities for people with disability (pg.16). Our third edition also comes in the midst of a growing concern for climate justice and animal welfare, contexts in which a brighter future is fought by activism. Against this background, our talented writers explored the rise of domestic climate change litigation (pg.19) and the pushback against ‘ag-gag’ media laws in the agricultural industry (pg.25). In this edition, we also had the good fortune to speak to 4 | The Brief

Sam Burrett of ‘The Leading Lawyer Project’, a podcast following how top lawyers, legal tech CEOs and ALSP navigate the evolving legal environment (pg.28). We hope they offer you a unique perspective of the unravelling complexity of the technological and legal landscape we are experiencing today.

We extend our thanks to the writers, editors and designer for their hard work in creating this issue and their passionate curiosities to develop a diverse student community for forward-thinking student academia. We also thank the Director of Publications, Devlin Greatbatch Murphy, our President, Daniel Lim and the MULS community for their ongoing support.

As always, we are grateful for your support and we hope that you, the reader, enjoy our final edition of The Brief for the year.

Nerissa Puth Editor-In-Chief

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thebrief.muls.org Edition 3, November 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,

Cassandra Maclachlan, Celine Nalbandian,

Daniella Murphy, Julian Favero, Natalia Di Stefano,

Olivia Tabbernal, Simon Brannigan, Tanmay Kulkarni SUB-EDITORS

President’s Welcome Welcome to the final edition of The Brief for 2020!

Thank you to all of the fantastic contributors who have produced interesting and insightful pieces of work for The Brief this year. I would like to extend a special thanks to the Editor, Nerissa Puth, for her efforts in putting together this fantastic publication throughout the year.

The development of technology has continued to disrupt a number of sectors, with the legal industry being no exception. As law students of the modern era, it is critical that we understand these developments and evaluate how they will affect the law in the future. As you read each article, I encourage you to consider how the change of technology is affecting you in your day to day life.

Often, these implications go unnoticed, but really, they are more critical than ever.

As we come to the close of a difficult year, it is important to remain optimistic for what is to come next. The future is bright, and it is important to embrace the opportunities and challenges that it holds.

I hope that you enjoy this read. I wish you all the best for the new year!

Annaleisse Searle, Benjamin Turnell,

Sophia Davies, Sophie Baxter, Isabel Lowe, Seren Ozdemir, Vrinda Jain, 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.

ACKNOWLEDGEMENT OF PEOPLE AND COUNTRY

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.

Daniel Lim President, Macquarie University Law Society Ed.3 2020

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Ed.3 2020

What’s New

in the Law? Natalia Di Stefano

Australian Whistleblower Policy In March 2019, the Australian Federal Government passed new whistleblower legislation to ensure that people are able to anonymously report unethical or illegal behaviour occurring in Australian businesses. As of 1 January 2020, public and large private companies were legally required to have an updated whistleblower policy. The changes have expanded and significantly strengthened the existing protections in the private sector, which have to date have been viewed as inadequate and lagging behind global norms. It is expected that companies who fail to follow the new whistleblower laws could face fines of up to $10.5 million.

Defamation Amendment Bill 2020 (NSW) New South Wales has taken the lead in implementing longawaited reforms to Australia’s Uniform Defamation Laws since introduced the last update in 2005. The legislation was passed on 6 August 2020 and will introduce wide ranging reforms, including a serious harm threshold, a public interest defence, and clarification of the cap on non-economic damages. The changes intend to create better balance between the goals of protecting individual reputations and promoting freedom of expression, particularly where matters of public interest arise. The amendment recognises the changes in the nature of publication, particularly the increase in online publications.

It also seeks to decrease the number of minor matters to reach litigation.

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (Cth) The House of Representatives recently passed a Bill which will strip mobile phones from detainees in immigration detention centres. The purported rationale of Bill is ‘to ensure that the department can provide a safe and secure environment for staff, detainees and visitors in the facilities’. One of the concerns amongst many is that the Bill is a deliberate attempt to prevent or limit contact with the outside world. The Human Rights Law Centre submitted that the amendment is punitive, disproportionate, and incompatible with Australia’s international human rights obligations. The Bill is set to be defeated by the Senate, however, more than 1500 people remain in immigration detention across Australia. Parliament should demand action to release the hundreds of refugees and people seeking asylum who remain unnecessarily and indefinitely locked up across Australia.

What’s New in the Law continues overpage

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Under the Radar What’s New in the Law continues

Design and Building Practitioners Act 2020 (NSW) In response to the perceived construction crisis in NSW, the State government has passed new laws to restore public confidence in the building industry and regulate the design and construction of new buildings. The Act aims at improving the quality and compliance of construction work in NSW. Arguably the most significant change is the introduction of a non-delegable and retroactive statutory duty of care.

Westpac Settles AUSTRAC Money Laundering Case with $1.3 Billion Fine In November 2019, AUSTRAC launched a Federal Court action accusing Westpac of breaching anti-money laundering and counter-terrorism financing laws more than 23 million occurrences. These allegations included allowing customers to transfer money to the Philippines in a manner consistent with child exploitation. Westpac formally admitted to these claims in May 2020, opening the way to a settlement and agreed to settle by paying a record $1.3 billion penalty. It is one of the most substantial penalties in Australia corporate history and almost double the previous record paid by the Commonwealth Bank of Australia for 54,000 money laundering breaches in 2017.

8 | The Brief

Is Australia’s Freedom of Information System in Need of Reform?

Julian Favero

A

ustralia’s Freedom of Information (‘FOI’) regime was established to enable citizens to access documents that are held by Australian Government ministers and agencies. These include documents that contain personal information, policy-making documents and administrative decision-making documents. This system is regulated by the Commonwealth Freedom of Information Act 1982 (‘FOI Act’), which recognises that information held by government departments should be made available to the public on request and that access should be provided in a timely and cost-effective manner.

The FOI Act stipulates that FOI requests must be processed within 30 days from the date of lodgement. As of December 2019, FOI refusals are at a record high of 17%, with access to information taking several months to be granted. The issue with delayed access is that several documents are, in effect, outdated by the time they are released.

Currently, the Department of Home Affairs receives more FOI requests than any other government department. In the financial year ending June 2019, the Department received a total of 15,220 requests of which 1,990 failed to be processed within the statutory timeframe. The high delays in recent years have been attributed to staffing cuts across several government departments in FOI teams over the past few years. For example, the Department of Social Services has had six FOI staff members cut since 2014-15, while the Australian Taxation Office has wiped out fifteen FOI roles since 2014. It is well established that a key factor contributing to the inability of several government departments to meet

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FOI deadlines in recent years is staffing shortages. It remains unclear whether this is a strategic position that has been adopted by the government in an attempt to limit the extent of information available to the public for security reasons. However, it is obvious that Australia’s FOI system is severely depleted, and reform is well overdue.

A key function of Australia’s FOI regime is the Australian Information Commissioner – an independent regulator for privacy and FOI. The Information Commissioner is responsible for ensuring accessibility and accountability in all aspects of the FOI process. However, the Commissioner is also responsible for matters relating to privacy and data handling, including credit reporting and data breaches. As it stands, there is no independent commissioner responsible solely for the operation of the FOI regime in Australia. A further problematic element of the current system is that there are no strict penalties for breaching the FOI Act. In most instances where a breach has occurred, the Information Commissioner will simply recommend processes to improve efficiency and reduce delays.

It is clear that Australia’s FOI system would benefit from reform to ensure that statutory guidelines are met. The current delays in relation to access of information and rejections for information are not in conformance with the overarching objectives of the law. One proposal for reform is for the Commonwealth to establish an independent Freedom of Information Commissioner, who would have the responsibility of ensuring transparency between government departments and individuals seeking access to government information. The Commissioner would also manage staffing levels and ensure that there is sufficient staff to meet workloads and public demand. A further proposal

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for reform is the introduction of statutory penalties for breaching the provisions of the FOI Act. This would place greater pressure on ministers and government agencies to ensure that they are meeting deadlines.

Ultimately, these proposals would help to ensure that citizens are able to access Commonwealth documents in a more timely and cost-effective manner.

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Social Justice Corner

Is Technology the Key to Innovating Access to Justice?

I

t would be ignorant to dismiss the idea that technology may have something to contribute to social justice. With social and political movements such as #BlackLivesMatter and #ArtsakhStrong utilising technology, and in particular social media platforms, to make a difference, these online advocacy campaigns have the capacity to encourage greater civic engagement in a range of worthwhile causes. While we are quick to identify and understand the nature of the relationship between technology and social justice in non-legal contexts, there is also an undeniable value to technology in the legal sphere.

The pursuit of pro-justice tech solutions has become instrumental in a range of legal areas, namely, to improve the accessibility of legal services in Australia. With access to justice being a fundamental pillar of the rule of law, it is integral that members of the public receive high quality legal advice that is timely and affordable, and that they also feel heard and involved in the court process. Most commonly, technology supports this in ways such as structuring courtrooms to allow parties and witnesses to appear via teleconference (audio-visual links), utilising electronic filing systems, and online interaction methods for the provision of legal advice.

It would seem that the development of new tech-based resolutions and the advancement of access to justice rightly remains a core concern for the government. In 2018, the New South Wales Department of Justice launched the Access to Justice Innovation Fund. The grants program is designed to encourage a broad range of stakeholders, including legal professionals, non-government organisations and not-for-profit organisations, to develop innovative ideas that will help improve access to justice in NSW. As part of the program, the NSW Government has invested $250,000 into designing and building a ‘chatbot’ to help 10 | The Brief

Celine Nalbandian

vulnerable people solve common legal problems with speed and ease. With Marrickville Legal Centre being the pioneer of this technology, it is intended that the chatbot will become integrated in the services provided by all community legal centres (‘CLCs’). AttorneyGeneral Mark Speakman has previously noted that the innovation could ‘revolutionise service delivery in CLCs by reducing the bottleneck of simple queries.’

Notwithstanding the possibilities offered by technology, the reality is not always perfect. As with most technological advancements, there remains a barrier to widespread tech adoption due to the challenges posed by digital illiteracy faced by some of the population, limitations to access to data, regulatory concerns and algorithmic bias. In a recent report titled, ‘Technology, Access to Justice and Rule of Law’, the UK Law Society acknowledged that technology is not the ‘silver bullet’ to making the justice and legal system more accessible. Instead, they recommend that in order for technology to improve access to justice, it has to be accompanied by an innovation strategy that is humancentric and supported by infrastructure. This means that any and all innovation should be based on the individual with legal needs and have an indication of the teams or individuals who will use it and maintain it.

While we can hope for a future in which technology may solve the myriad of challenges posed by inequitable access to justice, there is reason to suggest we should view it as one of the many tools that can be mobilised by the legal profession to develop innovative strategies for social justice.

“... in order for technology to improve access to justice, it has to be accompanied by an innovation strategy that is human-centric and supported by infrastructure.

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Devil’s Advocate

Quotas:

Should there be Mandatory Diversity Quotas to Tackle Gender Inequality in the Legal Profession?

For

 Olivia Tabbernal

G

ender equality, or the lack thereof, is undoubtedly a lingering issue in the legal profession that requires addressing. The rate of women entering the profession has increased, with women representing over 50% of the total employees in law practices in New South Wales (NSW) in June 2020. However, systemic issues remain. The gender wage gap still persists, and women continue to be under-represented in senior roles and board positions. For example, only 32% of principals of NSW law practices are women as of June 2020.

In order to stimulate gender equality, diversity quotas should be implemented in the legal profession. Although often considered a temporary tool that may ultimately become redundant, diversity quotas provide a valuable step in the right direction.

Swift Solution & Expansion of Talent Pool The establishment of quotas often involves setting penalties for non-compliance. Therefore, quotas can help achieve gender equality in shorter timeframes, as firms aim to avoid any form of punishment. For example, Norway imposed a 40% minimum quota Ed.3 2020

for publicly listed companies in 2006. Within two years of this, Norwegian companies were found to be exceeding the quota.

Further, imposition of diversity quotas has the effect of increasing the talent pool as it can force firms to conduct a wider search for candidates.

This, combined with the effectiveness and quick impact of quotas means that female representation in the legal profession can increase substantially.

This can also assist women in breaking the ‘glass ceiling’, overcoming stereotypes and biases, and securing higher roles in legal organisations.

Questionable Nature of Merit-Based Promotions in a Male-dominated Profession In theory, merit-based promotion seeks to eliminate bias and sexism. It focuses on promoting or appointing an individual based on their intellect and talent. However, in practice, merit-based promotion is questionable. Law firm culture is entrenched with male dominance, which has the effect of adversely impacting the career progression of women. ‘Merit’ is often determined within a culture where male leaders thebrief.muls.org | 11

A trickle-down effect of women’s increased representation can present younger women, who are new entrants in the legal profession, with female leaders and mentors.

choose to promote similar candidates as themselves. Given that the concept of merit is unmeasurable, quotas need to be implemented to enable merit-based promotion to be effectively assessed and analysed.

No Stigma & Positive Effects With a large quota in place, women can achieve mass representation. Consequently, women can feel included, and not marginalised. This further helps reduce negative stigma. A trickle-down effect of women’s increased representation can present younger women, who are new entrants in the legal profession, with female leaders and mentors. This can assist in reducing structural discrimination, help firms in achieving diversity and inclusion goals, and can consequently improve overall gender equality in the legal industry.

The legal profession must adopt quotas as an essential tool to achieve gender equality. Community standards are changing, and the industry must keep up and subsequently reflect community values to ensure success. Although highly debated, quotas provide the necessary platform for women to break the traditional male-dominated structure of law firms and achieve greater female representation in high level positions. Therefore, the drastic approach of mandatory diversity quotas is crucial to fast-tracking and achieving gender equality in the legal profession.

12 | The Brief

Against

A

 Abinaja Yogarajah

pproximately 50% of practising solicitors are women, but they account for 32% of principals at law firms. While the idea of affirmative action through imposition of diversity quotas could be a good solution to tackle these issues, they are not a panacea to all diversity-based issues in the industry.

Stigmatisation The stigmatisation of diversity quotas and quota-based recruitment is detrimental to achieving diversity and equality in the legal industry. Often, quota-based recruits are perceived as tokenistic or less qualified, and their achievements are quick to be dismissed. This can impact their ability to effect change in their organisation and can undermine the overall efficacy of diversity quotas.

There is ample evidence to suggest that single women in senior management roles in law firms often experience marginalisation or feel delegitimised.

Golden Skirts Phenomenon Diversity quotas are redundant when they are not linked to a broader strategic vision for diversity. A notable example is when Norway imposed a mandatory quota in 2006 that required publicly listed companies to have 40% of board members as women. Due to a lack of qualified women, a select few women known as the ‘golden skirts’ ended up being burdened with board positions at several different organisations. Thus, quotas do not address the systemic issues at hand, and in this sense appear to be more of a band-aid solution. The CEO of Maddocks, Michelle Dixon, has also spoken on this matter and expressed her rejection of hiding behind numbers in order for an organisation to appear more diverse. She believes that senior management are responsible for cultural change, and without this leadership and accountability, it is difficult to bring about real and meaningful change in an organisation.

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Quotas In Junior Roles Implementing bare diversity quotas into an organisation ignores inclusion. Diversity quotas do not necessarily foster inclusion of candidates from different backgrounds and perspectives. Moreover, when given a diversity quota, law firms could mechanically apply these numbers and seek to fulfil these quotas with recruits in junior roles. This would mean that firms would not need to give individuals from diverse backgrounds any voice in decision-making processes, nor consider any new perspectives. There is little an intern, clerk or graduate can do to challenge the status quo. Yet, this enables companies to advance their PR efforts and, in some instances, it merely serves as additional marketing material. In 2019, more than 170 General Counsels and Chief Legal Officers drafted an open letter urging for greater diversity in corporate partnerships. Here, they expressed their frustration ‘that many law firms continue to promote partner classes that in no way reflect the demographic of entering associate classes.’ Framing Diversity Efforts Organisational change is always difficult. The semantics used to describe affirmative action plans or diversity quotas matter. The way these efforts are framed in an organisation contributes to how they will be perceived.

For instance, simply stating that certain groups are underrepresented typically incites negative sentiments.

The Institute for Gender + The Economy delved into the diversity quota debate and considered psychological research which showed that when a task is being forced upon an employee, they become less motivated due to its association with coercion. In applying this theory to

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diversity quotas, they found that the external pressure imposed by such quotas had a negative impact on the perception of women recruited via quotas, even amongst the employees who ordinarily believe in furthering diverse and inclusive workplaces.

Single Factor Quotas The issue of intersectional diversity and inclusion is often ignored when diversity quotas are imposed on an organisation. Quotas based on single factors such as gender ignore the complex systemic problems that society faces. In the wake of the Black Lives Matter movement, many companies provided assurances and instituted targets to increase the representation of people of colour in their recruitment. While these are certainly stepping in the right direction, many diversity efforts were narrow and failed to consider the intersectional diversity issues faced by people from underrepresented communities.

“While these are certainly stepping in the right direction, many diversity efforts were narrow and failed to consider the intersectional diversity issues faced by people from underrepresented communities.

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P

resident Donald Trump is not really sick with coronavirus.

It is just a political strategy. Or just a small part of a grand plan to arrest Hillary Clinton, who is leading Democratic politicians and Hollywood’s elite in a global child trafficking ring, as followers of QAnon would have you believe. That being said, we have also heard that the pandemic is in fact a ‘plandemic’, created by Bill Gates and Big Pharma so that they can implant trackable microchips on a global scale under the guise of a vaccine. Or, the pandemic is real but coronavirus symptoms are actually caused by the toxic effects of bird-killing, tree-felling and cancer-causing electromagnetic radiation emitted from the erection of the 5G network.

To some, this may sound ludicrous and laughably far-fetched, but fake news and conspiracy theories have promulgated throughout social media with breathtaking speed as of late, garnering widespread attention. The World Health Organisation has aptly titled this overabundance of misinformation and conspiracy theories an ‘infodemic’, adding that fake news spreads faster than the virus and is equally dangerous. Accordingly, a recent study found that of 112 million public social media posts related to the pandemic, 40% came from unreliable sources. A survey conducted in the US showed that 29% of respondents believed that the threat of COVID-19 was exaggerated to damage Donald Trump’s reputation and 31% thought the virus was purposefully created and spread. In April this year, nearly half of the British population believed that COVID-19 was man-made in some way.

This whirlwind of lies and misinformation is also perhaps a feature of our ‘post-truth’ world, in which objective fact yields to emotion and personal belief.”

14 | The Brief

Lockdown-induced boredom and the uncertainty posed by the pandemic have created the perfect storm for this. This whirlwind of lies and misinformation is also perhaps a feature of our ‘post-truth’ world, in which objective fact yields to emotion and personal belief.

However, the advent of social media has undoubtedly played a significant role in accelerating both the reach of conspiracy theories and the speed at which they can spread. Individuals tend to be influenced by the media that they consume, particularly where they see others promoting or sharing this information.

On social media, this means that the number of shares or retweets on a post is often treated as a proxy for credibility. This can have harmful effects in that it not only polarises certain groups and creates echo chambers, but it also has little basis for being used as a measure of its veracity. For example, ‘virtue signalling’ involves sharing or retweeting information to indicate membership of a group, regardless of whether its contents have been read and endorsed. Bots can also share and circulate information to falsely promote a piece and create fake ‘grassroots’ movements. Trending information, perceived as synonymous with credible information, can therefore be accepted as truthful by consumers. Clickbait, hyperboles and misinformation thus can distort the media landscape through these ‘engagement’ metrics.

What are conspiracy theories and how are they harmful?

Conspiracy theories attempt to explain significant social or political events involving secret plots by two or more actors perceived to be powerful and malevolent. These theories often give oversimplified, illogical accounts in the face of major events which create uncertainty or unease. They can change beliefs and drive actions, sometimes with insidious effect. Conspiracy theories are linked to negative attitudes and prejudice against certain groups, particularly by reinforcing a ‘them’ Ed.3 2020

Critics have pointed out that this has led to social media companies becoming increasingly self-regulating and overly cautious, leading to greater censorship, which is equally undesirable.” versus ‘us’ dichotomy in majority and minority groups.

For example, a 2012 study found that white U.S. participants who had negative contact with African Americans also questioned Barack Obama’s citizenship and his eligibility for presidency. Conspiracy beliefs can also influence poor health choices by supporting scepticism of advances in scientific research. Conspiracy theorists who endorsed the belief that health officials were hiding from the public that cell phones cause cancer had a greater preference for alternative, unconventional medicines and vaccine refusal. Similarly, over a third of Americans agree that global warming is a hoax, making it a mainstream belief. Therefore, the denial of science has been said to go ‘hand in hand’ with conspiracy beliefs.

Conspiracy theories also pose a significant threat to democracy. Believers fixate and vote on potentially groundless issues whilst disregarding or disbelieving genuine issues requiring immediate attention from society. The term ‘fake news’ quickly came to define the 2016 U.S. election as various posts circulated social media, including some alleging that Donald Trump called Republicans the ‘dumbest group of voters’.

Others suggested that Hillary Clinton had accidentally paid the Islamic State group $US400 million. This was also an issue in Australia’s 2019 federal election: as fake news disseminated across Facebook that the Labor Party planned to introduce a death tax, the Liberal Party adopted this in an authorised attack ad. With clear potential to influence millions of people and cause harmful effects, the question arises how we ought to regulate the dissemination of conspiracy theories.

How should we regulate conspiracy theories?

Countries such as Germany, Malaysia, France, Russia and Singapore have already passed laws against fake news, though they have not escaped criticism. In Singapore, the government is able to determine what constitutes fake news and can order its removal if it broadly conflicts with the public interest. Malaysia has criminalised fake news, punishable by up to Ed.3 2020

$AU171,000 and/or six years imprisonment. These approaches are said to be undesirable as they have ‘chilling effects’ on internet freedom, vest too much power in public institutions by allowing them to be the final arbiter of ‘truth’ and undermine freedom of speech.

Censorship also poses difficulties in enforcement as distinguishing between legitimate and illegitimate information is increasingly difficult. Germany has adopted an approach which places the responsibility upon social media platforms to remove content which is ‘obviously illegal’, such as hate speech or defamation, within a strict 24 hour timeframe. Those who offend this provision face fines of up to 50 million euros.

Critics have pointed out that this has led to social media companies becoming increasingly self-regulating and overly cautious, leading to greater censorship, which is equally undesirable. Alternatively, the European Union passed a voluntary Code of Practice on Disinformation in 2018 which encourages transparency in political advertising and demonetises those who disseminate misinformation, though some believe it to be too lenient in practice.

Despite the difficulty in policing misinformation, the need to do so is becoming increasingly pertinent.

Netflix’s new docudrama The Social Dilemma shrewdly observes that social media giants have successfully crafted a formidable web of confirmation bias.

Algorithms and technology are used to create ‘individually curated rabbit holes’ or ‘2.7 billion “Truman Shows”’ which manipulate consumer behaviour and warp our shared perception of reality.

Fact and fiction are now more indistinguishable than ever before. Thus, as the pandemic continues to unfold, the infodemic has emerged as another foe which requires our attention.

“... as the pandemic continues to unfold, the infodemic has emerged as another foe which requires our attention.

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Technology &

People with Disability – The ‘Great Equaliser’ or Deepening Inequalities?

Patric Phelan

16 | The Brief

T

echnology empowers us to live more connected and productive lives; it is fundamental for communication, independent living and participation in community life. This is particularly the case for the almost one in five Australians with disability, for whom technology is often an enabling right – a right which facilitates the realisation of other human rights. It is essential that people with disability can access technology on an equal basis with others, in order to see other fundamental freedoms (such as the rights to work, education, and freedom of expression) protected. This has never been clearer than today, in the midst of a global pandemic which shifted the worlds of work, study and the arts online virtually overnight.

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“With regard to technology, some of the changes implemented as a consequence of the pandemic have benefitted people with disability, but for others it has imposed new barriers to achieving the rights to work, education, and freedom of expression.

Australians with disability possess human rights which are enshrined in international law through treaties and given effect in domestic law through legislation. The United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) imposes obligations on States to take measures to ensure that these rights are protected, promoted and enforced. The Disability Discrimination Act 1992 (Cth) (‘DDA’) facilitates the realisation of these rights by prohibiting discrimination on the basis of disability. Article 9 of the CRPD requires that States take appropriate measures to ensure the accessibility of information and communications technologies (‘ICT’) for people with disability. This is an important provision because inaccessible ICT can be a major form of employment discrimination.

The Australian Government has declared that it is committed to ensuring online services are accessible and inclusive, however, the Committee on the CRPD has urged Australia to do more to implement the full range of accessibility obligations under the Convention.

Digital technology has the potential to be a great equaliser, supporting the autonomy and inclusion of people with disability. Unequal access to technology will only serve to widen existing employment, education, and social inequality. The societal shifts brought about

by COVID-19 have given the need for accessible digital technology greater urgency.

The COVID-19 pandemic has rapidly and dramatically changed our way of living, with the implementation of strict public health measures to minimise the risks of infection. Everyone has been restricted in some way, however, people with disability have suffered disproportionately. As the Chair of the Disability Royal Commission, Ronald Sackville QC, observed at the August public hearing, ‘In one sense we are all in this together. But we have not all been affected equally’. People with disability have experienced challenges obtaining support, increased incidents of abuse and violence, and been left feeling confused, forgotten, and expendable. As a society we’ve failed to uphold a number of essential rights, and some measures have impacted certain groups particularly hard. For example, mandates on the wearing of masks have presented major difficulties for people with a hearing impairment, as they rely on lipreading and facial Ed.3 2020

expressions to communicate. With regard to technology, some of the changes implemented as a consequence of the pandemic have benefitted people with disability, but for others it has imposed new barriers to achieving the rights to work, education, and freedom of expression.

On the one hand, the shifts in employment and education towards remote working and learning from home have been welcomed by many people with disability who have long advocated for more flexible conditions. It has also benefitted other groups such as those living in rural or remote areas and those with parental or carer responsibilities. This societal change has also opened up more opportunities to participate in cultural and community life. When COVID-19 shut down the arts and entertainment industries, many organisations moved online. This allowed people to access virtual tours of museums and art galleries, theatre performances, and live music streams from musicians’ homes – all online. It also moved community events and religious services to online platforms. For many people with disability, including those with limited mobility, these activities became accessible for the first time through digital technology.

While there have been a range of benefits in moving to the online world, not everybody has access to technology that enables them to work or learn from home, and not all aspects of remote employment and study are provided in accessible formats, programs and applications. For example, virtual meetings and telephone conference calls can present serious challenges for employees with a hearing impairment, as can remote lectures and tutorials for students when they are not captioned or accompanied by textual presentations. People with a vision impairment have also faced difficulties using their employer or educational institution’s online platforms and accessing materials.

Screen reader software has made many websites accessible, however, a significant proportion of web content is unnavigable or unreadable, including scanned documents (as opposed to digitally-native content).

The Australian Bureau of Statistics reported that people with disability already experience poorer outcomes in educational attainment and employment than the general population, and these kinds of digital accessibility issues are threatening to exacerbate existing inequalities. thebrief.muls.org | 17

While digital technologies have transformed the lives of many people with disability and the opportunities available to them, there are others who are excluded or face significant obstacles to accessing these benefits. It is important that Australia’s laws, policies, and regulations are appropriate and effective in removing barriers to accessibility if we are to fulfil our international and domestic obligations and ensure that people with disability can participate in all areas of life on an equal basis with others.

The Australian Human Rights Commission has embarked on a project examining how new and emerging technologies may affect human rights now and into the future. The Human Rights and Technology Project will develop a roadmap for reform, specifically addressing digital accessibility. A discussion paper released in December 2019 proposed a range of preliminary recommendations, including: the formulation of a Digital Communication Technology Standard under s 31 DDA; requirements for increased audio description and captioned content on commercial, national and subscription broadcasters; consideration of a concessional broadband rate for people with disability; and the adoption of a ‘human rights by design’ approach

by governments, tertiary institutions, and the science and technology sectors in the development and delivery of digital technologies. These are just a sample of the reform ideas which would employ technology as an effective mechanism to achieve substantive equality for people with disability. The Human Rights and Technology Project is in its second phase of consultation, and is expected to release a final report this year.

Technology has played an important role in improving the quality and productivity of the lives of people with disability, enabling greater autonomy, participation, and inclusion. Unfortunately, it has also excluded others, and can represent another barrier to equality and the realisation of a range of human rights. In some respects, COVID-19 has exacerbated the extremes, both levelling the playing field and also imposing additional hurdles. Accessibility must be prioritised in discussions about technology law and policy to ensure that people with disability in Australia are empowered to exercise control over their lives and achieve their full potential. And as society re-emerges into the physical world, we must ensure inclusion is the new normal, not something we leave behind.

And as society re-emerges into the physical world, we must ensure inclusion is the new normal, not something we leave behind.”

18 | The Brief

Ed.3 2020

Climate Litigation: Suing for Climate Justice

C

Cassandra Maclachlan

limate change is real and it’s happening now.

Nine out of ten of the hottest Australian summers on record have occurred within Anjali Sharma’s lifetime.

She’s only in Year 10. This record-breaking streak culminated in the catastrophic bushfires of late 2019, prompting Sharma and other concerned students to launch a class action against the Australian government.

Just a few years prior, another youth-led climate case was underway in Pakistan. Ashgar Leghari, a law student from a drought-stricken farming family, asserted that, by not taking sufficient adaptation measures, his government was failing to uphold his constitutional rights.

Although separated by time and geography, these cases share a key commonality: their necessity despite the existence of international climate change treaties.

Before our applicants were born, the world’s nations signed the United Nations Framework Convention on Ed.3 2020

Climate Change (‘UNFCCC’). Its stated goal: the safe, equitable and timely ‘stabilization of greenhouse gas concentrations in the atmosphere’. However, emissions have since only continued to accelerate to unprecedented levels. Amidst this chronic inaction, climate litigation has emerged as an invaluable tool to agitate for climate justice.

Climate justice?

Climate justice is as broad as it is complex, but a formulation useful to the climate litigation discussion is one advocated by Dr Jeremy Baskin, Senior Fellow of the Melbourne School of Government. It demands

“Nine out of ten of the hottest Australian summers on record have occurred within Anjali Sharma’s lifetime. She’s only in Year 10.

thebrief.muls.org | 19

Global trends in climate litigation hold up a mirror to all these shortcomings, with the prospect of remedial enforcement against State and corporate entities being restricted to domestic courts.”

engagement on two fronts. First, the ‘disjuncture between responsibility for climate change and its impact’.

Second, the paradox that those most affected by climate change possess the least capacity to cope. Basically, unless affected parties have a venue in which to pursue redress for negative climate impacts, their diminished ability to cope remains unaddressed.

The problem of neutral framing These twin demands of climate justice take a back seat in the text of the UNFCCC. Hewing to the principles of international comity and cooperation, it avoids language around State liability despite ‘noting’ that the largest share of historic and current emissions originated with developed countries.

Further exacerbating the responsibility/impact disjuncture, the UNFCCC frames emissions at the country-level only and makes no demands of major polluting corporations. Despite knowing the disastrous implications of their trade as early as the 1980s, the fossil fuel industry had no accountability under the framework. Instead, it instigated a campaign of disinformation and aggressive lobbying to combat any threats to their profits.

Given this history of interference, it was no wonder that NGOs walked out of the 19th Convention of the Parties under the UNFCCC (COP). Defending the walkout, Hoda Baraka, Global Communications Coordinator for 350.org, argued that coal interests had been allowed to use COP19 as a greenwashing opportunity, undermining any meaningful treaty-making progress.

Non-State actors would not be included in the scope of formal international climate action until 3 years later at COP21—and only on a voluntary basis.

Global trends in climate litigation hold up a mirror to all these shortcomings, with the prospect of remedial enforcement against State and corporate entities being 20 | The Brief

restricted to domestic courts. While the majority of climate cases feature government respondents, corporations are increasingly being taken to task for their contribution to global warming.

The role of courts in climate law The surge in strategic litigation is not without detractors and procedural difficulties. Professor Donald Kochan of Chapman University is critical of the trend, holding that courts are neither well-equipped nor constitutionally empowered to make new law or policy.

David Bookbinder, Chief Counsel for the Niskanen Centre, insists, however, that climate cases do not seek to usurp the role of the executive or the legislature.

Also pushing back against accusations of judicial overreach, Tessa Khan, cofounder of the Climate Litigation Network, maintains that ‘courts are reaching decisions in accordance with existing law and science’.

The science has been a sticking point. Historically, the satisfaction of evidentiary burdens has been a stumbling block in climate cases and polluters are keen to emphasise complexity to avoid liability.

Real corporate responsibility?

But the tide is turning.

Saúl Luciano Lliuya, farmer and mountain guide from the Peruvian city of Huaraz, is suing RWE, Germany’s largest energy provider, for its proportionate impact on his property. Huaraz, nestled at the base of the Andes, is threatened by devastating flooding from an upstream mountain lake. Glacial melting driven by warming temperatures has caused the basin to swell to 17 million cubic metres of water, necessitating round the clock maintenance of the city’s emergency warning systems.

Lliuya is relying on cutting-edge attribution science exemplified by the ground-breaking Carbon Ed.3 2020

“‘Lawsuits are not a panacea,’ says Khan. ‘It takes significant public vigilance and pressure to ensure that judgments translate into real change.’

Majors Report. The report, which found that just 100 companies are responsible for 70% of emissions since 1988, places RWE at number 37 on that list, with a proportionate contribution of 0.5% overall.

Guido Steffen, spokesperson for RWE, stresses a distinction between responsibility and culpability. He emphasises climate change as a ‘global problem’ and believes it’s impossible to accurately trace emissions to any single emitter.

The German Essen Court disagrees. It recently accepted the premise that a company may be liable if found in fact to be responsible for the damage caused by its emissions. That the case has progressed to the evidentiary phase is regarded by Dr Roda Verheyen, Lliuya’s lawyer and co-founder of the Climate Justice Programme, as its most significant triumph with farreaching implications for subsequent litigation: ‘I have already won, legally’.

The impacts of climate litigation COP26 has been delayed until 2021 due to COVID-19.

For climate justice advocates like Dr Saleem Huq, director of the International Centre for Climate Change and Development, progress under the UNFCCC stalled long before the pandemic hit. Citing developed countries’ failure to reduce pollution and set up adequate compensatory schemes under the framework, Dr Huq states, ‘The courts are the only other avenue we can take.’

Legal scholars say it’s too soon to definitively gauge the value of climate litigation, but its effects are already being felt in courtrooms and beyond. Governments and corporations alike have been put on notice.

Leghari won the case against his government in the Lahore High Court. Justice Syed Mansoor Ali Shah condemned the government’s ‘delay and lethargy’ in implementing the adaptation measures Ed.3 2020

needed to protect its citizens’ fundamental rights to life and dignity.

Sharma’s case follows a similar track. Seeking an injunction to prevent the expansion of a coal mine in rural New South Wales, the youths claim that the Minister for the Environment owes young people a duty of care. To fulfil that duty, they say, the coal must stay in the ground.

‘Lawsuits are not a panacea,’ says Khan. ‘It takes significant public vigilance and pressure to ensure that judgments translate into real change.’

Sharma seems to be aware of the profile-raising value that her class action represents. ‘Even if we don’t get an injunction from the Minister, the biggest thing about this case is that we’re building support, we’re building momentum.’

The grownups were meant to have solved this problem by now. After over 25 years of empty rhetoric, it’s no wonder that young people are harnessing the power of the courts to try to wrest back their futures.

People under the age of 18 may express their interest in joining the class action (equitygenerationlawyers.com/cases/ sharma-v-minister-for-environment).

Everyone else is encouraged to support their social media campaign (instagram.com/ classaction4climate).

thebrief.muls.org | 21

Should Australia take a Gamble on Las Vegas’ Zonal Taxation Success?

Alexander Moore

U

nbeknownst to many admirers, the ‘strip’ in Las Vegas, where the world-renowned casinos and tourist attractions are, is located several kilometres outside the southern city limits of Las Vegas in the town of Paradise, Nevada.

Development occurred and continues to happen there in the middle of the Mojave Desert because it is outside the city of Las Vegas’ taxation radius. Here, economic activity and investment are more attractive because of the lower sales and other taxes. This environment has contributed to the region’s emergence as a thriving economic powerhouse. What was formerly arid and unpopulated desert nearly doubled its population in the 1990s, continues to experience rapid growth and has cemented itself as one of the world’s premier tourist destinations.

Whilst the United States’ tax system is very different to Australia’s, the principle of zonal taxation may 22 | The Brief

provide the key to unlocking our economic potential as a nation. A NSW parliamentary committee conducted an ‘Inquiry into Zonal Taxation’ as recently as 2018 which recommended that the government adopt various regional NSW tax offsets. Even more recently, Australia has just entered its first recession in almost 30 years and its deepest since the 1930s. To get the economy moving again, the government has announced enormous government spending. This spending will contribute to a projected $213.7 billion deficit in the 2020/2021 financial year, the largest since World War Two. If Australia were ever to consider an innovative and alternate solution to bring long term prosperity, it seems now is as fitting as ever.

USA and Australian Taxation In the USA, businesses are bound by federal, state, county and city taxes which vary widely depending on their location. Generally, a business’ corporate tax rate Ed.3 2020

What was formerly arid and unpopulated desert nearly doubled its population in the 1990s, continues to experience rapid growth and has cemented itself as one of the world’s premier tourist destinations.� is determined at a national level, with each of the other levels of government specifying various sales, property and other taxes. The theory behind this system is that market dynamics will act as a limitation on the power of the multiple levels of government. Hypothetically, if an individual or business feels that a city, county or state mismanages its tax revenue, is underperforming or charges taxes which are too high, it is free to move away from that area. By extension, the best governments will increase their local populations, garner more public support and thereby remain viable into the future through their economic success.

Ed.3 2020

The Australian taxation landscape does not operate in this manner. GST, the equivalent of American sales tax, is uniform across the nation, with state governments surviving primarily on payroll taxes, land tax and stamp duty, and local governments only collecting council rates. There is less variation, especially at the micro level, and Australian state and local governments are very dependent on federal funding.

Economic Prosperity Zonal taxation might assist Australia’s attempts at luring foreign investment and corporate activity by making areas of Australia more attractive business environments. In the Asia-Pacific region, Australia competes with many other countries for this kind of investment which generates economic activity. Many countries have lower corporate tax rates than Australia and are therefore a more attractive proposition to thebrief.muls.org | 23

Zonal taxation might assist Australia’s attempts at luring foreign investment and corporate activity by making areas of Australia more attractive business environments.”

corporations as they provide potentially more profitable operating environments. Singapore, Malaysia, Indonesia, China, India and South Korea, for example, have lower corporate tax rates than Australia.

Both foreign and corporate investment are crucial to the future economic prosperity of Australia as they create both direct employment for Australians, generate additional tax revenue and sometimes lead to infrastructure and other upgrades. They also generally increase economic activity which can benefit other Australian businesses, consumers or employees indirectly. These second and third order consequences are less easily quantifiable but just as beneficial to Australia as a whole.

On the domestic front, increased economic activity in regional areas is beneficial for the connectivity of the Australian economy and could assist in creating efficiencies. Where more regional businesses exist, other regional businesses will benefit from having goods and services which they might need closer to their premises.

This phenomenon will translate to increased or more efficient output, and thereby more profit. The macro effect of this is that Australian businesses become more competitive in the marketplace. More regional businesses will also increase local competition for goods and services, thereby lowering prices. Demand increases could even lead to infrastructure upgrades which create further efficiencies by reducing travel or delivery times.

The snowball effect of economic activity is significant.

Moreover, for residents of regional areas, one of Australia’s greatest weaknesses is that its population is Sydney, Melbourne and South-East Queensland centric. It places residents of regional areas at a comparative disadvantage in terms of the breadth and depth of opportunities they are afforded. In practice, this creates significant differences: unemployment is higher, there are fewer schools, fewer hospitals, fewer specialist doctors, fewer universities etc.

Whilst regions undeniably have their advantages;

24 | The Brief

greater economic activity would complement those advantages by bringing new facilities, goods and services closer to home.

Housing Affordability Zonal taxation could also potentially provide the antidote to Sydney’s housing affordability crisis.

Causes of this crisis are plentiful. Pundits often cite negative gearing, foreign investment and an aging population preferring not to downsize as the causes of this unaffordability. Arguably, Sydney’s geography is the greatest contributor. Its national parks and bodies of water to the North and South, mountains to the West and ocean to the East create a restriction on the land that is available for housing. Unlike in other cities, Sydneysiders can’t continue to move to the outer suburbs seeking affordability as the suburbs stop at these geographical features.

By decentralising Australia’s economic activity, market dynamics will be brought back to Sydney housing by relieving the constraints on housing supply.

Increased employment opportunities, combined with the benefits of regional living and lower living expenses, will become a more attractive proposition to Australians. By enhancing the value of the alternative, more Sydneysiders will be incentivised to move to the regions. In turn, this dampens demand for Sydney housing, assisting in the housing affordability crisis.

To some, the purported positive effects of zonal taxation might seem overstated. To those readers, I would redirect their thoughts back to the story of Las Vegas. Whilst economic prosperity was not built instantly, over several decades, a dusty and barren dessert became a business mecca. If the government were to follow the recommendations of the parliamentary inquiry’s 2018 report, there is no reason that Australia couldn’t transform its inland desert into something equally as magnificent.

Ed.3 2020

Fighting ‘Illegitimacy’ with Illegitimacy:

An Analysis of How Legislative Attempts to Silence Animal Activists are Counterproductive

F

Simon Brannigan

or those concerned about the plight of farmed animals in Australia, it is easy to be sceptical about a brighter future when one considers the current inadequacies in the legal framework. Animal welfare laws are both substantively weak and poorly enforced in Australia, owing primarily to the Department of Primary Industry’s position as ‘regulator’ and ‘promoter’ of the agricultural industry (‘the industry’) – responsibilities which inevitably conflict. Fortunately, animal activist organisations play an integral role in ensuring animal welfare standards are enforced by uncovering and publicising systematic breaches to our community – and this often stimulates subsequent law reform. However, Ed.3 2020

State and Federal governments have recently introduced controversial laws that bear important similarities to US style ‘ag-gag laws’, as the laws seek to ‘gag’ the ability of activists to record and publicise industry breaches. This is because the industry and the Government perceive these acts of activists as ‘illegitimate’. This article, however, will argue that legislative attempts to silence activists are even less ‘legitimate’, as the effect of the legislation dismisses (rather than serve) the public interest in high animal welfare standards. Additionally, these laws also signify an undue departure from industry accountability and transparency, leaving us, the consumers, to question what it is that the industry has to hide. Taken together, these issues suggest that it may thebrief.muls.org | 25

In fact, numerous improvements to animal welfare standards and codes of practice, however slight, have occurred as a result of covertly obtained footage from activists.” be more appropriate for the industry and Government to take a more proactive approach towards animal welfare into the future!

You may have seen or heard about the horrific, yet routine, practices that take place within the live export industry. If you have, there is a good chance that your awareness owes itself to the widespread media attention and community outrage that persists today after an activist organisation, Animals Australia, captured and published raw footage of the conditions of a live export ship in 2011. How else would you know about the internal operations of a ship situated in the middle of the ocean, en route to the Middle East – especially, when its passengers are voiceless?

This kind of footage was, and still is, extremely important for informing subsequent law reform in the live export industry, and the same holds true for all other areas of intensive farming where activists have uncovered routine husbandry practices and welfare ‘standards’ that are out of step with community values and expectations. In fact, numerous improvements to animal welfare standards and codes of practice, however slight, have occurred as a result of covertly obtained footage from activists. This clearly indicates that Australians have an interest in higher animal welfare standards and industry transparency.

Nevertheless, the activities of animal welfare activists aren’t always viewed as legitimate itself, especially not by the industry. The relationship between the industry and animal welfare organisations has become increasingly adversarial, with community values and expectations surrounding higher animal welfare standards caught in the crossfire. This is alarming for two reasons. Firstly, it is quite apparent that we cannot rely on the current system of governance to meaningfully administer animal welfare laws. This is because the government Department responsible for doing so has become ‘captured’ by the industry, meaning that enforcing and improving animal welfare standards is perceived as a negative externality or inconvenient fetter on economic productivity.

Secondly, the current adversarial landscape has pushed State and Federal governments to pass controversial ‘ag-gag’ style laws, which criminalise all forms of unauthorised entry onto commercial agricultural 26 | The Brief

premises. Whilst the rationale for these laws is said to be to protect farmers and prevent biosecurity risks, the effect of these laws severely diminish media scrutiny of industry practices, resulting in a reduction in industry transparency and accountability. They are also said to have a ‘chilling effect’, meaning that they disincentivise the sharing of important information and undermine opportunities for democratic policy deliberation on issues of animal welfare.

Whilst there is no doubt Australians have an interest in protecting farmers and preventing biosecurity risks, these laws do not balance these interests fairly with Australian’s interests in higher welfare standards.

The failure to balance competing interests is most evident in the ag-gag style law in Australia – Section 474.46 of the Criminal Code Act 1995 (Cth). This provision was inserted into the Act in September 2019 by the Criminal Code Amendment (Agricultural Protection) Bill 2019 – and according to the AttorneyGeneral – it responds to increasing concerns about trespasses on agricultural premises. In simple terms, the provision makes it an offence to distribute materials using a carriage service with the intention of inciting others to trespass onto agricultural land. Whilst the provision is seemingly ‘fair’ as it arguably seeks to protect the reputation and safety of farmers, various submissions put to the parliamentary inquiry of the draft bill, voiced concerns on how the law would reduce the powerful role that activists play in ensuring the industry complies with welfare laws. This was not the only concern. The Law Council of Australia argued that such a law may be inconsistent with the Commonwealth Constitution – an argument which may suggest that there is some light at the end of the tunnel for those concerned about the plight of animals!

All citizens have an implied freedom of political communication derived from the Australian Constitution. As such, any laws passed by Parliament which infringe this freedom are invalid (unless they are deemed to be ‘reasonably appropriate and adapted to serve a legitimate end’ compatible with the Constitution). Even if the protection of farmers and their livelihoods is considered a legitimate end, the laws, could nevertheless, be an overreach. This may be the case if what is reasonably appropriate in Ed.3 2020

“Whilst there is no doubt Australian’s have an interest in protecting farmers and preventing biosecurity risks, these laws do not balance these interests fairly with Australian’s interests in higher welfare standards.

achieving the protection of farmers and their livelihoods is considered in light of its potential to reduce public democratic deliberation and debate. Indeed, Justice Kirby in a significant decision of the High Court of Australia (which dealt with the lawfulness of an activist organisation publicising footage obtained from a possum meat processing plant) expressed: ‘The concerns of a governmental and political character must not be narrowly confined. To do so would be to restrict, or inhibit, the operation of the representative democracy that is envisaged by the Constitution. Within that democracy, concerns about animal welfare are clearly legitimate matters of public debate...’

Taken together, this suggests that the Government may need to step up to the plate and take a more proactive approach towards animal welfare in the agricultural sector. If the status quo prevails, there will always be a role for activism and vigilantism because Ed.3 2020

of the lack of any real improvements to animal welfare standards and enforcement of the law. The significance of this is that the industry and activist organisations will continue clash heads, leaving consumers to further speculate on the industry’s legitimacy.

As it remains, ag-gag laws will not remedy this problem. They are potentially invalid, and they seek to actually prompt and legitimise activities of activists as the law unduly silences activists. Perhaps, then, the best way to promote the interest of the industry is by introducing more meaningful reforms which satisfy the competing interest of those concerned with animal welfare. To achieve meaningful reform, the government will need to decouple the competing responsibilities of promotion and enforcement, and create a national independent statutory authority with responsibility for enforcing animal welfare. Through adequately balancing these interests, we will, hopefully, be able to see positive changes in the future.

thebrief.muls.org | 27

A Brief Conversation

With

Sam Burrett Associate Commercial Director at Plexus, Distinguished Fellow at the College of Law Centre for Legal Innovation, Podcast Host and Author at the Leading Lawyer Project.

Olivia Mueller

S

am Burrett isn’t your typical lawyer. Once a gym owner and today a lawyer by training, Sam calls himself ‘a relationship builder and entrepreneur at heart’. Working at the intersection of law, technology and business, Sam is passionate about progressing the legal industry by advocating for progressive legal business models and integrated legal technology.

Sam’s work at Plexus is centered around building Australia’s leading dynamic legal resourcing firm, and he also previously worked at LegalVision, a commercial law firm disrupting the market with its commitment to innovation.

28 | The Brief

I caught up with Sam to discuss his passion for doing law differently, what changes the legal profession is facing in light of technological advancements, and how best Macquarie law students can equip themselves with the skills required to thrive in a changing legal landscape.

The Brief would like to thank Sam for his time, and his invaluable insight into NewLaw and the intersections between law and technology.

Ed.3 2020

Could you share with us a bit about your journey from Law School to where you are today? Why are you so passionate about doing law differently?

I was really fortunate to get a job pretty much as soon as I finished Law School. I actually had very little experience while I was at Law School because I owned and was running a gym, and so while I was going through Law School, I had really good experience in the trials and tribulations of small business ownership.

I originally started the gym because I thought it’d be a great way to pay my way through uni and earn a bit more than the $25 per hour that I was getting paid as a personal trainer. It turns out that owning a business is a bit more complicated and time consuming than that, and so I learnt a lot about how businesses are run, which really shaped my interest in law. I was never really particularly interested in large corporate law and I didn’t ever have dreams of working in a top tier firm.

Instead, I was actually really keen to work with startups and small businesses to help them overcome some of the challenges that I had faced. I also knew that I didn’t want to practice traditional law because I have Ed.3 2020

always had an interest in technology and the way that the world is changing. So, as a result, I was sort of drawn to what was then the early new law movement.

And there weren’t a lot of law firms around like that at that time.

I was really lucky that I personal trained somebody who was a senior executive at one of the big banks, and he introduced me to one of the co-founders of LegalVision. I wasn’t super sold until I met Ursula Hogben, who is an absolute force to be reckoned with in the law and a really impressive human. She told me all about LegalVision, their mission and why they were trying to change the legal industry, and absolutely sold me on the dream. I was really fortunate from there to get through to their application process and join their graduate program. That was my first foray into the law, and I’ll dive into that a little bit more in the later questions. But that is how I got from Law School into the law, and it kind of started my passion for doing law differently - being surrounded by people who were passionate about that, but also recognising through my experience at the gym that the client experience of the thebrief.muls.org | 29

legal industry is very different to the lawyer’s experience of the legal industry; that’s always kept front of mind for me and has guided the way I approach the law and the changes in the industry.

The term ‘NewLaw’ has become a bit of a buzzword. For those who aren’t so sure what this term really means, how would you characterise NewLaw? This is a tricky one because no one owns the term NewLaw, although I believe it was coined by Erin Chin who is a Principal at a firm called Alpha Creates which is a consulting firm that helps law firms and legal departments become more efficient. I would also say that George Beaton who is one of the industry’s key thought leaders and one of the most important people thinking about how to practice law differently, had a really big hand in coining the term with his book ‘NewLaw, New Rules’. They are big heavyweight thought leaders who have put a lot of thought into what this term means, but to me there are probably two ways I think about NewLaw. Firstly, there is a reactionary element of NewLaw. It sits in reaction to big law or traditional law, so that includes reaction to the partnership model, reaction to the way legal services are delivered and a reaction to the way that firms are run, including the way employees engage with those kinds of reactive elements and NewLaw. There’s also a proactive element to NewLaw as well which is, NewLaw firms are future focused firms, they are thinking about what technology is coming down the pipe, and how that might be relevant, what innovations we can take from other industries or other professions, whether that’s marketing and business development or technology and consulting, and how can we bring them into the legal industry. There are all sorts of things involved with the proactive element, but I’d say that the reactive and proactive elements are an important part of understanding what NewLaw is. Increasingly, we’re also seeing NewLaw become a part of what traditional law firms do as well. For example, we’ve seen the rise of PwC’s NewLaw department. So, they have a legal services arm where they deliver traditional hourly billed legal services, and they have a NewLaw arm where they do legal operations consulting. Similarly, Herbert Smith Freehills, the largest law firm in the world, they have an alternative legal services arm, and so [NewLaw] is hard to categorise because it’s now being adopted by the traditional players but there’s definitely that reactive and proactive element to it.

30 | The Brief

LegalVision refers to itself as a market disruptor in the commercial legal services industry. Could you tell us about the way that LegalVision is reimagining traditional legal practice?

There are so many ways that LegalVision is doing law differently, but I’ll touch on a few of the key ones that underpin all the other different features. The first is that LegalVision runs a different legal business model to a traditional law firm. Traditional law firms are set up in a partnership structure which has its own problems and benefits. LegalVision is an incorporated legal practice, which is really significant because it’s one of the first law firms in Australia and one of the leaders in the world in raising capital. It’s historically been very hard and prohibited by regulations for law firms to get outside investment outside debt from a bank, but LegalVision has been able to do that not just because they are an incorporated legal practice, but also because they have technology, new ways of working and new ways of organising legal businesses that make their business investment-worthy.

An investment model totally changes the way that you operate a law firm; it’s not operated in the traditional partnership where there’s a lot of traineeship involved Ed.3 2020

which means there’s a drive for efficiency because the people who run Legal Vision are beholden to investors.

They have a motivation to do things differently for the benefit of clients ultimately, that is simply not present in the partnership model. I think all the great things they do flow on from there: they cut out their overheads and allow most of their lawyers to work remotely online, although they do have an office; they invest very heavily ahead of the curve in great talent and technology which means they are able to continue innovating. They also publish free content online which has made them the most visited

website in Australia for legal questions; they have the biggest piece of online real estate and all of that is made possible because they have an entirely different way of thinking about how you should run a law firm.

I understand that in your role at Plexus you have worked with some of Australia’s top General Counsel and in-house legal teams. How do you leverage technology to help these teams improve their in-house legal functions?

I’m really lucky to work with Plexus. Not only do we have this amazing book of clients; forward thinking general counsels of top legal teams from Coca Cola, Ed.3 2020

L’oreal, Australia Post, University of Melbourne - just amazing clients who are thinking about how to run their legal departments differently, but we also have a really great market-facing arm of our business where we conduct about 100 meetings across our business with legal teams and general counsel every month.

So, I don’t think anyone speaks to the legal teams and general counsels more than we do. That means we have a really interesting take on the challenges that general counsels are facing right now.

How we use technology to help teams improve their legal functions, well there’s a lot to that: there’s three categories of technology that Plexus primarily operates in. The first is automation, the second is matter management and then lastly contract management. And so we leverage those different elements of our platform, which is called Plexus Gateway, and the platform is modular which means you can turn each of those three elements on or off at will as is relevant to you, to help legal teams do all sorts of things. But the key challenges that they’re trying to solve with technology with those three elements are reducing time spent on low-value, low-risk work and eliminating manual processes. And also scaling risk management.

Legal teams use technology to scale risk management, so to meet the demands of more clients in the business without hiring more lawyers. They use legal technology to reduce the manual processes in their function, so instead of having to download a document from your Gmail, open it in Word, then save it and upload it to another contract management system, they use technology to do that all automatically.

And then they use technology to reduce the time they spend on boring routine tasks. No lawyer goes to law school to review 30 NDAs a month, right? They want to do super interesting work, they want to negotiate with counterparties and go to court. Instead, a lot of in house lawyers are stuck repeatedly drafting the same agreements over and over again. It’s a huge problem.

And so the technology that Plexus has automates the creation of template documents. And once a document is templatized, you can have Joe Bloggs in your sales team creating your key commercial contract basically using automation. So it’s a good thing for legal functions to know how to do.

Law is commonly seen as quite a traditional profession, which is resistant to change and slow to adapt to developments in technology. What do you see as the future of firms which do not wish to innovate and ‘keep up with the times’? thebrief.muls.org | 31

The overarching point is that law students will need to be adaptable, because the legal industry in which they start their careers will be completely different to the industry where they become senior partners. And so, they will need to be more adaptable than any other generation in the past.”

I have a couple of thoughts on this. The first is that change isn’t uniform. There are parts of the legal industry that are much further ahead than other parts of the legal industry. We have new solo law firm practitioners going out on their own and building entire legal practices around technology. They’ve got CRM customer relationship management software, e-billing, client management, all on their computer. At the same time, we still have bush lawyers who operate one hundred percent on paper. So, the future isn’t evenly distributed. It’s already here, but it’s just not everywhere.

So that will continue to be the case. We will see some law firms continue to push further and further ahead I think over the next two decades, and they will continue to eat up more and more of the market as they create a better competitive advantage.

Similarly, the effects will lag on the smaller end of the spectrum where there’s less money for smaller firms and solo practitioners to invest in technology, and they’ll be further behind. But if you expand your time horizon to 50 to 70 years, we’re talking about a completely radically different legal industry, where there is no question about whether or not your small law firm uses legal technology. And I think it’s important to keep that time horizon in perspective, because the law students going through law school now might well operate in an environment where everything is digital and the way that we interface with the law will be completely different as technology continues to not only computerise previously manual tasks, but increasingly automate tasks so that lawyers don’t actually have to do that work.

You would no doubt have a strong understanding of the skills and mindset required of young lawyers starting out in a profession which is being transformed by technological advancements and new ways of practicing law. What advice would you give to Macquarie law students beginning their careers in this environment?

The overarching point is that law students will need to be adaptable, because the legal industry in which they start their careers will be completely different to the industry where they become senior partners. And so, they will need to be more adaptable than any other 32 | The Brief

generation in the past. If you went to law school in the 70s, by the time you became a partner in a law firm, it was basically the same. It will not be the case that in 2050 we practice the law in the same way that we do right now and so adaptability is absolutely key.

The advice for Macquarie law students beginning their careers in this environment is twofold - become curious about something and continue to develop that curiosity. Doesn’t have to be technology; it can be the business of law, it can be in a particular area of law like manufacturing or construction or employment.

Become curious about that and dive as deep into it as you can. And once you have an understanding of a particular area of law or a particular interest, you’ll be able to interpret all the changes that happen in the legal industry through that lens so it’s no longer an abstract ‘how is the legal industry changing’, it is ‘how is employment law changing’, and that is relevant because you can then continue to build valuable skills that people will pay you money for, and stay at the forefront of innovation. So, developing and fostering curiosity across a couple of areas that interest you would be the number one thing.

And then the other thing is to connect with as many people as possible. The legal industry has operated in silos, we have built this industry on the adversarial model where people want to withhold all the knowledge and information and not share it with others. I think that is an increasingly old and dying way of practicing the law and it will not allow the industry as a whole to progress and move forward. So what we really need to do is encourage young lawyers and law students to be collaborative and to reach out and connect with as many people as they can to learn about the different areas of law, to understand how different firms and technology companies are doing things differently and then to bring that into their own practice. It’s never been easier to do that with LinkedIn and online conferences and such. And if you want to be successful in the future, you’ll have to be able to collaborate with people and bring ideas from different areas of the industry together to move forward. So, it’d be to get curious, meet lots of people and be adaptable.

Ed.3 2020

Stuff Law Students Like

It’s Not you – It’s the Unattainable Expectations Placed Upon You. Daniella Murphy

I

’m taking you back to 2017 - before the turmoil that is 2020. I had begun my first year of law school at Macquarie University, and had been meet with the ooh’s and aah’s by those close to me after obtaining a place in such a prestigious degree. I felt satisfied that I had been accepted into a good course with good career prospects, or at least that’s what I thought.

Fast forward several years, in the brunt of my double degree, and a feeling of inadequacy overwhelmed me.

Even if I tried my best in all my units, and received good marks, I was not good enough. No matter how well I had done in any respect, I felt unsatisfied, inexperienced, and fearful of the future that was ahead.

Some students that I have discussed this with tend to avoid talking about their feelings of inadequacy, so they don’t sound dim-witted or incompetent. Some students appeared completely self-assured and Ed.3 2020

confident about their future. Evidently, there is a huge disparity. Are the unconfident students just like that by nature? Or, do the confident students put on a mask to conceal the same inner monologues of self-doubt?

Laura Empson, in her 2018 BBC article, describes the term ‘inadequate overachievers’.

These are the kinds of people who are brilliantly successful and appear to excel in their chosen pursuits. Yet, completely undermine their own capabilities, and question their success often.

I think we have all been there, a time when you think… am I really meant for this? For me, it was the time when I was dangerously close to failing Business Organisations, even though I had poured my entire soul into studying for the exam.

After receiving my results, and realising I had done terribly, a friend of my just had to let me know he had received a Distinction grade. And just like that, yikes. The symptoms of ‘impostor syndrome’ are back…

But wait, does it have to be this way? The idea that law students are always perfectly confident in their abilities and achievements is not the case for a lot of students. I’m trying not to sound too cringy here, but think about the all the incredible people in law who have come before us, have embraced the struggle, and wound up doing just fine. I’m sure that every super successful lawyer has felt a bit incapable at some point. At the day’s end, you are certainly not alone in these feelings. Discussing these feelings with friends and peers is an important step in normalising that it is ok to feel inadequate at times, in our pursuit to be the perfect law student. It is pivotal to remember that failure is part of the process of learning and growing as humans, and it needs to be accepted as such.

Once everything is said and done, the best thing you can do as a law student is your best. Have a reality check with yourself every so often and try to remember that you are here for a reason.

“These are the kinds of people who are brilliantly successful and appear to excel in their chosen pursuits. Yet, completely undermine their own capabilities, and question their success often.

thebrief.muls.org | 33

A Brief Review

Tanmay Kulkarni

A

ustralia’s immigration policy has consistently been subject to controversy, and Stateless provides no respite. The six-part series, originally aired on the ABC, explores the moral and ethical faults of Australia’s immigration detention centres. Inspired by true events, the series presents the stories of four characters whose lives converge at Barton Immigration Detention Centre. Each character is portrayed with incredible conviction, resulting in an effective depiction of the human side of detention centres.

The narrative is cleverly crafted, with each character’s story being paralleled by the others. For instance, just as Ameer surrenders his passport to the ‘people smuggler’, Sofie’s passport is surrendered to her parents. Through these parallels and inclusion of Australian citizens as major characters, the directors successfully convey an idea rarely seen in Australian media; that refugees are just like ordinary Australians.

As The Guardian’s Luke Buckmaster astutely observes, the title of the series seems to be paradoxical.

The refugees in detention are considered to be stateless; not officially belonging to any nation. In contrast, the Australian citizens are not stateless – they are Australian. However, considering sovereignty was 34 | The Brief

never ceded, it can be questioned whether it is only those kept in detention who are inherently stateless, drawing further similarities between the Australian citizens and the refugees.

While law students will appreciate the numerous references to international law and duty of care, the legal themes evident in the series run much deeper.

Stateless deals with concerns of corruption, democracy and, most notably, the secrecy that pervades Australia’s detention centres. Whether detainees are being brutally bashed outside the view of CCTV cameras, or the facility manager is symbolically concealing the word ‘help’ that has been scratched onto her desk, it is clear that the only method of dealing with problems here is to hide them away.

Although detention centres are no longer as restricted as they once were, refugee advocates and lawyers continue to have limited access to these areas; raising concerns about whether fundamental human rights are being protected. As you watch the series, I encourage you to be critical of the current law governing immigration detention centres and consider whether the balance between national security and individual rights is truly being achieved.

Ed.3 2020

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Ed.3 2020