The Full Bench Vol.1 2021 - The New Normal

JUNE 2021

UTS LAW STUDENTS’ SOCIETY

THE NEW NORMAL

PAGE 016

Jab or no Job? Can Employers force their Employees to be Vaccinated?

PAGE 019

Your Honour, I’m not a cat The Transition to Online Courts

PAGE 012

COVID-19 and the Community The emotional impact of the law during the pandemic

AUTHORS & ACKNOWLEDGEMENTS Education (Publications) Director & Editor-in-Chief Tayla Curry Designer Tahlia Kho Authors Georgia Zocco Georgia Neaverson Paris Gavenlock Raphaella Revis Isabella Kidman

Lily Parchizadeh Michelle Chidiac Hue Pham Ashley Sullivan

President Vicky Kuo

Vice-President Justin Cordi

The Full Bench is published bi-annually in Sydney by: UTS Law Students’ Society 61 Broadway, Ultimo NSW 2007 UTS Central, Level 14, Room 104 www.utslss.com UTS Law Students’ Society © This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Acknowledgement of People & Country

The Full Bench and UTS acknowledge the Gadigal and Guring-gai people of the Eora Nation upon whose ancestral lands our university now stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places.

Images & Illustrations

Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

Disclaimer

All expressions of opinion published in The Full Bench are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

Want to contribute to the next edition?

Email: edu.publications@utsslss.com

CONTENTS Welcomes Editor-in-Chief President Vice-President Editorial Team

01.

02.

03.

04.

005 006 007 008

COVID-19 & Community: The Emotional Impact of the Law During the Pandemic

by Georgia Zocco 012

No Jab, No Job? Can employers force employees to be COVID-19 vaccinated?

016

by Georgia Neaverson

Your Honour...I'm not a Cat The Transition to Online Courts

by Paris Gavenlock 019

The Barriers Facing Asylum Seekers

by Raphaella Revis

023

05.

06.

07.

08.

09.

The Constitutional Consequences of Border Closures

by Isabella Kidman

026

Intellectual Property Laws Surrounding COVID-19 Vaccines

by Lily Parchizadeh

029

Automation in the Legal Industry

by Michelle Chidiac

032

Cultural Due Diligence & Border Closing State Rights

by Hue Pham 035

Philosophising Pandemic Policies

by Ashley Sullivan

039

WELCOME

Welcome from the

Editor-in-Chief I

am very proud to share this publication with you all. It showcases the work of extremely driven and talented UTS Law students and is a publication that I am sure that you will all enjoy reading.

This publication focuses on ‘The New Normal’, following the tumultuous year of 2020: a year that was a stepping stone for change. Today, we still witness almost daily the impact that COVID-19 has had on both a personal and global scale and the way individuals and the legal community have had to adapt.

The way that the world at large and the legal sector has responded to the challenges faced as a result of the pandemic has been inspiring.

It was this inspiration that drove the pages before you.

I would personally like to thank all the contributors, particularly my Education Publications Subcommittee who have given their time and enthusiasm. I would also like to thank Vicky Kuo, the President of the LSS and Justin Cordi, the Vice-President of Education, for their unwavering support. Finally, I would like to thank the incredibly talented designer Tahlia Kho who produced the beautiful pages you are reading.

TAYLA CURRY

5

Welcome from the

President W

elcome to the first volume of The Full Bench for 2021, brought to you by the Education portfolio of the UTS LSS!

‘The New Normal’ has become a household phrase for most – almost as common as ‘hybrid’. My favourite part about this publication is that it delves into such a diverse range of things that have been impacted by COVID-19; it is so fascinating to see how many different areas of the law (and beyond) have evolved to become our new ‘normal’.

This great publication would not have been possible without the efforts of an incredibly talented team, who have worked tirelessly throughout the semester to put it together. Congratulations and thank you to Tayla Curry, our Education Publications Director, and Justin Cordi, our VicePresident (Education), for their flawless coordination of all the behind-thescenes work that goes into creating a publication of this size and quality.

Thank you also to the Education (Publications) Subcommittee, for their dedication and teamwork.

Finally, thank you to all the law students who contributed an article to this publication and thank you to our designer, Tahlia Kho, for creating a beautiful format for us to read them in.

I hope you enjoy reading this volume of The Full Bench — I know I definitely did.

VICKY KUO

6

Welcome from the

Vice-President L

ast year, it was ‘Unprecedented’. Now, it is ‘The New Normal’. In many ways, this period in our history is appropriately summarised by the titles of the LSS’ most recent editions of ‘The Full Bench’.

COVID-19 has certainly taught us a few lessons. It has stressed the importance of aspects of life we may have once ignored: human interaction, social purpose, personal responsibility, and always ensuring your Zoom microphone is muted.

Above all else however, it has taught me the pliable nature of humankind.

I have witnessed change I never thought possible, and observed the ease in which we can adapt, if the will is present to do so. Even industries once criticised for their stoicism and resistance to change — including our very own legal profession — have been flipped on their head.

Indeed, what was once seen as unprecedented, is now the new normal.

The publication you are about to read features fascinating insight from some of UTS Law’s brightest students, made possible through the hard work of certain people.

Thank you to our Editorial Team for their attention-to-detail and unwavering enthusiasm in making ‘The Full Bench’ a reality. Thank you also to the LSS’ President, Vicky Kuo, whose flawless leadership continues to guide us through the challenges of 2021.

Above all, thank you to our Education (Publications) Director, Tayla Curry.

Tayla donated her summer, weekends and countless hours to The Full Bench, and displays the same dedication to every role she performs. It is truly a pleasure to have her as a part of our Education team.

I sincerely hope you enjoy the read!

JUSTIN CORDI

7

Welcome from the

Editorial Team O

ne year on, what was “unprecedented” has been redefined as “The New Normal.”

Although COVID-19 is far from over, we are now catching a glimpse of what life could look like post-pandemic. Will employers continue to embrace “flexible work” and “work-from-home” arrangements? What will be required of international travel passengers? What systems must we implement to ensure the transition to life after lockdown is as smooth as possible?

My article considers a widespread employment law issue borne out of the pandemic: can employers force employees to be COVID-19 vaccinated? It discusses the legal issues behind enforcing a mandatory vaccination policy, the grounds for discrimination that such a policy may bring, and the circumstances under which it may be lawful and reasonable to mandate vaccination. These issues have already been raised in several cases before the Fair Work Commission and will likely continue to be prominent as we transition into this new normal.

Welcome to the first issue of The Full Bench 2021. I sincerely hope you enjoy the read!

GEORGIA NEAVERSON Bachelor of Business / Bachelor of Laws

W

hat a whirlwind 2020 has been. The ‘new normal’ has emerged and the lives of people all around the world have changed in ways that only time will tell.

The theme of this edition of The Full Bench is exactly that — ‘The New Normal’ — and explores various and long-lasting ramifications of the COVID 19 pandemic, which have started to reveal themselves.

My article titled ‘Automation in the Legal Industry’ summarises the rapid advancements in technology catalysed by the pandemic and the need to adapt to the changing nature of the workplace. The need to stay home during lockdown periods gave way to Work-from-Home arrangements that so many professionals have relished in, while others have sorely missed their daily coffee catch-ups and general face-to-face interaction with colleagues in the office. The article also sheds light on some recent examples of advances in technology promoted by the covid pandemic which have catapulted efficiency and improved the nature of work in the legal industry.

Nevertheless, buckle up for an insightful read on how the pandemic truly sent shockwaves around the globe, revealing a new normal in which we live and leaving us to muse what exactly this will look like in the years to come.

MICHELLE CHIDIAC Bachelor of Laws / Bachelor of Communications (Social & Political Sciences)

8

J

ust a few weeks ago Victoria recorded new local COVID-19 cases, prompting all other States and Territories to impose border or travel restrictions on Victoria.

This was considered to be “unprecedented” back in 2020, but it is “the new normal” now. This edition of the Full Bench highlights that although the legal industry in Australia has adapted to some disruptions to the usual processes by shifting to virtual courtrooms and accommodating working from home arrangements, issues such as the barriers facing asylum seekers have only worsened.

My article delves into the effects of Advance Purchase Agreements (APAs) and laws and regulations surrounding intellectual property rights on low-income countries.

The article examines whether these agreements, rights and regulations are a barrier to equitable access to vaccinations and treatments across the globe.

I hope you enjoy this issue and the hard work of our wonderful student contributors.

LILY PARCHIZADEH Juris Doctor

T

o expect the unexpected embodies the events of the last year. Yet, learning to adapt to these alterations of our work, academic and social lives has marked ‘the new normal’. In readjusting to the rhythms of pandemic recovery, Australia’s legal system has been no stranger to reshaping its practices and policies to keep up with the pace of COVID-19 responses.

Reflecting upon a tumultuous year of regulations, restrictions and reductions of our freedoms, my article examines the moral dilemmas that arise from pandemic policies aimed to curtail the spread of COVID-19. Exploring how justice operates in an unpredictable legal landscape, philosophical theories act as a powerful framework for the mixed approaches and the equally conflicting public responses towards securing the state’s safety and wellbeing.

In remembering our moral duty as citizens, the first volume of The Full Bench for 2021 welcomes you all to a thought-provoking look into the legal profession’s transformation into ‘the new normal’.

ASHLEY SULLIVAN Bachelor of Laws / Bachelor of Communications (Journalism)

I

believe ‘The New Normal’ perfectly encapsulates what our society is currently facing.

As vaccines are being rolled out and there is no immediate threat of COVID-19 in NSW, it is essential to consider whether our world will continue to be online. I appreciate inperson lectures and tutorials, and have missed t he connection with teachers and peers since we switched online. However, I can recognise that adjusting to life online is imperative as we progress in our careers. We have seen working from home, meeting clients over zoom, and e-signatures become commonplace practices within the legal industry, which demonstrates the importance of technological skills moving forward. There is no doubt that COVID-19 has forever altered the world and our experiences. As we adjust to the new normal and the ease of working and studying online, we must be conscious not lose human connection.

MOLLY HUDSON Bachelor of Laws 9

the new

INTRODUCING

TFB

moving FORWARD FORWARD FORWARD

L

W

N

O

E NE

RM

A

LSS

TH

UTS

[during a global pandemic]

COVID- 19 & COMMUNITY

The Emotional Impact of the Law During the Pandemic

By Georgia Zocco

12

‘ No man is an island, Entire of itself; Every man is a piece of the continent, A part of the main’. 1 Despite being written nearly 400 years ago, these words of John Donne’s 1624 poem ‘No Man Is An Island’ continue to ring true. Here, Donne neatly captures a fundamental element of the human condition: social connection. Humans are social creatures; we do not like to live in silos. We like to go out, to sing, dance and laugh — this is what it means to be human. To be human is to share life milestones and experiences with friends and family.

When the words ‘social distancing’, ‘quarantine’ and ‘lockdown’ began to feature in the vernacular of world leaders and ordinary citizens alike, we were forced to become islands.

On 25 March 2020, the Commonwealth government enacted the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (‘the Determination’). The Determination was made pursuant to the Biosecurity Act 2015 (Cth) s 477(1), which allows the Health minister to prevent or control’ the entry of a human disease into Australia and minimise its spread.2 The Determination "generally forbids Australian citizens and permanent residents from leaving Australian territory by air or sea as a passenger".3 Additionally, it "forbids the operator of an outgoing aircraft or vessel from leaving Australian territory with an Australian citizen or permanent resident on board as a passenger."4

1 2 3 4

‘No Man Is An Island’, All Poetry (Web Page) < https://allpoetry.com/No-manis-an-island>.

Biosecurity Act 2015 (Cth) ss 477(1)(a)(i)-(ii).

Howard Maclean & Karen Elphick, ‘COVID-19 Legislative response – Human Biosecurity Emergency Declaration Explainer’ (Parliamentary Library Blog, Parliamentary Library, Parliament of Australia, 27 March 2020).

Ibid.

13

For many people, the Determination was an inconvenience.

European holidays were cancelled, university exchanges were put on hold for the foreseeable future, and winter escapes to sunnier climates were reluctantly abandoned. What’s worse is that for some, border closures and lockdown measures had a significant impact on funerals and other major life events.

On the 14th of June 2020, I suddenly lost a member of my extended family to cancer. They lived in Victoria. On this day, Victoria recorded 9 new cases.5 I heard anecdotes from friends about Zoom funerals, or a lack of funerals altogether for loved ones who had passed. Nonetheless, attending a funeral during a pandemic was different. Sydney Airport was a ghost town; a lone café served few travelers their coffees, while all other stores remained abandoned. The plane, while largely full, was a sea of masked faces. The church was zoned and largely empty, hugging was disallowed, and wake ceremonies were scaled back. Rather than staying in Melbourne for another week to spend time with my extended family, my family quickly gathered our belongings together and drove back to Sydney. After attending the funeral on Friday, we had left Melbourne to return to Sydney by Sunday, conscious of the growing coronavirus outbreak affecting Melbourne.

" Sydney Airport was a ghost town; a lone cafe served few travelers their coffees, while all other stores remained abandoned. The plane, while largely full, was a sea of masked faces."

5

14

Victoria State Government, ‘Coronavirus update for Victoria – 14 June 2020’ (Media Release, Department of Health and Human Services, 14 June 2020).

" When the words 'social distancing, 'quarantine' and 'lockdown' began to feature in the vernacular of world leaders and ordinary citizens alike, we were forced to become islands."

My family was lucky to have come together to celebrate the life of my extended family member. I remember my disappointment in learning that, in just two weeks’ time, we could have had 200 people at the funeral instead of 50. We were completely unaware of the dire situation that was imminent in Victoria.

At the time of writing, Victoria has recorded 20,573 COVID-19 infections, and 820 COVID-19 related deaths throughout the pandemic, most of which are attributable to Victoria’s deadly second wave.6 We are lucky in Australia that compared to many other countries, we are currently anything but an island. Our strong public health orders have largely minimised the spread of COVID-19 in our country. Minimal COVID-19 community transmission has meant that, in the words of Donne, Australians have been able to become "a part of the main" once more.7 We are fortunate to be able to share once more in a relatively normal human experience, from café outings to large family gatherings.

We are lucky to be able to indulge in the richness of the Australian spirit once again.

6

Victoria State Government, ‘COVID-19 Chief Health Officer update’, Department of Health and Human Services (Web Page, 12 May 2021) <https://www.dhhs.vic.gov.au/covid-19-chief-health-officer-update>.

7

‘No Man Is An Island’, All Poetry (Web Page) < https://allpoetry.com/Noman-is-an-island>.

15

NO JAB, NO JOB? Can employers force employees to be COVID-19 vaccinated?

By Georgia Neaverson

Vaccinations have long been the centre of controversy, and COVID-19 is likely to be no exception. Not only have vaccines spawned the popular political debate of 'fact versus fallacy,' but they also call into question broader issues of public health, human rights, privacy, and discrimination.

After 2020’s turmoil of a year, many employers believe that mass vaccination is the light at the end of the tunnel.

However, is it as easy as enforcing a 'mandatory vaccine' workplace policy? Could such a policy bring grounds for discrimination? In this new normal, will no jab mean no job?

MANDATORY VACCINATION WORKPLACE POLICY? Given the government’s voluntary approach to COVID-19 immunisation, most Australian employers will not be permitted to enforce a blanket policy mandating employee vaccination but rather must approach the issue on a case-by-case basis.

Legally speaking, any direction provided by an employer regarding mandatory vaccination must be “lawful and reasonable.”5 Various factors may impact whether or not an employer’s direction is lawful and reasonable, including:

PUBLIC HEALTH VERSUS HUMAN RIGHTS:

AUSTRALIA'S APPROACH

* The employer’s work health and safety obligations

On a national level, the Australian Government maintains that receiving a COVID-19 vaccination is voluntary.1 However, the Federal Government is aiming for as many Australians as possible to choose vaccination, with Prime Minister Scott Morrison previously remarking that any successful vaccine would likely become “as mandatory as you could possibly make it.”2 Moreover, as evidenced through the past year’s lockdowns, curfews, and border restrictions, state governments also have considerable power in enforcing public health orders. To that end, states and territories are permitted to issue health orders mandating vaccinations for certain industries.3 Queensland recently became the first state to mandate vaccinations for “relevant employees” in specific roles as of 31 March 2021.4 Government policy surrounding the COVID-19 vaccine reflects Australia’s anti-discrimination legislation, including the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth), which prevent discrimination on the grounds of pregnancy and disability.

1 2 3

Australian Government, ‘COVID-19 vaccinations and the workplace’, Fair Work Ombudsman (Web Page), https://coronavirus.fairwork.gov.au/ coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-theworkplace.

Adam Doughman, ‘Can employers force employees to be COVID-19 vaccinated?’, Keypoint Law (online, 2 February 2021) https://www. keypointlaw.com.au/keynotes/can-employers-force-employees-to-be-covid19-vaccinated/.

Australian Human Rights Commission, ‘COVID-19 vaccinations and federal discrimination law’, Australian Human Rights Commission (Web Page) https://humanrights.gov.au/our-work/rights-and-freedoms/covid-19vaccinations-and-federal-discrimination-law.

* The employer’s duty of care obligations at common law * Whether the employee can perform the inherent requirements of their role without vaccination * Whether the direction complies with all relevant contracts, modern awards or enterprise agreements and federal and state legislation, including anti-discrimination and privacy legislation6

4 5 6

Ibid.

Australian Government, ‘COVID-19 vaccinations and the workplace’, Fair Work Ombudsman (Web Page) https://coronavirus.fairwork.gov.au/ coronavirus-and-australian-workplace-laws/covid-19-vaccinations-andthe-workplace.

Karl Rozenbergs and Anthony Hallal, ‘Can employers require their employees to get the COVID-19 vaccine?’, Hall and Wilcox (online, 22 January 2021) https://hallandwilcox.com.au/thinking/can-employersrequire-their-employees-to-get-the-covid-19-vaccine/.

17

Naturally, whether a direction is lawful and reasonable varies considerably from industry to industry.7 For example, a mandatory vaccination direction to employees in an aged care facility, who are in regular contact with vulnerable people, is more likely to be considered reasonable than employees in an office, who may work under flexible and remote arrangements.

Furthermore, some employees may be medically exempt from receiving a COVID-19 vaccine. For example, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists does not presently recommend that pregnant women receive a COVID-19 vaccine as they were not tested during the vaccination’s clinical trials.9 As such, an employer who enforces a mandatory vaccination workplace policy may be engaging in 'indirect discrimination' under Australia’s anti-discrimination legislation.10 Finally, employers must ensure that any workplace policy regarding COVID-19 vaccination is consistent across all employees within the organisation. Responding to one employee’s refusal more aggressively than another’s may expose the employer to liability.11 Employers are encouraged to seek legal advice regarding their organisation’s circumstances before imposing workplace policies regarding COVID-19 vaccination.

VACCINATION & INTERNATIONAL TRAVEL While mandatory COVID-19 vaccination is not likely to be blindly adopted in all workplaces, it may be a different story for international travel policies. Compulsory vaccination of international travellers may be difficult to dispute as airline staff and passengers may fly to other jurisdictions where a COVID-19 vaccine is a condition of arrival.12 In a November 2020 Media Release, Qantas stated that, although the Australian Government has not mandated vaccination, there may be circumstances where federal and other governments “introduce border entry or re-entry requirements that are conditional on proof of vaccination.”13 “We will ask people to have a vaccination before they can get on the aircraft… for international visitors coming out

and people leaving the country we think that’s a necessity,” said Qantas CEO Alan Joyce, adding that medical grounds would be the only basis for exemption.14

CONCLUSION In Australia, COVID-19 vaccination policies are likely to follow those of other vaccines in that they may be strongly encouraged but not mandated. That said, individuals who choose not to be vaccinated will likely face restrictions in international travel and some areas of employment.

Employers should assess whether it is lawful and reasonable to require that an employee be vaccinated on a case-bycase basis. This direction is impacted by factors such as the industry, medical exemptions, and relevant legislation. As such, an employer’s approach must be far more nuanced and complex than imposing an arbitrary 'no jab, no job' rule.

7 8 9

Australian Government, ‘COVID-19 vaccinations and the workplace’, Fair Work Ombudsman (Web Page) https://coronavirus.fairwork.gov.au/ coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-theworkplace.

Jess Bell, ‘COVID-19 vaccine: Can employers force prospective employees to be vaccinated’, Human Resources Director (online, 11 March 2021) https:// www.hcamag.com/au/news/general/covid-19-vaccine-can-employers-forceprospective-employees-to-be-vaccinated/248895.

Australian Human Rights Commission, ‘COVID-19 vaccinations and federal discrimination law’, Australian Human Rights Commission (Web Page) https://humanrights.gov.au/our-work/rights-and-freedoms/covid-19vaccinations-and-federal-discrimination-law.

10 Ibid.

11 Karl Rozenbergs and Anthony Hallal, ‘Can employers require their

employees to get the COVID-19 vaccine?’, Hall and Wilcox (online, 22 January 2021) https://hallandwilcox.com.au/thinking/can-employersrequire-their-employees-to-get-the-covid-19-vaccine/.

12 Adam Doughman, ‘Can employers force employees to be COVID-19

vaccinated?’, Keypoint Law (online, 2 February 2021) https://www. keypointlaw.com.au/keynotes/can-employers-force-employees-to-be-covid19-vaccinated/.

13 Qantas, ‘Qantas group position on COVID-19 vaccination for international travel’, (Media Release, 26 November 2020).

14 BBC News, ‘Covid: Vaccination will be required to fly, says Qantas chief ’,

BBC News (online, 23 November 2020) https://www.bbc.com/news/worldaustralia-55048438.

Your Honour, I'm not a cat

The Transition to Online Courts

By Paris Gavenlock

Mr Ponton, I believe you have a filter turned on in the video settings.

You might want to... take a look… …it is. I don’t know how to remove it…

I’m here live, I’m not a cat.

I can see that.

"We didn’t know that coronavirus was about to transform our everyday lives to such a degree that an attorney would one day need to inform a judge that he was not, in fact, a cat."

1

Supreme Court of NSW, ‘COVID-19 update’, NSW Government (Web Page), https://www.supremecourt.justice.nsw.gov.au/Pages/coronavirus _covid19_announcement.aspx

20

On 9 February 2021, the 394th Judicial District Court of Texas commenced virtual proceedings over the popular video conferencing platform Zoom. A short time later, an exchange took place between the judge and one attorney — an exchange that, once upon a time, would have sounded alien in a courtroom.

On January 25 2020, the first case of coronavirus was confirmed in Australia. We knew the patient was a man from Wuhan, who flew to Melbourne on 19th of January 2020.

We didn’t know that coronavirus was about to transform our everyday lives to such a degree that an attorney would one day need to inform a judge that he was not, in fact, a cat.

In March 2020 the New South Wales Supreme Court suspended all personal appearances, with matters to continue remotely using audio visual equipment and digital technology.

As noted by Chief Justice Bathurst, the shift to virtual courtrooms "created unprecedented disruption to our usual processes".¹ However, the place of digital technology in the courtroom is undeniable. For example, the NSW Supreme Court, although resuming face-to face hearings, continues to accept electronic copies of various court documents, including appeal books and subpoenaed materials, via email or the NSW Online Registry.

On 4th of March 2021 in the Perth Concert Hall, Justice Katrina Banks-Smith of the Federal Court of Australia analysed the role of the virtual courtroom and its impact on open justice and transparency, stating:

…in terms of open justice, I am not sure that the online hearing has prejudiced the transparency of the standard commercial court hearing…

What is important is that we have options, and… open justice is not compromised by those options.² These sentiments are echoed by Chief Justice Bathurst, who sees "an innovative and flexible future ahead".3 However, if you are a practiced public speaker, lecturer, politician or even a university student who has addressed a group of your peers, then you know that audience connection, unique to face-to-face presentation, is often vital to communicating your desired message. Non-verbal cues are like traffic lights; they tell us when to start, stop and slowdown, without ever making a sound. They are key, often more so in a courtroom, to understanding what the audience wants and does not want, likes and does not like. This raises the question; in a virtual courtroom, what has happened to our advocates?

Popular culture has churned out more crime shows than I can count, so choose a courtroom scene in a television show or a movie and visualise it in your mind. It’s likely there is an advocate, delivering a powerful speech to the jury, or crossexamining a witness with a relentless tirade of questions which, in true Hollywood fashion, results in a dramatic confession (see Legally Blonde).

Can you picture this same scene occurring over Zoom?

Vera Culkoff, of 2nd Floor Selborne Chambers, notes that the suspension of personal appearances would have been "extremely difficult for new barristers who learn significantly through their Court exposure". However, it may be that those

new barristers, whose experience has been primarily in the virtual courtroom, will be skilled at delivering these same powerful speeches via a digital platform.

"If there is one ubiquitous moral from this coronavirus story, it is to be adaptable when confronted with change."

Article continues over page.

2 3

Federal Court of Australia, ‘Courts, confidences and change in challenging circumstances’, Federal Court of Australia (Web Page), https://www. fedcourt.gov.au/digital-law-library/judges-speeches/justice-banks-smith/ banks-smith-j-20210304 Supreme Court of NSW, ‘COVID-19 update’, NSW Government (Web Page), (Web Page), https://www.supremecourt.justice.nsw.gov.au/Pages/ coronavirus_covid19_announcement.aspx

21

"The word 'normal', although used routinely, means different things to different people."

As the staggered transition back to the traditional courtroom begins, it’s important to remember that it wasn’t just the courtroom where personal appearances were suspended. In March 2020 the New South Wales Government introduced a public health order requiring employers to allow employees to work from home where reasonably practicable.4 Although no longer in force, many members of the legal profession continue to work from home, suggesting that this change in working arrangements may be permanent. Vera Culkoff has noticed that members of her floor at Selborne Chambers are now choosing to work from home several days a week, or become door tenants rather than continuing to lease their own offices.5 Ms Culkoff believes this will be the ‘new norm’ as members of the legal profession prefer the flexibility and freedom that comes with working from home.

The word ‘normal’, although used routinely, means different things to different people. For the justice system and the legal profession, the definition is evolving. I could speculate on what this might look like, but 12 months ago I would not have guessed that a judge would not need to be informed that one of the parties appearing before him was not a cat. Coronavirus has certainly been a catalyst for some degree of necessary change, but even in the ‘innovative and flexible’ future envisaged by Chief Justice Bathurst, I believe it will be the four walls of the courtroom and not the living room that will bear witness to the compelling cross-examination and remarkable speeches delivered by the advocates of the future.

The author would like to thank Ms Vera Culkoff of 2nd Floor Selborne Chambers for her contribution to this article.

4 5

NSW Government, ‘Working from home guidance for employers,’ NSW Government (Web Page), , https://www.nsw.gov.au/covid-19/safeworkplaces/employers/working-from-home A door tenant is a barrister who is a member of Chambers but works from premises outside the Chambers.

22

THE BARRIERS FACING

ASYLUM SEEKERS

By Raphaella Revis

Asylum seekers accessing justice in the Australian social justice system is a rising issue that amounts to language barriers and financial hardship, preventing them from securing legal representation. This has been exacerbated during the COVID-19 pandemic. Despite the Migration Act 1958 (Cth) allowing people to legally seek refuge in Australia by applying for a protection visa,1 the pre-existing obstacles means it is already difficult for asylum seekers. Their pursuit for justice and legal representation is further strained by the legal system’s struggle under the worldwide effects of COVID-19, the extent of which is discussed in this piece.

Asylum seekers are at a linguistic disadvantage, as a result of them often originating from non-English speaking countries, hindering them in understanding the Australian legal system and litigation processes. Although interpreting services are available, the financial circumstances of asylum seekers makes it an ineffective remedy due to high cost.2 Even prior to the pandemic, lack of access to interpreting services left asylum seekers vulnerable and unrepresented during litigation. The case of AMF15 v Minister for Immigration and Border Protection3 saw an appeal by an unrepresented applicant who did not speak or read English. The appeal was in regards to procedural fairness from the judgment of the Federal Circuit Court.

Moreover, worldwide lockdowns have made it increasingly difficult to secure legal representation. " As a result, pro bono While a closer look at their financial circumstances services are generally will be done in the following section, it is important to note that asylum seekers are often unable to pay the only remaining for private legal representation, with legal aid genavenue for asylum erally unavailable to them, as they often do not pass seekers." the merits test. As a result, pro bono services are generally the only remaining avenue for asylum seekers. The recent case of CZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 199 demonstrated these difficulties.4 In this case, CZR20 could not obtain legal representation with a private firm because of financial hardship, thus was forced to seek pro bono services in the midst of the pandemic. Despite being aware of these circumstances and knowing that pursuant to section 501 of the Migration Act, CZR20 was ineligible for the Immigration Advice and Application Assistance Scheme,5 the Tribunal still refused to adjourn the hearing. This led to an unfair dismissal.

This case highlights the impact of the pandemic on accessibility of pro bono services, resulting from pay cuts and shortening of working hours in law firms. The issues presented in the case of CZR20 correlate with the lack of legal resources during the pandemic and how this strains the legal profession itself, leading to an increase in unrepresented litigants and injustice for asylum seekers.

1 Migration Act 1958 (Cth).

2 Law Council of Australia, The Justice Project Asylum Seekers (Final Report Part 1, August 2018) 28 <https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/Asylum%20 Seekers%20%28Part%201%29.pdf>

3 AMF15 v Minister for Immigration and Border Protection [2016] 241 FCR 30.

4 CZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 199.

5 Do people seeking asylum receive legal assistance?’, Andrew and Renata Kaldor Centre for International Refugee Law UNSW Law (Web Page, 4 May 2020) <https://www.kaldorcentre.unsw.edu.au/publication/legalassistanceasylum-seekers>.

24

Furthermore, despite asylum seekers facing significant financial hardships, they are ineligible to receive the government support funding designed as a response to the pandemic. This support funding, such as JobSeeker and JobKeeper, was available to most Australian permanent residents and citizens, in an attempt to alleviate the financial difficulties of the pandemic.

While this is an impactful scheme, asylum seekers and similar groups have been excluded from these payments. Even those who hold a valid visa were ineligible.6 In objection to this injustice, "While this has been an Jacqueline Phillips, acting CEO of Australian impactful scheme, asylum Council of Social Services, stated, “We are all in this together, but some people are being left…to seekers and similar groups face destitution…” Phillips went on to state that, have been excluded from “Everyone deserves to be able to put food on the these payments." table and a roof over their head”,7 reinforcing the United Nations Universal Declaration of Human Rights (Article 25). Extending the JobKeeper and JobSeeker supplements to asylum seekers would have adhered to the UDHR and made a positive impact on the already dire financial situation of asylum seekers, which has only worsened during the pandemic.

The global COVID-19 pandemic has had a continuing impact on the lives of many, including vulnerable groups like asylum seekers. The pandemic has also placed further demand on the Australian legal and social justice system, with lockdown leading to reduced hours for legal professionals, and consequently less opportunity for pro bono services. Ultimately, asylum seekers have been left with decreased access to legal representation and continue to experience financial hardship, making it a moral and justice driven necessity for law reform in these areas.

6 Sarah Dale, ‘All in this together? The impact of COVID-19 on refugees and people seeking asylum’,

Community legal centres Delivering access to justice (Web Page, 6 October 2020) <https://www.clcnsw.org.au/all-together-impact-covid-19-refugees-and-people-seeking-asylum>.

7 Sarah Dale, ‘All in this together? The impact of COVID-19 on refugees and people seeking asylum’, Community legal centres Delivering access to justice (Web Page, 6 October 2020) <https://www.clcnsw.org.au/all-togetherimpact-covid-19-refugees-and-people-seeking-asylum>.

8 ‘Extend JobKeeper & JobSeeker to ensure nobody is left behind’, Australian Council of Social Service (Web Page, 25 May 2020) <https://www.acoss.org.au/media_release/extend-JobKeeper-JobSeeker-to-ensure-nobody-isleft-behind/>.

25

The Constitutional Consequences of

BORDER CLOSURES

COVID-19 has brought with it challenges in all realms of life. Unprecedented was one of 2020’s most commonly used words, but with good reason. Around the globe, nations shut their borders, enforced stay at home orders and issued enormous amounts of stimulus to keep workers afloat. And whilst the pandemic in our own backyard is seemingly behind us, it has instigated flow-on effects which will permanently change the structure of governance in Australia.

Since 1901, Australia has acted as a nation of federated states.

Throughout the drafting and establishment of the Australian Constitution, consideration was given to the states to ensure that their power was maintained. Section 51 of the Constitution provides an exhaustive list of federal parliamentary powers.

That which is not included, is to be governed by State Parliament.

Western Australia, on this basis, was one state that effectively shut all routes in and out of its territory during the peak of COVID-19, with Premier Mark McGowan claiming that WA was to become “an island within an island”. He warned both residents of WA and those trying to come in, that the state simply did not want them there. Whilst interstate travel was limited throughout the pandemic, Western Australia’s management of their closed border was unprecedented.

Photography on this spread by: B. Price, P. Ovan, I. Joseph, R. Kabalan

26

By Isabella Kidman

Recently, the question of whether states are able to close their borders to other citizens of Australia has been put to the High Court. Specifically, the High Court has had to decide whether the ability to close borders is unconstitutional under section 92 of the Constitution, which requires trade, commerce and intercourse between states to remain absolutely free.

Western Australia's

EMERGENCY MANAGEMENT ACT The Western Australian border was officially closed on April 5, 2020, just under a month after the World Health Organisation declared a pandemic.

They were able to do this under the Emergency Management Act 2005 (WA).

The ‘Border Direction’ was enacted under this Act and allowed Western Australia to shut their borders so no citizen was allowed in and no resident was permitted to leave, omitting exceptional circumstances. Additionally, no vehicles or animals were permitted to cross the border.

Technically, the ability to enact this direction was done so legally.

However, this presented issues for the federated nation. Each state has separate laws that govern crisis management. In New South Wales, the Public Health Act 2010 (NSW) enables the health Minister to create provisions that deal with the risk of a public health threat.

With citizens of Australia not being able to move freely into Western Australia due to hard border closures enacted under state legislation, the state was put under fire, questioning the Act’s constitutional validity.

PALMER vs WESTERN AUSTRALIA Billionaire businessman Clive Palmer was refused access to Western Australia in May of 2020, due to the border closures. In an effort to challenge these border restrictions, Mr Palmer brought an action in front of the High Court of Australia, claiming the border closures enacted under the Emergency Management Act 2005 (WA) were unconstitutional as they were in direct conflict with section 92. Mr Palmer argued that shut borders restricted intercourse amongst states which contravened the objective of section 92: the unity of the federated states of the Commonwealth of Australia.

The High Court decided in Western Australia’s favour in November of 2020 on three grounds.

Firstly, the High Court reaffirmed the two limb structure of section 92, originally decided in the seminal case of Cole v Whitaker. The two limbs of the section are the trade and commerce limb, and the intercourse limb.

In Palmer v WA, it was decided that the burden to intercourse was reasonably necessary to fulfill the constitutional purpose.

Secondly, the court confirmed that the Emergency Management Act 2005 (WA) was constitutionally valid.

Finally, and perhaps the decision most in contention, the High Court endorsed the approach of structural proportionality when considering whether a burden on either limb of section 92 was "reasonably necessary."

This meant that the restriction of movement was reasonably necessary for the purpose of preventing the spread of COVID-19.

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" THE RESTRICTION OF MOVEMENT WAS REASONABLY NECESSARY FOR THE PURPOSE OF PREVENTING THE SPREAD OF COVID-19."

The IMPLICATIONS of this DECISION The High Court of Australia has always been reluctant to utilise the structural proportionality approach as it is only used in rare cases.

Palmer v WA will mark the first time this approach has been used since the High Court achieved consensus on the implied right to political communication.

The question is then raised: in what instance is it reasonably necessary for states to shut their borders?

The High Court’s decision demonstrates the judicial ability for constitutional interpretation. Whilst section 92 is in direct contention with the border closures, the public health and safety of the Western Australian residents was of higher concern. The Court failed to give specifics as to when section 92 could be overruled, however it was acknowledged that whilst the burden of interstate movement was of high severity, it was justified when considering the "importance of the protection of health and life."

This decision will act as a landmark case for two reasons. Firstly, it provided an instance where the Court allowed a state legislation to overrule a section of the Australian Constitution. Secondly, it demonstrated the power of the High Court to interpret the Constitution and make decisions on its relevance.

As with the implied freedom of political communication, section 92 will likely come under scrutiny again in the future, but it will ultimately be a question for the courts to decipher.

PHOTOGRAPHY ON THIS PAGE BY: S. Juhaszimr, M. Chai

Intellectual Property Laws Surrounding COVID-19 Vaccines

By Lily Parchizadeh

ore than 87% of COVID-19 vaccine doses have gone to high and M upper-middle-class income (HMIC) countries, while just 0.2% have gone to low-income countries (LIC).1 SHARE OF PEOPLE WHO RECEIVED AT LEAST ONE DOSE OF COVID-19 VACCINE, MAY 16 2021 0%

Share of the population that received at least one vaccine dose. This may not equal the share that are fully vaccinated if the vaccine requires two doses.

1%

5%

10%

20%

30%

40%

50%

60%

>70%

No Data

This inequity is mainly due to nations entering into Advance Purchase Agreements (APAs) with vaccine manufacturers to secure priority access to future vaccines.2 Although APAs may incentivise the development of products and fund trials,3 they will also lead to inequality, as only countries that can pay the most at the earliest stage of production get to the front of the

1

‘Low-income countries have received just 0.2 per cent of all COVID-19 shots given’, UN News (Online, 9 April 2021) <https://news.un.org/en/ story/2021/04/1089392>.

2 Alexandra Phelan et al., 'Legal agreements: barriers and enablers to global equitable COVID-19 vaccine access’ (2020) 396(10254) The Lancet 800.

SOURCE: Official data collated by Our World in Data

queue, disadvantaging LICs. For example, Australia is a party to four separate agreements for the supply of COVID-19 vaccines. Combined, these agreements will ensure access to approximately 150 million doses,4 enough to vaccinate three times Australia’s population (assuming each vaccine is a two-dose vaccine)!

3

Alice Cuddy, ‘Coronavirus vaccines: Will any countries get left out?’, BBC (online, 22 November 2020) <https://www.bbc.com/news/world-54961045>.

4 Department of Health (Cth), ‘Greater access – additional 10 million Pfizer/ BioNTech COVID-19 vaccines’ (Media Release, 4 February 2021).

" Although APAs may incentivise the development of products and fund trials, they may also lead to inequality, as only countries that can pay the most at the earliest stage of production get to the front of the queue, disadvantaging LICs." On the 16th of October 2020, to address the limited supply of COVID-19 vaccines, abide by APAs, and fulfil the needs of LICs, India and South Africa, two countries with robust generic pharmaceutical manufacturing capacity, proposed that the World Trade Organisation (WTO) waive intellectual property (IP) rights for COVID-19 vaccines and treatments under the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS).5 TRIPS is the most comprehensive multilateral agreement on IP,6 which allows vaccine developers to enforce patent protection. Under articles 28 and 33 of TRIPS, countries must grant patent holders exclusive rights to make, use, and sell treatments and vaccines for a minimum term of 20 years from the patent filing date. Thus, it is reasonable to assume that IP rights can restrict supply, exacerbate shortfalls in production capacity and lead to excessive pricing.7 India and South Africa’s proposal seeks to waive sections 1, 4, 5 and 7 of Part II of TRIPS, which address copyrights, industrial designs, patents and undisclosed trade information concerning the "prevention, containment or treatment of Covid-19 until widespread vaccination is in place globally, and the majority of the world's population has developed an immunity."8 Essentially, a waiver would allow vaccine makers in LICs to produce vaccines without facing legal action from the companies that hold patents on the products.

" Thus, it is reasonable to assume that IP rights can restrict supply, exacerbate shortfalls in production capacity and lead to excessive pricing."

Proponents of a waiver argue that patents are inappropriate for use during global emergencies such as wars or pandemics.9 They argue that the role of patents is to reward inventors by protecting their inventions from unfair competition for a limited time, and a pandemic is not a competition between companies but a race between humanity and a virus. As such, they propose that countries and companies need to do all they can to cooperate to bring the pandemic to an end.10 There is a precedent for this. During the Second World War, War Production Board (WPB) worked with 21 companies, five academic groups, and several government agencies, including the US Department of Agriculture (USDA), to establish large scale production of penicillin to protect US soldiers from infectious diseases.11 Despite this, wartime subsidies and technical assistance, together with a guaranteed market, made research & development (R&D) efforts profitable for the firms participating.12

5 Darcy Jimenez, ‘Covid-19 vaccine inequity: the debate over patent waivers intensifies’, Pharmaceutical Technology

(online, 13 May 2021) <https://www.pharmaceutical-technology.com/features/covid-19-vaccine-inequity-patentwaivers/>.

6 World Trade Organisation, TRIPS — Trade-Related Aspects of Intellectual Property Rights (Web Page) <https://www. wto.org/english/tratop_e/trips_e/trips_e.htm>.

7 Brian Mercurio, ‘WTO Waiver from Intellectual Property Protection for COVID-19 Vaccines and Treatments: A Critical Review’ (2021) Virginia Journal of International Law Online (Forthcoming).

8 Ibid.

"They argue that the role of patents is to reward inventors by protecting their inventions from unfair competition for a limited time, and a pandemic is not a competition between companies but a race between humanity and a virus."

Opponents to the waiver, including Pharmaceutical Research and Manufacturers of America (PhRMA), argue that there is no indication that IP rights have been a barrier to accessing COVID-19 related medicine and technology.13 Following the US decision to support a waiver of IP and patents for all COVID-19 vaccines during the pandemic, Pfizer submitted a parliamentary inquiry into vaccine fraud in Australia.

They argued that patents “may invite copycat medicines from suppliers that lack the knowhow to manufacture vaccines safely”, which could expose patients to “unsafe products” and could “potentially undermine public confidence in vaccine safety”.14 However, the Australian Competition and Consumer Commission’s (ACCC) Scamwatch figures from January to April 2021 indicates that, of the 793 reports mentioning COVID-19, with $2.4 million in reported losses, only 58 were related to COVID-19 vaccines, with no reported financial losses.15 So far, Australia has resisted calls for the WTO to waive patents on COVID-19 vaccines, which would allow more pharmaceutical companies to manufacture them in a bid to boost supply in developing countries. The hoarding of vaccines by HMICs and the lack of adequate vaccines to LICs will likely see more lives lost abroad and an increased risk of new variants of the virus emerging that the current vaccines cannot protect against. In short, the world will not be secure until the whole world is vaccinated.

"Commission’s (ACCC) Scamwatch figures from January to April 2021 indicates that, of the 793 reports mentioning COVID-19, with $2.4 million in reported losses, only 58 were related to COVID-19 vaccines, with no reported financial losses."

9 Editorial, ‘It’s time to consider a patent reprieve for COVID vaccines’ (2021) 592 The International Journal of Science 7.

10 Ibid.

11 Roswell Quinn, ‘Rethinking Antibiotic Research and Development: World War II and the Penicillin Collaborative’ (2013) 103(3) American Journal of Public Health 426, 428.

12 Bhaven Sampat, ‘Intellectual Property Rights and Pharmaceuticals: The Case of Antibiotics’ (Working Paper No 26, World Intellectual Property Organization, November 2015) 8.

13 World Trade Organisation, Members discuss intellectual property response to the COVID-19 pandemic (Web Page, 20 October 2020) <https://www.wto.org/english/news_e/news20_e/trip_20oct20_e.htm>.

14 Paul Karp, ‘Pfizer warns Australia a Covid vaccine patent waiver could harm supply and safety’, The Guardian (online, 13

May 2021) <https://www.theguardian.com/australia-news/2021/may/13/pfizer-warns-australia-a-covid-vaccine-intellectualproperty-patent-waiver-could-harm-supply-and-safety>.

15 Ibid.

By Michelle Chidiac

COVID-19 sent shockwaves around the world. People went from shaking hands to recoiling at just the sound of a nearby sneeze. Every individual has been affected in one way or another and the ramifications of ‘the new normal’ will continue to be witnessed in the coming years. The legal profession is just one of many professions significantly disrupted by COVID-19, forcing the advent and widespread use of technologies to enable the legal industry to remain productive by adapting to the changing times.

" People went from shaking hands to recoiling at just the sound of a nearby sneeze."

Evidence of the continuing advancement of technology in improving our everyday lives is ubiquitous, with the major benefits of increasing productivity, removing human error and replacing the need for humans in performing repetitive or mundane tasks. Even ordering your favourite bubble tea from Chatime or your go-to order from McDonalds no longer requires any interaction with an actual human. Whilst many industries already implemented such systems before COVID-19 existed, the pandemic has meant that more and more places have been forced to automate processes that can be done without being near a person. The increased use and rapid developments in the technological sphere means that things can be done a lot faster and more easily, liberating

people from mundane, repetitive tasks, and consequently allowing them more time to use their intellect and creativity.

With regards to the legal industry in particular, extended lockdowns and the need for staff to work from home have shed light on the significant areas of improvement required for the internal processes existing within many law firms.

A prime example of this can be seen in legal firms that were heavily reliant on paper or running their own servers which have been forced to adopt more modern IT practices to ensure continued workflow and productivity. In this way, the pandemic boosted the slow-moving search by legal professionals for ways to streamline their systems and processes and enforce structural changes.

" things can be done a lot faster and more easily, liberating people from mundane, repetitive tasks..."

Moreover, the pandemic demonstrated the feasibility of delivering legal services virtually, seeing how work-from-home arrangements can work more efficiently than many firms imagined, by providing a greater work-life balance. Zoom meetings have allowed many legal professionals to take a deep sigh of relief when a weekly team meeting in the office can be conducted via video from the comfort of their home desk. The full potential of such online meetings is being realised, paving the way for less meeting-related travel in the future and enabling online sessions for various courts and tribunals around the world.

33

A recent case study of this was the emergence of the platform Josef in 2021, with its creator Melbourne-based technology company pitching itself as an "automation workbench for every legal professional in the world."1 The platform aims to empower lawyers and legal professionals by automating repetitive tasks including client interactions, email correspondence and generating legal documents. The inspiration for the company name was the character 'Josef K.' from Franz Kafka's The Trial, in which the protagonist is faced with a great deal of confusion in the legal world, and no lawyer will help him understand what he has been charged with or what his rights are. As the creator of the platform explains, “Josef is about making legal services more accessible". The company has

created early success in establishing itself as a market leader in legal automation, currently being used by the likes of MinterEllison, Herbert Smith Freehills and the Consumer Action Law Centre. Similarly, Melbourne-based company SettlePro is seeking to roll out an online calculator to help family lawyers fast-track their property settlements for clients, reducing the time spent entering client details into an online questionnaire.2 These recent examples just scratch the surface of the legal technology revolution that has been catalysed by the pandemic, and the likely trend that is to follow. There is no doubt the world will see further innovation and developments in technology, which will remove the need for humans to carry out repetitive tasks.

" Zoom meetings have allowed many legal professionals to take a deep sigh of relief when a weekly team meeting in the office can be conducted via video from the comfort of their home desk..."

In summary, the COVID-19 pandemic has truly been a wake-up call for many legal professionals, forcing them to open their minds to new ways for staff to complete tasks remotely, while continuing to provide the support and results their organisation requires. For all the mundane and repetitive tasks that legal professionals dread doing, continued innovation in technology means that certain tasks could become completely replaced with newer and more efficient softwares, allowing lawyers to focus on the real lawyering in this ‘new normal’.

1 2

34

Matt Ogg, ‘Legal tech Josef raises $2.5m for automation platform expansion’, 18 May 2021, Business News Australia, < https://www.businessnewsaustralia.com/articles/legal-tech-josefraises-2-5m.html>.

Sam McKeith, ‘The must-have legal technology tools for 2021’, February 16 2021, The Law Society Journal, < https://lsj.com.au/articles/the-must-have-legal-technology-toolsfor-2021/>.

cultural due diligence

By Hue Pham

/

/

We don’t know what we don’t know –

How COVID-19 exposed deficiencies in corporate cultural due diligence As we emerge from a COVID-19 induced economic downturn, corporate mergers and acquisition activity rises.1 A cultural fit between merging companies is critical to the success of these integrations.2 A lack of cultural cohesion is a major reason an integration will fail.3 The ability for merging entities to conduct a “cultural due diligence” to identify potential cultural rifts, and implement sufficient transitional measures is necessary to maximise planned merger value. This article will outline the new challenges faced by merging companies in conducting cultural due diligence in the wake of the COVID-19 pandemic. In summary — although the pandemic has resulted in the widespread adoption of flexible working arrangements, this should not prevent effective cultural due diligence from taking place. However, the effect of flexible working arrangements will very much reshape the notion of what corporate culture means in a post-pandemic corporate landscape.

1 2 3

Joshua rF anklin and Pamela Barbaglia, G ‘ lobal M&A sets ffirstuq arter record as dealmakers shape post-COVID world’, Reuters (London, 1 April 2021).

Article continues over page.

Yaakov Weber, C ‘ orporate cultural ffit and performance in mergers and acquisitions’ (1996) 49(9) Human Relations 1181, 1182.

Nailia Tasseel, ‘ffie missing chapter: why emotional buy-in is critical for successful M&A’, The Storytellers (Web Page) < https:/ thestorytellers.com/the-missing-chapter-why-emotional-buy-inis-critical-for-successful-ma/>

35

What is corporate culture & why does it matter?

/

/

A universal definition of “corporate culture” is elusive. The broadest definition of corporate culture would capture any aspect of a company’s behaviour that may potentially affect financial success.4 This would include the overall vision that drives a company’s activities; the values and principles that guide the behaviour and decisions of its employees and the practices adopted by managers that characterise how work in the company is done.5 However, this broad definition of corporate culture means that unlike the economic or financial data that underpins the majority of M&A activity, corporate culture is something that is difficult to quantify and represent on a data spreadsheet.

It begs the question — why does any of this matter? While there are financial motivations behind every integration, participants in a merger are human and therefore, are also driven by the cultural motivations. A failure to address these cultural disparities between merging companies can significantly reduce the likelihood of successful integration both in the long and short term.6 Employees, managers, executives, and other stakeholders who engage with the company influence the corporate culture of a corporation. A merger that expects compliance with a newly imposed set of values, principles or business ideals risks immediate disruption, and long-term irreparable internal conflict.7 However, assessing cultural compatibility is an already complex task that now has a new set of challenges to the logistical obstacles that have risen in the wake of COVID-19.

" In the wake of pandemic, rem

working arrangements have ca

4 5 6 7

36

Sladana Savovic and Verica Babic, ‘Impact of behaviour factors on acquisition performance: mediating role of speed of post-acquisition change’ (2021) Journal of Organizational Change aM nagement 1, 2.

Shlomo Tarba et al, ‘The impact of organizational culture differences, synergy potential, and autonomy granted to the acquired high-tech rms on the M&A performance’ (2019) 4(3) rG oup & Organization aM nagement 483, 485 Isaac Dixon, ‘Culture management and mergers and acquisitions’ (2005) Society for Human Resource aM nagement.

Joon-Hee Oh and Wesley Johnston, ‘How post-merger integration duration aThects merger outcomes’ (2021) 36(5) Journal of Business & Industrial aM rketing 807, 810.

disconnect between employees

traditional physical workpla

How has corporate due diligence been affected by the COVID-19 pandemic?

/

/

The COVID-19 pandemic has created new and unique obstacles in regards to corporate due diligence. Many of these obstacles will remain a permanent feature of the legal world and become the “new normal”. The issue is two-fold: the future of corporate culture itself, and the ability to assess cultural compatibility in a post-COVID landscape.

Firstly, corporate culture is set to undergo a fundamental change with the adoption of flexible working arrangements. The traditional physical working environment has a crucial effect on the cultural development and working relationships amongst employees, and between employees and managers.8 This is particularly true for younger employees such as trainees and graduates. In the wake of the pandemic, remote working arrangements have caused a disconnect between employees and traditional physical workplaces.

It’s not clear how corporate culture will continue to develop in a more virtually-focused working environment where interactions between staff will primarily take place over a screen rather than in person.

Secondly, as a result of the pandemic, the majority of meetings have been taking place virtually via Zoom and Teams. Teams in charge of making deals regarding M&As may find it more difficult to make an assessment of a corporation’s culture with no exposure to the inner-workings of a company which would have been evident in face-to-face interactions.9 Regardless of working from office arrangements returning, many companies will be implementing flexible working arrangements. This means that at any given time, key employees may be working remotely. A survey by McKinsey showed that cultural due diligence is a concept that is difficult to represent numerically, and that corporate culture is achieved in part by “gut feelings”.10 It will be fascinating to see the way corporations will achieve this if the majority of interactions are occurring virtually.

mote

aused a

s and

8

aces."

9

i B n Wang et al, c‘A hieving e6ective remote working during the VI CO D-19 pandemic: a work design perspective’ (20) [published online ahead of print, 5 o N vember 02] Applied Psychology , doi:10.1/apps.1290 Article continuesforces’, over page.

Oliver Engert et al, r O ‘ ganizational culture in mergers: addressing the unseen McKinsey & Company r (A ticle, 26 a M rch 2019) < https:/www.mckinsey.com/businessfunctions/organization/our-insights/organizational-culture-in-mergers-addressing-theunseen-forces>

37

Can merging companies counteract these issues?

" The pandemic has shown us that we simply don't know what we don't know."

38

/

/

At a high level, merging entities will need an integration plan that is flexible and framed for the unknown. The pandemic has shown us that we simply do not know what we do not know. As it has been outlined, the notion of corporate culture post-COVID is set to undergo a dramatic evolution with remote working arrangements. In preparing for that evolution, a post-COVID M&A strategy should engage with new technological means of cultural fact finding. This will need to be reinforced by placing greater emphasis on contingencies incorporated as part of the deal structure. At this early stage, it is suggested that material adverse effect provisions, as well as COVID-related representations and warranties should be subjected to scrutiny. At the same time, dealmakers should request further information relating to human resourcing such as leave, turnover and working arrangements to reinforce cultural data. To the extent that COVID-19 has exacerbated incapacities to gather cultural information shaping post-merger cultural compatibility, the legal and risk mechanisms to secure expected deal value will evolve in turn.

Following the COVID-induced widespread normalisation of working from home arrangements, remedying cultural pitfalls in any corporate integration is a difficult task. The COVID pandemic has compounded the hurdles for negotiating and effecting successful corporate mergers, particularly on the cultural front. This will translate into new deal structures, and the use of new strategies for conducting effective cultural due diligence. However, the specifics of these remain to be determined, as the very notion of what corporate culture entails is set to fundamentally change in the post-COVID normal.

PHILOSOPHISING PANDEMIC POLICIES "Justice is the first virtue of ..social institutions" 1 — JOHN RAWLS

By Ashley Sullivan

As COVID-19 entered the globalised world, the interconnecting institutions upholding society were confronted with balancing personal liberties alongside collective interests for public wellbeing.

Plummeting the world into a state of emergency, COVID-19 has transformed Australia's slow-paced legal system into one that responds promptly and pragmatically to the ever-changing landscape.

Enacting legislative changes to address COVID-19 response measures, restrictions involving movement, social contact, and personal protective equipment has incited polarising debate on social institutions' ethical responsibility in impeding individual autonomy. In exploring the implications of the pandemic on limiting the populous' liberties, the philosophical theories of Utilitarianism, Libertarianism, and Kantianism offer competing notions of a just society.

Producing a distinct and daunting threat to the wellbeing of the population, the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 of COVID-19, as a 'listed human disease' under the Biosecurity Act 2015 (Cth) marks the first case of using Australia's human biosecurity emergency powers.

The legislative framework grants expansive powers to the Health Minister to regulate the movements of persons, goods, or conveyances to prevent or control the spread of COVID-19 in Australia.2 Reaching far beyond the scope of the NSW Public Health Act 2010, the pandemic potential of the virus had led to a nationally mandated activation of restriction rules. As such, the Australian public has expressed mixed reactions to the government’s response to suppress the pandemic.

1 2

John Rawls, A Theory of Justice Revised Edition (Harvard University Press, 1999) 3.

Biosecurity Act 2015 (Cth) ss 477(3)(b).

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UTILITARIANISM

noun. [yoo-ti-luh-teuh-ree-uh-ni-zm]

" UTILITARIANISM draws upon measuring its utility in producing the most wellbeing for an overall population."

I

n locating the morality of an act, Utilitarianism draws upon measuring its utility in producing the most wellbeing for an overall population. Initially conceived by Jeremy Bentham as an idea of balancing happiness over suffering by maximising "the greatest amount of good for the greatest number,"3 Utilitarianism applies to the creation of laws that bring about the best consequences for the greatest number of people. Within the current crisis, the implementation of Utilitarian policies has grown in frequency as the state struggles to balance the prevention of deaths through restrictions on employment, economy and personal freedoms. As such, the Utilitarian approach is in strong favour of 'herd immunity', and its bid to protect wellbeing suggests an incentive to override the right to liberty and privacy. The strict quarantine measures, intensive contact tracing and heavy penalties against non-compliance as exhibited in Singapore, Hong Kong and Taiwan mirror the Utilitarian notion of collectivist action for the common good, no matter how uncompromising.4 Yet, in Western nations, it appears that there is a common belief that sacrificing liberties is too extreme.

3 4

40

The History of Utilitarianism, Stanford Encyclopedia of Philosophy (22 September 2014) <https://plato.stanford. edu/entries/utilitarianism-history/>.

Brian Y.An and Shui-Yan Tang, ‘Lessons From COVID-19 Responses in East Asia: Institutional Infrastructure and Enduring Policy Instruments’ (2020) 50(6-7) The American Review of Public Administration 791.

LIBERTARIANISM

noun. [li-buh-teuh-ree-uh-ni-zm]

" Libertarianism holds that the fundamental individual right to life, liberty and property is so important that no government can violate it."

T

HE authority of state powers in placing legal obligations on its citizens to mitigate the impact of COVID-19 has had far-reaching implications for the economy, human relationships, mental health and most notably, personal autonomy. Libertarianism holds that the fundamental individual right to life, liberty and property is so important that no government can violate it.5 Opposing the utilitarian idea of collective happiness by asserting that we are the proprietors of our persons, Libertarian's value of selfdetermination and minimal government interference have been thrown into turmoil under COVID-19 restrictions. From this perspective, the encroachment of intrinsic personal rights cannot be justified by the objective of reducing the death rate.6 This beckons the controversial question: "Are social distancing and lockdown restrictions worth the removal of rights previously enjoyed to the detriment of the nation's economic and emotional wellbeing?". This disagreement with the government's enforcement of health policies is most vehemently expressed in the United States, with frequent anti-mask and anti-stay-at-home protests reflecting a fixation on protecting individual liberties and having distrust in the state. While Australia has experienced its fair share of resistance, the overwhelming compliance with mandatory quarantine and maskwearing protocols has enabled the nation to enjoy increased freedoms as a result of effective suppression of the virus.

5 6

Libertarianism, Stanford Encyclopedia of Philosophy (28 January 2019) <https://plato.stanford.edu/entries/ libertarianism/>.

Gerald Delanty, ‘Six political philosophies in search of a virus: Critical perspectives on the coronavirus pandemic’ (Discussion Paper, LSE ‘Europe in Question’, May 2020) 4.

41

KANTIANISM

noun. [kan-tee-uhn-ni-zm]

" Kantianism calls for true justice to be achieved by ensuring that no policy or prohibition overrides the value of human dignity."

A

RGUING that each of us is entitled to be treated with respect as rational agents, the dignity of every human life is at the forefront of Kantian philosophy.7 In the context of COVID-19, Kantianism calls for true justice to be achieved by ensuring that no policy or prohibition overrides the value of human dignity. Rejecting the Utilitarian notion that morality should be based on maximising happiness, Immanuel Kant postulates that humans are never to treat others merely as a means to an end, but always as ends in themselves.8 Through this notion, it's clear that Kantianism's' centrality of individual autonomy over the common good shares many more similarities with Libertarianism, yet their reasoning behind pandemic policies differs. Where Libertarianism opposition against COVID-19 legislation stems from limiting individual freedoms through mandatory lockdowns, the qualms of Kantians arise from health decisions that prioritise saving the greatest number of people based on whose needs are more significant. In the case of vaccine rollouts, a Kantian position opposes the privileging of at-risk groups or higher survival-rate groups by asserting that people's equal moral worth entails fair vaccine distribution in a random manner.9 According to philosopher Jürgen Habermas, "the efforts of the state to save every single human life must have absolute priority over a utilitarian offsetting of the undesirable economic costs".10 Yet, how realistic is this demand in the face of COVID-19's grip on the death toll?

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Rachel Bayefsky, ‘Dignity, Honour, and Human Rights: Kant's Perspective’ (2013) 41(6) Sage Publications 809.

Treating Persons as Means, Stanford Encyclopedia of Philosophy (13 April 2019) <https://plato.stanford.edu/ entries/persons-means/>.

John R.Stone, ‘Social Justice, Triage, and COVID-19’ (2020) 58(7) Medical Care.

Gerald Delanty, ‘Six political philosophies in search of a virus: Critical perspectives on the coronavirus pandemic’ (Discussion Paper, LSE ‘Europe in Question’, May 2020) 2.

FORMULATING A JUST RESPONSE?

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HE precarious reality of COVID-19 has set forth a multitude of conflicting approaches towards legal, economic and healthcare policies in the pursuit of securing the wellbeing of the state. Utilitarianism, Libertarianism, and Kantianism offer a unique perspective towards deliberating policy decisions and outcomes, and each holds implications for a just worldview. For most of the pandemic, Utilitarian principles have influenced many policies that seek to save the greatest number of people, provided it is the most efficient way of maximising overall wellbeing. While Libertarians criticise the curtailing of freedoms for being too radically authoritarian, and Kantians fault the calculative attitude towards human dignity, Liberal governments are all too acquainted with facing criticism for failing to secure public health by persevering liberty.11 No matter the course of actions, there will always be opposing opinions to what makes a society just. Ultimately, the pandemic has placed a moral obligation on all of us to collectively act together to overcome the threat of COVID-19. In neglecting our duty to support the wellbeing of society, we are acting unjustly towards our fellow citizens.

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Julian Savulescu et al, ‘Utilitarianism and the pandemic’ (2020) 34(6) Bioethics 630.

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