Could an artificially intelligent device practise as a barrister in New South Wales?

By Jack Mars and Riley Vaughan (USYD)

Our legal system is the culmination of human scholarship, philosophy, and societal development. In the modern age, it’s natural to question whether the nuanced understanding of this system and the art of advocacy is something which can only be mastered by a human. As a surgeon’s hands are replaced with robotic arms, is it now the lawyer’s turn to be condensed, perfected, and replaced?

The question has been raised before! Isaac Asimov tells us the story of Stephen Byerly in his collection of short stories, “I, Robot”. Byerly is a promising political candidate, a district attorney and, crucially, an alleged robot. Asimov never reveals the true anatomy of Byerly, and the questions which he asks his readers are still being wrestled with today. To ask whether an AI could practice as a barrister is to examine human insecurity and scepticism. 

The roles of the barrister might be conveyed simply: to prepare advice; to negotiate and arbitrate; and, to appear as an advocate for their client, beholden always to their overriding duty to the administration of justice. The first of these roles is shared by the solicitor. The second is shared with mediators. The third has always been the exclusive realm of the barrister. 

No matter how straightforward a client may seem, each word they utter, each act they complete, and each omission they neglect, lives in a grayscale void between right and wrong. The barrister’s role as an advocate is to colour each of those facts, both with their knowledge of the law and knowledge of humanity, to convince a judge or jury that their client deserves the benefits of justice. 

Most artificial intelligence relies on an algorithmic method known as “Deep Learning.” To escape semantic debates which would make a computer scientist blush and a lawyer cry out for their copy of Statutory Interpretation in Australia, we can say that Deep Learning is a type of AI which models its processes off a human brain. The problem is that these techniques are inherently, and entirely, data driven. There are researchers who believe that more data will yield more intelligent AIs—that “scale is all you need”. However, these algorithms struggle with nuance. It is extremely difficult to generate the nuanced data sets required for general learning. Imagine an AI being trained to caption images. Perhaps it could identify general objects and locations, but it cannot infer key relationships. Where a human might say, “that man is stealing her bag,” the computer will say, “there is a man, a woman, and a bag.”

Artificial intelligence as it exists today is not remotely close to replicating the role of an advocate. So, fear not! That barrister you suspected of being an unemotive android at the café outside Court was in fact just taking section 44 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 far too far. 

But what about tomorrow? While there isn’t much hope of a General Artificial Intelligence appearing overnight, it would be naïve to think that it couldn’t exist one day. The imagination of scientists and engineers is stirred by the science-fiction of the past, and that stirring seems to inevitably result in progress. Without pretending to be able to give it a timeline, we posit that given enough time, an artificially intelligent advice will one day be able to understand the entirety of the law, the entirety of a set of facts, and human emotions. It follows that one day, an AI device could practise as a barrister.

But having dealt with whether, perhaps we should turn to what seems to be a bigger question: when the work of an advocate is intensely personal, why would we want barristers that aren’t human?

The obvious answer is that automation could improve access to justice: if everyone had cheap and easy access to the most knowledgeable barrister in the field of their issue, the world would be a more just place. If an AI device could perform succinct legal analyses, barristers could focus more on advocacy and less on paperwork.

But that automation will inevitably benefit the rich before the needy: while ‘BarristerBot’ is being improved upon, barristers who charge higher fees will be able to pay for and make use of it, improving their success against clients who can only afford barristers who charge less.

Consider a hypothetical. Far into the future, if two opposing clients were each to hire a perfect ‘BarristerBot’, would there be any need for an adversarial trial? They could simply negotiate the facts and decide upon the correct outcome, eliminating the role of the Court or assuming the role of a Judge. Perhaps the role of the barrister is one which not only thrives on greyscale and imperfections but utterly depends on them. 

There are still many valid questions, hypotheticals which only the aeons ahead of us might answer. Questions asked by Isaac Asimov, still being asked today, may go unanswered for millennia, or forever.

Suppose you are amid a long and onerous legal battle. The dispute is bitter, the fees enormous, and the consequences are grave. You have employed a ruthless and unsympathetic barrister. You have never seen them eat nor drink, rest nor pause, nor even break a sweat amidst the muggy crowds of Martin Place. They epitomise the cold and heartless lawyer—you’re delighted by how inhuman this barrister can be.

Suppose that your barrister is Asimov’s Stephen Byerly, accused of being an artificial creation. He never graduated law school, he never crammed over tomes, and he never found himself craving caffeine or suffering a clerkship. Would you really care?

My deep-learned friend: stepping into the AI shadow

By Anson Lee and Janika Fernando (USYD)

Silence. The Federal Court of Australia is now in session. Please be seated.

“Yes, Smith for the Applicant.”

The barrister is cloaked in a white tunic and black robe. All eyes are on them. The Applicant? A father claiming for his rights to child support.

Advocacy. This is the heart of the barrister’s role, their duty to their client and ultimately, the Court.[1]

But let’s rewind and imagine an AI device in the barrister’s place. What would change?

…

“AI appearing for the Applicant, identifier C9M…”.

Introducing AI, the lightsaber to the legal world! It glows with many possibilities, yet promises many dangers if wielded improperly. AI is capable of assisting with legal research, evidence gathering and drafting submissions, but further development is required for it to operate autonomously as an advocate.

Journey through Trial

Any competent AI barrister must map facts of a case and solicitors’ instructions onto the relevant legal principles to frame its arguments. Broadly, AI systems rely on existing data to make decisions in novel scenarios.[2] Handwriting recognition systems are fed millions of handwritten letters to discover patterns, allowing them to convert our scribbles into print. However, the letter of the law in NSW, being an amalgam of common law and statute, is far more complex than the letter ‘a’.

As a starting point, the AI barrister could perform searches in a legal database or encyclopaedia to find existing cases with similar facts. It would then independently distil the relevant principles and generate submissions applying them to the specific case. This final step is the hurdle current AI must overcome; despite improving at a rapid rate, even the best text synthesis AIs appear amateurish beside a practiced mooter. More interdisciplinary collaboration is necessary to connect the niche realm of legal language with these approaches – which are built on a broader collection of text – to make our AI articulate.

The general virtues of AI lie in its efficiency. Human exhaustion and certain cognitive biases are escaped,[3] potentially reducing weeks of cursory research and evidence gathering to mere minutes using techniques like sentiment analysis.[4] However, these tools struggle in detecting subtle cues such as ambiguous or niche language, reducing the quality of analysis.

AI also risks inheriting our human biases in the form of ‘algorithmic bias’,[5] where socioeconomic inequalities in the training data are imported into the model.[6] Women, for example, represent just 11% of Senior Counsel in NSW,[7] meaning the rhetoric employed by men will have an outsized influence on the AI’s own. Conversely, by approaching model training with diversity in mind, we can make a conscious effort to combat these stereotypes by selecting more equitable samples.

The ethics of it all

According to the Uniform Laws,[8] a barrister owes a paramount duty to the court and the administering justice. However, an AI barrister may undermine respect for this duty because rules are difficult to enforce against a non-sentient actor. If an AI misbehaves, the fault is untraceable to an individual due to its organic development. This ambiguity is multiplied when an identical AI program is installed across multiple devices and users; must all copies be modified or destroyed because of a few bad apples?

The fact that AI barristers can be replicated at minimal cost suggests the resolution of certain access to justice problems for vulnerable community members. Conversely, low-cost internet services often monetise user data with third parties, and the data exchanged between clients and lawyers is often the most revealing kind, raising significant privacy concerns. Quite separately, current confidentiality standards are directly counterposed to the data-driven way in which AI learns; its skill to draw inferences from evidence stagnates if it cannot not use privileged data as its learning material. To protect clients’ interests consistently with the barrister’s ethical duties demands significant regulation of such AI legal services.

The proliferation of AI could also strip justice of an intrinsically human element. While AI offers efficient analysis of law and evidence, the human barrister has the ultimate and more reliable capacity to make judgement. Judgement includes a myriad of empathy, creativity and experience.[9] Imagine an immigration matter with a non-English speaking applicant. Yes, an AI device has its machine learning case law analysis demonstrating experience, but empathy is required for judgement. The appearance of justice is arguably as crucial as its execution.[10] The parties must feel included, whereby the barrister helps the applicant understand their submissions, thereby facilitating access to justice.

Taking a long view

For better or worse, human norms are responsible for what a ‘barrister’ looks like. While our intrepid AI barrister may eventually create a sea-change in this perception, it will initially compete alongside us. Humans display a well-observed scepticism towards imperfect imitations – the ‘uncanny valley’ effect.[11] Even amongst judges, Richard Susskind identifies a historically conditioned trust of traditional hearings over technologically-enabled ones that obstruct the way of AI-human parity for years to come.[12] Nevertheless, watershed moments have created seismic shifts in public perception before, like when IBM’s Deep Blue computer defeated Garry Kasparov in chess.[13] Equally, a unanimous High Court judgment in favour of an AI-staffed Appellant could breathe change into our baroque chambers.

Our hypothesis is that the AI barrister will begin its career in an assistive capacity, preparing draft submissions and combing through evidence. As the models for speech synthesis improve, it will develop a more autonomous practice, culminating in polished courtroom advocacy. It’s too early to tell whether or not the AI barrister is ‘to be or not to be’. The AI barrister is certainly more than the shadow it casts. One can see that the AI barrister is enshrined in its efficiencies, from wielding the light to performing legal research and case management faster than ever before! Not to mention the endless programming possibilities that hold the key to coding languages and recognising diverse characteristics. But given the complexity of coding laws, privacy and the need to preserve human advocacy, challenges lie for the AI to ‘play its many parts’ in its grand ‘stage’ of the Court.

Endnotes

[1] Hon. Marilyn Warren AC, ‘THE DUTY OWED TO THE COURT – SOMETIMES FORGOTTEN’ (Speech, Judicial Conference of Australia Colloquium, Melbourne, 9 October 2009).

[2] Steven Bozinovski, ‘Teaching space: A representation concept for adaptive pattern classification’ (1981) 81(28) COINS Technical Report.

[3] Michael Legg & Felicity Bell, ‘Artificial Intelligence and the Legal Profession: Becoming the AI-enhanced Lawyer’ (2019) 38 (2) University of Tasmania Law Review, 34-59.

[4] As I describe this to the embattled barrister sitting across from me, his eyes sparkle.

[5] Lisa Toohey, Monique Moore, Katelane Dart and Dan Toohey ‘Meeting the Access to Civil Justice Challenge: Digital Inclusion, Algorithmic Justice, and Human-Centred Design’ (2019) 19 Macquarie Law Journal 133,148.

[6] For an example of this in popular culture, see: Davey Alba, “It’s Your Fault Microsoft’s Teen AI Turned Into Such a Jerk”, Wired (Webpage, 2016).

[7] NSW Government Equitable Briefing Report, 2018-2019 Financial Year: NSW Government Equitable Briefing Policy for Women Barristers, (Report No 1, 2018-2019) 4.

[8] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), s 4.

[9] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), s 4.

[10] Rex v Sussex Justices [1924] 1 KB 256.

[11] Maya B. Marthur & David B. Reichling, ‘Navigating a social world with robot partners: A quantitative cartography of the Uncanny Valley,’ (2016) Vol. 146, ScienceDirect Journal, 22-32.

[12] Richard Susskind, ‘Online Courts and the Future of Justice’ (Oxford University Press, 2019) 206-7.

[13] ‘Game Over: Kasparov And The Machine’ (ThinkFilm, 2003).

Could an Artificially Intelligent Device Practise as a Barrister in NSW?

By Jarrod Li, Stephanie Tong, and Bob Chen (UNSW)

I INTRODUCTION

Artificial Intelligence (‘AI’) has undoubtedly made great strides in the legal field over the past decade. Despite these technical breakthroughs, debate continues to surround the claim that AI can adequately replicate the various roles of counsel in Australia. A barrister’s skill does not lie solely in their mastery of crafting submissions and traversing law reports–instead, their role ranges anywhere from advocate to advisor to perhaps mediator on occasion.[1] Additionally, NSW barristers must observe a set of statutorily defined prescriptions, which embody their independence, professionalism, impartiality, and overriding duty to the administration of justice.[2] We argue that, at least presently, an AI device cannot receive a “call to the bar” because technological and cultural challenges prevent it from adequately embodying a barrister’s roles and values as advocates and advisors.[3]

II ADVOCACY

From a technical perspective, a barrister’s role as an advocate can feasibly be modelled as a product of natural language processing (‘NLP’) techniques, with data sourced from transcripts of oral arguments, submissions, and extralegal literature. In essence, it would be possible for an AI to model the behaviour of an advocate after “training” or “learning” from data that is representative of the typical legal activity of a barrister.[4] However, the use of NLP in advocacy is problematic. This is because the quality of an AI system is heavily correlated with the quality of its training data. It necessarily follows that AI works best with structured and routine tasks where large amounts of high quality and consistent data is available. Accordingly, there has been demonstrated use of AI in the legal field in these areas–see, e.g., document review and discovery.[5] That said, advocacy is far less structured and routine, raising a number of issues.

First, the law is rapidly evolving in response to technological developments, as is clear from its frequent application to novel fields and modern industries. For example, consider advances in intellectual property,[6] cybersecurity,[7] and defamation,[8] as among the fore of this cursory discussion. It is practically impossible for an AI device to advocate in these areas, as pre-existing data is lacking.[9] A similar issue arises from the amount of unstructured and unpredictable human interaction that occurs during advocacy.[10] Accordingly, those who foresee AI as a replacement for counsel are sorely misled, given current AI models are unable to ingest data at the frequency and breadth demanded of both human barristers and legal institutions.[11]

Second, assuming a sufficiently large machine learning model were to exist, the quality of its output is largely dependent on the integrity of its training data. More precisely, ingesting data marked with human biases can instil discrimination into the AI system.[12] This is a well-recorded phenomenon, and often highlights otherwise unknown human biases–e.g., the Amazon recruitment AI trained on existing workplace data highlighted systemic gender bias within the company after continuously rejecting female applicants.[13] This problem is of particular concern within the law, given the well documented cognitive biases that exist in judicial decision-making and the legal profession at large.[14] Consider, for example, the well documented racial biases that exist in assessing witness credibility.[15]

III ADVISORY

Barristers also play a significant advisory role. Without oversimplifying, this role encompasses the ability to lead litigation with the best interests of their clients in mind.[16] One aspect of this role inevitably involves advising whether their clients have a reasonable prospect of success, for which AI has seen notable success in accurately predicting litigation outcomes. For example, “software such as Ravel Law and Lex Machina have collected and analysed massive amounts of data on judges and their decisions, producing data-driven statistical model[s] … that are often more accurate than human prediction.”.[17] However, this is only one aspect of a barrister’s advisory role.

Other aspects of advisory are structurally underpinned by the human experience. For example, a barrister’s ability to formulate legal opinions is key. However, these opinions involve determining what facts should be given weight, what details are relevant, and what opinions are credible, all of which are dependent on human instinct derived from their experience in the field. It is the wide-ranging variety of these perspectives that prompts courts to frequently acknowledge that “two reasonable minds may differ'' on the same issue.[18] Additionally, when providing advice, barristers must possess the capacity to establish close relationships with their clients. It has been readily demonstrated that ‘relational skills were preferred over legal skills’[19] by clients when seeking representation, and forming strong relationships is key in achieving better legal outcomes. Accordingly, it is clear that the advisory role of barristers unavoidably relies on human experiences that must be modelled in any “AI barrister” for it to adequately replace a human. This is problematic, as it is not yet technically feasible to accurately model the inherently complex and discursive aspects of human experience in AI. Simply put, attempts to model human emotions, biases, and perspectives suffer from the “curse of dimensionality”.[20] While AI can be reasonably trained on a single skill, each additional skill that needs to be modelled adds dimensions of complexity. As there are many skills required to model the human experience, this quickly becomes inefficient and impractical.[21]

III CONCLUSION

In conclusion, the current state of AI is unable to replicate the complexity of a barrister’s role in the NSW legal system. We therefore argue that AI devices cannot practice as a barrister in NSW. Although recent developments have seen AI continue to accelerate in speed and capability, many fundamental issues persist in preventing the systemic integration of AI into our legal system. We expect the next 5-10 years to be characterised by massive leaps in algorithmic and computational legal development, especially as collaboration continues to develop between the legal and computing disciplines. Moving forward, the evolution of an “AI barrister” will inevitably necessitate broad inquiries into the data, reasoning processes, biases, and prominence of higher level thinking skills underlying each developed solution.

Endnotes

[1] New South Wales Bar Association, ‘Using barristers’, What is a barrister? (Web Page, 14 September 2022).

[2] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 3-4 (‘Barristers Rules’).

[3] For previous work on this issue, see, eg, Geoffrey Nettle, ‘Technology and the law’ (2017) 13 Judicial Review 185; Tania Sourdin, ‘Judge v Robot? Artificial Intelligence and Judicial Decision-Making’ (2018) 41(4) University of New South Wales Law Journal 1114.

[4] Michael Legg, ‘Artificial Intelligence and the Legal Profession: Becoming the AI-Enhanced Lawyer’ (2019) 38(2) University of Tasmania Law Review 34, 41.

[5] Dana Remus and Frank Levy, ‘Can Robots be Lawyers? Computers, Lawyers and the Practice of Law’ (2017) 30(3) Georgetown Journal of Legal Ethics 501, 504.

[6] Thaler v Commissioner of Patents [2021] FCA 879.

[7] Australian Securities and Investments Commission v RI Advice Group Pty Ltd (2022) 160 ACSR 204.

[8] Google LLC v Defteros [2022] HCA 27.

[9] Remus and Levy (n 5) 526.

[10] Ibid 514.

[11] Ted Goertzel, ‘The path to more general artificial intelligence’ (2014) 26(3) Journal of Experimental & Theoretical Artificial Intelligence 333, 351.

[12] Felicity Bell et al., ‘Ai Decision-Making and the Courts. A guide for Judges, Tribunal Members and Court Administrators’ (Report, 2022) 13.

[13] Ibid.

[14] See generally, Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and the Law on Bias (Report No 138, 2022).

[15] See, eg, Andrew Elliot Carpenter, ‘Chambers v. Mississippi: The Hearsay Rule and Racial Evaluations of Credibility’ (2002) 8(1) Washington and Lee Journal of Civil Rights and Social Justice 15.

[16] Barristers Rules (n 2) r 35.

[17] See Xiao Liu et al., ‘Everything Has a Cause: Leveraging Causal Inference in Legal Text Analysis’ (Conference Paper, Proceedings of the 2021 Conference of the North American Chapter of the Association for Computational Linguistics: Human Language Technologies, June 2021).

[18] For typical usage in a variety of contexts, see, eg, Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356, [90]; Australian Broadcasting Corporation v SAWA Pty Ltd [2018] WASCA 29, [94]; R v Campbell [2005] VSCA 225, [45].

[19] Marcus T Boccaccini and Stanley L Brodsky, ‘Attorney-Client Trust among Convicted Criminal Defendants: Preliminary Examination of the Attorney-Client Trust Scale’ (2002) 20(1) Behavioral Sciences & the Law 69.

[20] See Francis Bach, ‘Breaking the Curse of Dimensionality with Convex Neural Networks’ (2017) 18(1) Journal of Machine Learning Research 1, 1-2.

[21] See generally, Effat Jalaeian Zaferani, Mohammad Teshnehlab and Mansour Vali, ‘Automatic Personality Traits Perception Using Asymmetric Auto-encoder’ (2021) 9 IEEE Access 68596.

Notes on Rupture

Highly Commended in the SULS Writing Competition 2021

By Grace Roodenrys (LLB III)

It’s almost invisible,

a cleaving as slight

as the stitch

between one second

and the next.

See how a world

can stop

and start again,

how it can fall out of time

like a sentence

rearranging its tense.

Picture a butterfly

lifting off a branch.

The moment

before it rises,

when it prepares

to lift away from itself

like a dream

leaves a person

in the instant before

falling asleep.

Strange, hypnagogic:

as if in that

broken second

its silver-green wings

are neither

moving nor still.

See how

it splits from

one world

and lifts off the branch

in another,

how the freeze-frame

ruptures the loop.

The Manor

Highly Commended in the SULS Writing Competition 2021

By William Pyke (JD 2)

The shards of sun that could pierce through the clouds illuminated a red plain. The wind was starting to pick up – by nightfall it would be roaring – but otherwise the place was deathly still. A lone wallaby stared at a shape fixed in the middle of the plain. A gargantuan shape, green and black. A house, a manor of some sort that had long since been deserted. It had more than decayed. The house looked as though the next gust of wind would blow it over. The glass windows were shattered or missing entirely. The inside of the front door was burnt black as coal, and some shutters hung by a single nail, creaking as they swayed in the dusk. One might have been mistaken for believing the house to be haunted, but there was no denying that in its heyday it must have been worth millions. Such fine observations were largely undiscernible for the wallaby, who, after a moment of staring at the Manor, resumed her scavenge and trailed lightly away. But the Manor went nowhere.

As the sun disappeared entirely behind the clouds, it began. Dust started falling from the hulking frame. The nap had been long enough, it was time to wake up. Lights sharpened into focus and voices became audible. The decay was long gone, the glory restored. Once darkness fell, it was time to start the party.

‘Otto Mantell!’

The voice came sharply to his ears, and Otto knew at once who it belonged to. He turned and saw Seamus Myers practically sprinting towards him. Any chance Otto had to wonder how he had gotten so distracted was already gone. Myers was now so close that Otto could see the throbbing vein in his freckly forehead. This was a tell-tale sign that Seamus was not happy, but Otto didn’t need any reminding of that.

‘Is there a reason the lamb roast hasn’t been delivered to Doctor Ramsay?’ Seamus asked.

‘N-no, Seamus,’ Otto replied. ‘I must have gotten dis—’

‘Distracted?’ Seamus finished, pulling Otto’s face inches from his own. Otto swore that from this distance, he could almost see the forehead vein throbbing.

‘Yes, sir,’ Otto darted his eyes downward.

‘I might have guessed,’ Seamus threw Otto backwards and, quick as a flash, had a silver platter in his hands.

‘It wouldn’t be the first time, would it?’ He handed the platter to Otto, his movements delicate now. Otto shrugged.

Finnegan was about to continue before being interrupted by the chefs, furious about the cheesecakes. Otto didn’t want to waste his opportunity to get out of the kitchens. With a hop he clambered through the double doors and into the parlour.

The music hit him at once. Live jazz. Somewhere in the dining room. His heart skipped a beat. Otto felt his eyes water involuntarily as they often did now when he heard jazz. He had to see the band. Perhaps just one song…

No time to get distracted, he told himself. Find Doctor Ramsay. Then jazz.

But the search for Doctor Ramsay proved harder than he would ever have guessed. He wasn’t in the mess hall, nor games room, and he wasn’t to be found in the library either. A group of men roared with laughter and boasted of hunts gone by, drunk and smoking. Smoking. Perhaps Ramsay preferred to smoke alone? And where better to do that than outside?

Otto skipped as quickly as he could down the stairs. He had been working here for too long than to wonder what Seamus Myers would do if guests complained about cold food. Truth be told, Otto had hated this job from the moment he had started it. Four long years had passed since Joey had sailed for New York. In his heart, Otto had always known that Joey was too bright a spark for Perth. When a talent agent had offered to sail Joey to the big apple to pursue jazz, it seemed only right that he had taken it. But Otto would not stay at home for long after him. Not with those deadbeat parents. Not with the belt every night. Not while he could start a new life overseas with his brother. And so he had run away and wound up in the service of Myers’ Services. The pay was dismal, the living conditions atrocious. But Otto wasn’t far off from his goal now. One last night, and he was gone. First to Sydney, and then to Joey. To the city that never sleeps to hear the saxophone that played in his dreams.

Besides, Otto thought to himself, I’ve seen some pretty nice houses on the road. He smiled at the thought, striding outside past the carriages. The horses bristled in the night breeze. This place is pretty incredible… He took in the green mansion. The Kettle Estate. As mysterious as it was beautiful. Long had it stood here, a diamond in the rough. He sighed and continued towards a lone figure he had seen, smoking by the end of the carriages.

‘Doctor Ramsay?’ Otto asked.

‘Yes, thank you,’ the man replied, taking the platter.

‘Here,’ he offered Otto some money.

‘Thank you so much, Doctor Ramsay,’ he beamed.

‘Call me Mitchell,’ he replied. Otto had never been asked by a guest to call them by their first name before.

‘Thank you, Mitchell,’ he replied. He turned to go, but something stopped him.

‘Would you not prefer to eat with the others?’

Otto had no idea why he asked the question, and instantly felt like an idiot for asking it. There was a long pause.

‘I used to sail when I was young. My Father and I. The night sky… Helps me think.’

Otto smiled and nodded but wasn’t sure whether the stranger could see him. After a moment he walked back towards the Manor. He wasn’t entirely sure why, but Otto felt the need to turn around and tell Doctor Ramsay about Joey sailing to America.

Otto turned with a smile on his face that soon vanished. The Doctor was gone. The wind had picked up out of nowhere, whistling in the night. Otto felt the hairs on the back of his neck stand up. He started once more back to the house, his head bowed. Behind him, carriages stood with empty horse harnesses. Otto burst back into the house and found the ball room utterly empty.

What on earth? Otto asked himself.

Suddenly it felt as though he was moving through thick mud. He wanted to move faster but an unseen terror was holding him back, preventing him from discovering what scene was afoot here. Somewhere, far away, the jazz band continued to play, the haunting melody echoing throughout the seemingly empty house. It soothed Otto and for a moment he thought he even heard Joey’s saxophone.

Joey. Do it for Joey.

With a newfound courage, Otto determined to march to where this had all started, the kitchens. His footsteps bounding loudly on the polished floor. A sense of foreboding grew stronger with every step that Otto took, but somewhere deep within he knew he had to pass through those double doors and see what lay beyond. He pushed them open with what felt like Herculean strength.

The kitchen was empty. Only one sound could be heard, a whistling kettle. Or was it? Otto crept forward to find the source of this whistling that only grew louder. His stomach dropped to the floor when he realised it wasn’t a kettle at all.

The boiler – dead ahead – was almost shaking itself off its hinges. A dial on it pointed firmly into the red.

‘Don’t ever let it get in the red, or else we’re all dead.’

It was Seamus who said these words on Otto’s orientation, but Otto who spoke them now. With a sad smile, Otto walked to the window and glanced outside. The sun was beginning to rise on a beautiful red plane. A diamond in the rough.

Outside, a Father and Son passed by in a Holden X-Trail, a red trail in their wake. If they had looked at that very moment, they might have seen Otto, smiling sadly back at them. But such fine observations were largely undiscernible for the pair, who, after a fleeting glance at the old burnt down building, drove on.

I tried to write a poem about time moving onwards

2nd place in the SULS Writing Competition 2021

By Ariana Haghighi (LLB 1)

she’s a toothy trap[1], a thug and thief[2]

a flowing river[3], dying reef[4]

a coin[5], some cash[6], some promised note[7]

all that she is, the Writers wrote

hungry fire burns through the night[8]

the tailor sews a dress now tight[9]

some Writers hate, some Writers dote

all that she is, the Writers wrote

why should I begin to try?

when it’s been done by those on high?

her ticking hands and face their muse

there is no art style left to choose

the writer’s job is harder now

through tended garden they must plough

with every moment that i waste

the Poets move, they’re making haste

they’ve built a gallery, her enshrined

I stand in empty space. Behind.

why do no images come to mind?

pen hits the table, thoughts resigned.

---

[1] Margaret Atwood

[2] Joseph White

[3] Bernard Asuncion

[4] Chris Martin

[5] Carol Ann Duffy

[6] James Campbell

[7] Kay Lyons

[8] Delmore Schwartz

[9] Faith Baldwin

Senate Bill 8: Genius, or devious?

How the Texas’s abortion bounty legislation has cornered the Supreme Court into a narrow 5-4 judgement, leaving the world on its edge as to the fate of Roe v Wade.

By Cherie Tse (BA/LLB II)

What is the Bill?

Senate Bill 8, otherwise known as the ‘Texas Heartbeat Act’, went into effect on the 1st of September 2021. This newly passed Texan abortion law offers a bounty of $10,000 USD to anyone suing clinics, doctors, nurses, abortion providers and other residents who knowingly or intends to ‘aid or abet’ the performance or inducement of an abortion.

Fetal heartbeat

The Bill provides that ‘a physician may not knowingly perform or induce an abortion... if the physician detect(s) a fetal heartbeat’, defining a ‘fetal heartbeat’ as a ‘cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestation sac’ as defined in Section 171.201(1) of the Texan Health and Safety Code § 171.201. Despite the fact it takes four weeks for a woman to miss the first day of her regular menstrual period (not to mention some women have cycles that last longer), the law bans abortions as early as six or more weeks into a pregnancy. Indeed, doctors have asserted that at such an early stage, the ‘fetal heartbeat’ detected by ultrasounds which the Bill refers to are merely electronic impulse ‘flutters’ induced by the embryo rather than fetal heartbeats. Moreover, at 6 weeks an embryo is not viable which, per Colautti v Franklin, [1] means it is not reasonably likely the fetus can survive outside the womb with or without artificial support—this typically takes 24 weeks. This is clearly inconsistent with the legal precedent set by Roe v Wade, which stated ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability’.

So how did the state of Texas manage to enact a Bill which clearly violates the rights of women?

Significance

What differentiates Senate Bill 8 from previous abortion-related legislation is that the law provides an incentive to sue other fellow Texans, rather than public officials. Cleverly designed to avoid judicial review or constitutional challenges, the Bill presents itself as a positive authorization of private civil rights of action. This is as the law enables everyday citizens to become unofficial “bounty hunters”, directly encourages private citizens to bring civil actions against each other in return for (1) an injunction relief, (2) statutory damages in an amount of not less than $10,000 for each abortion the defendant performed, induced, aided or abetted and (3) costs and attorney’s fees. While the woman herself cannot be sued, her aiders risk a hefty fine if a civil suit is brought against them. This potentially includes the uber/taxi driver who brought her to the clinic, or someone ‘paying for or reimbursing the cost of an abortion through insurance or otherwise’[2].

With such an enticing reward, why wouldn’t you throw in a tip about your neighbour next door who drove a pregnant woman to Planned Parenthood? Even if the defendant wins the dispute, the plaintiff is not required to cover their legal fees.

Contradiction to past legislation

Opposers have argued that this law directly contravenes the protections granted by Roe v Wade, as well as those specified in Planned Parenthood of Se. Pa v Casey and Jackson Women’s Health Org v. Dobbs. Nevertheless, the Justices have allowed Texas to enforce the law, claiming their rulings were based on procedural issues rather than the issue of whether it was constitutional. The majority affirmed that the order was not to resolve ‘definitively any jurisdictional or substantive claim in the applicant’s lawsuit’, but rather were concluded based on the procedural issue of imposing an injunction. Essentially, the Court did not overturn Roe v Wade but did not confirm whether the precedent would be overturned in the coming years.

What next?

The Supreme Court’s ruling has not gone unnoticed. Both the judgement and Senate Bill 8 have been heavily criticized by feminists, pro-choice activists and twitter fanatics. The Bill has caused pregnant women in Texas to seek abortions from other nearby states. Unsurprisingly, the Bill has also forced abortion clinics across Texas to close. More recently, the Department of Justice under the plaintiff’s name of ‘USA’ has filed a claim for declaratory and injunction relief against the State of Texas for enacting a statute that contravenes the constitution. Whether USA—or any other party asserting Senate Bill 8 is unconstitutional—will succeed ultimately hinges on how the Supreme Court deals with the Bill’s novel strategy of making civilians anti-abortion “bounty hunters”. Will the GOP majority decide along party lines, or will there be surprising swing judgements? Only time will tell.

[1] 439 U.S. 379, 388 (1979),

[2]Texas Senate Bill 8

Him, Her and Them: Including everyone in the conversation

1st place in the SULS Writing Competition 2021

By Dominic O’Sullivan (JD 1)

To me, onward means progress, embracing change and new ideas. But onwards also means reflecting on the past. Over the past few years, we have seen a substantial growth in awareness of non-binary gender-diverse people, and a drive for inclusivity. As a burgeoning law student, I wonder how the legal profession, as an advocate for both reform as well as protecting our values, will navigate a post-pandemic world where our personal and collective identities are rapidly shifting in new directions. 

In February this year, at the start of my Juris Doctor degree, one of the first texts I was made aware of, and undertook to read, was the Australian Guide to Legal Citation (AGLC) (4th Edition). As I was skimming through the pages, one rule stuck out to me. It was Rule 1.9.3, titled Inclusive Language. It is extracted here: 

Gender-inclusive language should generally be used. It is preferable to use ‘they’ (and derivative forms ‘their’ and ‘them’) as neutral singular pronouns. It is also acceptable to use ‘he or she’, ‘she or he’ or any derivative form (e.g., ‘his or hers’ and ‘her or him’).

Authors should avoid terms such as ‘the reasonable man’, ‘spokesman’ and ‘mankind’. Neutral terms such as ‘the reasonable person’, ‘spokesperson’ and ‘humankind’ should be substituted.

It may be appropriate to retain gender-specific language where this accurately conveys the intended meaning in the relevant context (e.g., A plaintiff may be liable in negligence to her own foetus while driving)[1].

I resonated with r 1.9.3 as I came across it at a time where dialogue concerning non-binary gender identities was becoming more frequent. While I recognise many Indigenous and Non-Western societies have long recognised genders outside of the binary[2], Western culture has for many hundreds of years imposed a binary gender division between men and women. This was up until recently, when suddenly, public figures were coming out as non-binary. People began featuring pronouns on their social media profiles. All-gender toilets were becoming more common place. I found myself discussing gender and identity with my close friends. There seemed to be a swift and resilient push for recognition and inclusivity of gender-diverse people. 

R 1.9.3 is an example of this drive for inclusivity. The rule encourages those engaged in legal writing to use language that is inclusive of gender-diverse people. An easy way to do this is, as explained in r 1.9.3, is to use ‘they’ as opposed to ‘he or she’. Another example includes saying ‘Good evening folks’ instead of ‘Good evening ladies and gentlemen’[3].

The 4th edition of the AGLC was published in 2018 and reflects the increased awareness of gender-diverse people at the time. The first paragraph was a subtle re-writing of its predecessor, Rule 1.11 in the 3rd Edition of the AGLC, which was published in 2010. The original paragraph in r 1.11 is extracted below:

Gender-inclusive language should be used. The words ‘he’, ‘his’ and ‘him’ should not be employed as the supposedly neutral third-person singular. It is acceptable to use ‘he or she’, ‘she or he’ or any derivative from (‘his’ ‘her’ and ‘him’). It is also acceptable to use ‘they’ (and derivatives ‘their and them’) as neutral singular pronouns[4].

You can see that the editors rewrote the rule to emphasise that using they/them/theirs is not only an appropriate alternative to saying ‘he or she’ as a neutral third-person singular pronoun, but is actually the preferred option.

The editors also removed the statement about using male pronouns as a neutral singular pronoun. I suspect this is because it is so obvious that it need not be said. We are all familiar with this custom in older texts, including many older cases we must read in Law school. Undoubtedly, such practices exclude women and non-male identities and re-enforce patriarchal notions.

To me, r 1.9.3 demonstrates that the AGLC editors recognise that not only is it vital to ensure

women aren’t excluded by the language we use in law, but also that non-binary gender-diverse people are not either.

The pandemic has continued, if not accelerated, our growing awareness and acceptance of non-binary gender identities[5]. It has forced many of us into situations we didn’t necessarily plan to be in and to spend more time alone and inside our dwellings than we have ever previously. A positive side effect of this is that we are then allowed the space and time for introspective and self-reflective dialogue. These meditative conversations can be a helpful antidote to the anxiety created by the pandemic. We can harness the fear and uncertainties in the world aggravated by the pandemic to confront the complexity of our own person and challenge our ingrained and unyielding perceptions of self.  

I have always identified as a cisgender man, and up until the pandemic, I had never questioned my gender identity. It wasn’t easy for me to come to terms with the reality that, for much of my life, I have often felt uncomfortable with my gender identity. As a result, I have experienced years of shame and self-hatred because of my inability, despite my earnest desires, to comply with the social expectations placed on to me dictating how I should behave, who I should be, what should bring me joy. Recognising this was, and is still, incredibly healing.

There are countless ways society continues to exclude gender-diverse people and impose binary gender norms. Look at gender reveal parties for example[6]. Categories in major film and music award ceremonies are still binary[7], as are sporting competitions such as the Olympics[8]. The other day I found gift cards at a store, one marketed ‘For Her’ which was redeemable at make-up, shoes, and clothing stores, and one ‘For Him’ which was for use at hardware, sports, and electrical stores.

Because of the way binary gender stereotypes are imposed by society, it can lead to bizarre rejections of behaviour that falls outside of them. For example, one time, when I was about 12, I was mocked for putting on lipstick, when in fact I was simply putting on lip balm for my chapped lips (in fairness, it was pink and strawberry scented). More recently, a child asked me why I had piercings in my ears, because ‘Boys don’t have ear rings!’.

As a cisgender person, I find our societies constant imposing of binary gender norms exhausting. I can only imagine how non-binary gender-diverse people find it.

This is not to say that we should throw out the window everything we know about gender and identity necessarily. It is almost important to reflect on the values and beliefs of the past. However, as we become more accepting of the diverse arrays of gender identities, we must be open to collective and personal changes to be more inclusive.

As current and future legal professionals, it is important we ensure we are at the forefront of this movement by challenging ingrained customs and beliefs within legal and educational institutions that not only exclude gender-diverse people but constrain all of us. Being more conscious with the language we use, in our writing and how we speak to others, is a simple and effective way to be inclusive of people of all identities, including non-binary, trans and other gender-diverse people, including people still grasping and understanding their identity. This is particularly so considering misgendering has a real and significant impact on non-binary and trans people’s health and wellbeing[9].

Inclusive language is important across all fields, but I would argue it is of even greater importance in the legal profession. We learn early on in law school about the Rule of Law, an important part of which is ensuring the law is accessible to all and it is applied consistently among different groups of people[10]. How then, can this be achieved if the language used by lawyers, legislatures, judges, and the like, deliberately excludes groups of people? This is why r 1.9.3 is so important.

Much like society’s inclusion and acceptance of gender-diverse people, there is much progress to be made in coming to terms with my own identity. But where once I was terrified of embracing my true self and of not conforming to binary gender expectations, I am now excited by the multiple facets of my personality, and I welcome the ambiguities and uncertainties of my person. What is certain, and which I find comfort in, is that as we collectively move onwards, we can and will become more open to the diverse identities of human beings. 

---

[1] Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc, Australian Guide to Legal Citation, (Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc., 4th ed 2018), 28.

[2] Meghan Werft and Erica Sanchez, ‘Male, Female, And Muxes: Places Where A Third Gender Is Accepted’, Global Citizen (Article, 28 June 2016) <https://www.globalcitizen.org/en/content/third-gender-gay-rights-equality/#:~:text=For%20many%20cultures%2C%20however%2C%20the,%E2%80%9Cthird%20gender%E2%80%9D%20for%20centuries>.

[3] Victorian Government, ‘LGBTIQ+ Inclusive Language Guide’, Vic.Gov.Au (Web Page, 3 August 2021) <https://www.vic.gov.au/inclusive-language-guide>.

[4] Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc, Australian Guide to Legal Citation, (Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc., 3rd ed, 2010), 25.

[5] Nick Levine, ‘Lockdown Helped Me Recognise My Gender Identity’, VICE (Article, 14th September 2020) < https://www.vice.com/en/article/5dz8zb/lockdown-helped-me-recognise-my-gender-identity>.

[6] Rebecca Schiller, ‘Why the mother who started gender-reveal parties rejects them’, The Guardian (online, 20th October 2019), < https://www.theguardian.com/lifeandstyle/2019/oct/20/why-the-mother-who-started-gender-reveal-parties-regrets-them>.

[7] Stephen Daw, ‘Is it time to retire gendered categories from music awards?’, Billboard (Web article, 25th March 2021), < https://www.billboard.com/articles/news/pride/9545464/awards-shows-gendered-categories>.

[8] Joan Niesen, ‘Quinn: the Olympics first out trans medalist aims for Gold with Canada’, The Guardian (online, 4th August 2021), < https://www.theguardian.com/sport/2021/aug/04/quinn-the-olympics-first-out-trans-medalist-aims-for-gold-with-canada>.

[9] Sabra L. Katz-Wise, ‘Misgendering: What it is and why it matters’, Havard Health Publishing (Blog post, 23rd July 2021), < https://www.health.harvard.edu/blog/misgendering-what-it-is-and-why-it-matters-202107232553>.

[10] Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’, in Jowell and Oliver, The Changing Constitution (Oxford University Press, 6th ed, 2007), 11 - 12.

Take Home Exams: The Official Word

Written by: Kiran Gupta (LLB III)

Excerpts of this interview were originally published in Honi Soit. This transcript has been lightly edited by the interviewer for clarity and brevity.

The interview was transcribed by Katie Richards (JD 1).

Kiran: What are the pedagogical benefits and disadvantages of take-home exams, both in terms of the short-release take-home exam and the long-release take-home exam?

Nicole Graham: In the eyes of some of my colleagues, short-release exams reduce the possibility of cheating. But in the eyes of different colleagues, cheating happens all the time anyway, and there's nothing you can do to stop it, so it doesn't matter if it's two hours or two months. Students who are going to cheat will cheat. So, they don't see that the short release take-home exam has any difference to the long release assignment.

I think that all of this is brought about by a pandemic where we can't have sit down invigilated exams. Before the pandemic, we would have long or short release assignments, or we would have invigilated exams. From my point of view, an assignment is not equivalent to a supervised assessment.

The benefit of a normal two to three-hour exam that’s supervised is that you reduce the amount of cheating. Those benefits are lost when it's unsupervised. I don't really see the benefits of a two-to-three-hour exam, I think if it's unsupervised – why does it need to be two or three hours?

Really long take-home exams (24-48 hours) take some time and pressure off students compared to a normal two to three-hour exam but the disadvantage is that some students believe mistakenly that if you give them 24 hours to do an exam, it takes 24 hours to do it. I worry about the pressures that students put on themselves to basically work for 18-24 hours. I think that's a very high amount of stress to put on people when they're in a pandemic.

So I'm not sure that the benefits of the 24-48 hour exam outweigh the risks. The risks are even bigger with a 48 hour exam; students working on one thing for two days really intensively.

That’s why the University introduced what they call ‘Expected Student Effort’ in relation to this so that we could prevent students working too intensively. And hopefully most students understand that a 24-hour exam is approximately about four hours of writing and editing and maybe another two to four hours of research or thinking or preparing and whatever. So, it shouldn't really be more than a normal workday. I hope that our message reaches students.

I am concerned that there might also be questions of equity, because some students have the control over their own time so they can control a whole 24-hour period. But some of our other students have children or parents or siblings/a partner for whom they are a carer. And they could never spend 18 hours on a task so that’s another concern that I have.

Kiran: Can I then take it from your response that, if in a hypothetical world where there was no pandemic that supervised face to face exams, in your opinion, are more beneficial than take home exams for the most part?

Nicole Graham: Well. I don't know about that. I think that if we remove cheating from the perspective, I think being asked to provide all of your knowledge of a subject in two or three hours is a pretty big ask, whether that's take home or supervised. The expectation is that students are going to come up with 60 or 70 or 80 or 90 or 100 percent of the knowledge of a whole subject in two or three hours. I think that's a very big ask.

Kiran: Is there anything you'd like to add to your discussion of the advantages and disadvantages of either take home or face to face exams?

Nicole Graham: The Law School provides programs that are accredited by the Legal Profession Admission Board, the LPAB, and obviously whilst the University is entirely responsible for its own curriculum and assessment, the LPAB does require graduates to have studied certain topics. But now that the pandemic has arrived, it's also an open question now about whether the legal profession also requires face to face learning and supervised assessment.

So, for example, there are a number of international students at Sydney Law School. And those students may not plan to use their law degree from Sydney Law School in Australia. They might plan to use it overseas. And there are a large number of bar associations and accrediting bodies all around the world that will not recognise a law degree where there’s been a certain percentage of unsupervised assessment or online learning.

So that means that if we have an 100% unsupervised assessment regime, then international students would not come to Sydney Law School because then they can’t practice in their home jurisdiction.

So there is interest from the New South Wales accrediting bodies and the New South Wales Bar Association in this question of supervised assessment. It seems from an accreditation point of view, that they prefer supervised assessment as a form of quality assurance.

Kiran:  Would you say there's any advantages to the take home exam in terms of perhaps more breadth of knowledge?

Nicole Graham: I think if you're a fan of exams, you're going to love exams because you think that the learning outcomes that you're getting out of the exam is sufficient. It's like a race. If that's what you're looking for (e.g. if you're a coordinator and your learning outcome is applied knowledge) then you might think an exam is perfect. Whether that's take-home or supervised, doesn't matter. You're giving such a tiny amount of time to apply that there's no way you could succeed if you weren't 100 percent on top of the knowledge. But if you aren’t then you’ll prefer the take-home.

Kiran: What is the Law School’s plan for next year would be if the borders don't reopen?

Nicole Graham: If the borders don't reopen, there would not be much prospect of ‘return to campus’ exams. However, we are under some pressure for our international students in particular to provide supervised assessment. So, if we're going to continue with take-home exams in 2022, then that will need to be balanced by new forms of supervised assessment.

At the moment, we are researching different kinds of ways that we can supervise what our students are doing and mark them. That might be debates or moots or presentations or class participation and things where we can see that the student with that name is doing those skills.

But we don't know. Like all of our colleagues in Australia and around the world, we’re just trying to be really agile, ready to move and ready to pivot at any moment in the same way as this semester where we were supposed to return to campus and now, we're all online.

The other thing to bear in mind is that the Law School cannot determine the style of exam. The decision about that is actually taken by the University Executive, not by faculties and schools. So even if the School said, ‘Oh, we want to stay with take-home exams forever’ – If the University decided to return to on-campus exams, then we would need to think about whether we want to continue with exams and have on campus exams? Or would we have different kinds of alternative, long-release tasks that might test collaborative/oral skills and things like that?

Kiran: In your experience and maybe from discussion with colleagues, do you think that the preparation, marking and writing of take-home exams has been more onerous for staff?

Nicole Graham: When the pandemic started, no one knew how long it was going to last. I think by that stage the exams had already been written and they were going to be sit down exams and then all that changed was that we asked students to submit them online. But as things progressed, we had a really big surge in cheating and a massive surge in special consideration applications and things like that.

As a result, I think coordinators have started to spend more time writing questions more carefully because they thought, ‘well, if there's lots of cheating, then I need to write a question that allows me to see who are the honest students that really understand it and let them perform well’. Therefore, if you needed to cheat, you would be disadvantaged.

I think it's about the same time to write two or three hour exams (whether sit-down or take-home) as you're assessing the same learning outcomes. The learning outcomes of subjects haven't changed through the pandemic.

But I think the marking is different. Online marking is far more time intensive. From the University's point of view, it's less risky and less complicated. But from the marker’s point of view, it compels you to sit at a computer for hours, because the nature of marking is time sensitive. So if you receive 250 exam scripts and you've got nine days to mark them, you're not having a day off and you're probably going to be doing it between 12-16 hours a day.

Now, if you can move around the house with pen and paper and mark those exams, that means that you’ve got some flexibility, in terms of your body and your physiology. But when it's in front of a screen, you do get a lot of repetitive injury. And so I guess that's hard. A lot of us are marking at home and lounges are not set up for work. So, I think that there are some risks to staff with online marking, especially with a high volume in a short period of time. So, it's not necessarily as though they're taking more time to write the exams, but they certainly are taking more time and absorbing more physical risk when marking online exams.

Everything also goes through Turnitin. We separately see the Turnitin report. So, if you have 300 students, you now have 600 papers to look at – 300 submissions and 300 Turnitin reports. It's doubling what you're looking at.

Kiran: You said there was a massive rise in cheating – how does the Law School detect contract cheating and are those processes effective?

Nicole Graham: The University is now spending more time and energy than ever before on new and improved ways to detect all kinds of misconduct. So not just contract cheating, but also collusion and plagiarism. That’s time and money that could be spent on learning. So that's really unfortunate. I think that's one of the downsides of the online assessment world; that resources that can be spent on teaching are now being spent on stopping cheating or picking up cheating. Our sector is under siege so it's not like there's lots of cash to throw around. But markers are getting more experienced now. At the start, some markers had experience with Turnitin and now all markers have lots of experience with Turnitin.

We're having more staff training around how to find, detect and report academic misconduct. The reporting systems are changing. We are, of course, challenged resource-wise. We used to have maybe two or three people in the School who would look over any allegations of cheating on a paper and now our team has more than doubled in size. And that team is made up of academics who already have a normal job to do, and they don't get extra pay to do that. So, it is an unfortunate additional workload. The whole online assessment world brought that to us.

But having said that, there are colleagues who think that online marking is really great because they can do it anywhere. Before, we tended not to take marking home as it was a risk to the exam scripts. So there's pluses and minuses with everything.

I guess the other factor is that we also need to allow for transition time and adaptation time. So, at the moment, things are new and are different. And so we can expect people to not really know and understand how to use these new processes. We’re seeing students writing in upload time because they don't get that it’s like the old days where we had pens down and you stop writing. So students are learning and adapting to go, ‘I have to stop writing now because it's upload time’. And so all those students who used to go, ‘Oh my god, I didn't get to hand in my assignment because I didn't get to upload my exam as the exam site has closed,’ that's decreasing now. So students are learning.

Similarly, markers are learning how to use SpeedGrader. I remember the first time I used SpeedGrader, it took me three times longer to mark one paper than it did before. So I worked 32 consecutive days without a day off, whereas I would normally maybe do that in 21 days. So it was really, really hard and that made it really stressful. But academics are learning. I'm better at using SpeedGrader now than I was.

I'm a teacher and I fundamentally believe that humans are great at learning and we're great at adapting. Students are improving their online exam behaviour and academics are improving their online marking. Also, University systems in relation to special consideration and replacement exams are improving as well. In a lockdown and a pandemic, it's hard and it'd be great if we didn't have to do it. But there’s silver linings, we are learning a lot. And we'll see where it goes.

Kiran: Is there anything else you'd like to add?

Nicole Graham: I just want to thank you for raising it, it's a really important issue and I know lots of students worry about and think about this a lot.

I just want to say to students that most academics have a really close understanding of student experience and we feel for students learning in a pandemic.

It's very suboptimal and we try really hard to give students our best and we wish them the best. We do appreciate how hard it is, and we wish it was different, but we'll do the best that we can to support them and good luck to them.

The Rocky Saga of Auer: The Rise and Fall of the Deference Doctrines

Written by Jerry To (LLB II)
Artwork by Justin Lai (LLB III)

When Justice Stevens, writing for the majority in Chevron U. S. A Inc. v Natural Resources Defence Council, 467 U.S. 837 (1984), laid down the principles of what later became known as Chevron deference, he likely did not consider that the Court was doing anything remarkable. However, contrary to that assumption, the Chevron decision has since become a bedrock of American jurisprudence. In addition, there exists another less well-known, yet equally significant doctrine, that compels courts to give the federal agency the highest deference when interpreting its own regulations—this is the Auer deference. Together, the Chevron and Auer decisions have formed the bedrock of American administrative law: where possible, courts should defer to agency interpretations of the law, unless such an interpretation is patently wrong. 

In recent times, the universal acceptance of these deferential doctrines, particularly Auer, have gradually became a controversial topic of scholarly debate, with opponents voicing their disapproval on both grounds that it violates the separation of powers and represents an inappropriate reluctance of the judiciary’s constitutional role. The renewed interest in Auer, especially amongst the conservative Justices, recently culminated in the decision of Kisor v. Wilkie, 588 U.S. (2019) (“Kisor”), where a 5:4 majority reaffirmed Auer but severely restricted its scope to the point of, in the words of Justice Gorsuch, “[being] maimed and zombified”. Although Auer has managed to survive for the time being, the recent confirmation of Justice Amy Coney Barrett may well have sounded the alarm signalling the end of Auer deference.

Auer Deference: A Brief History

The origins of Auer deference came from the unanimous decision of Auer v Robbins, 519 U.S. 452 (1997), where the Supreme Court held that courts will defer to an agency’s interpretation of its own regulations unless such an interpretation is “plainly erroneous or inconsistent with the regulation”—this doctrine traces back to the earlier Supreme Court case of Bowles v. Seminole Rock & Sand Co., 325 U.S. 452 (1945). Fundamentally, Auer was merely an application of Chevron in the context of agency regulations rather than federal statutes. This much was conceded by Scalia himself in his dissent for the much later case of Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013) (‘Decker’). However, because Auer deference applies only to an agency’s interpretation of their own regulations, the need for consideration of the first limb of the test in Chevron—namely if Congress has expressed intent in the statute—is obviated since there is no congressional involvement in agencies crafting their own statues. Hence, instead of the two-step test in Chevron, Auerdeference is even more straightforward in that the only condition for deference is that the interpretation by the agency be “permissible”, even if the Court disagrees with it. 

The shift away from agency deference: Scalia’s U-turn

Perhaps the most remarkable evolution on the issue of deference in administrative law was that of Justice Scalia. As well as being the author of the Auer decision himself, Scalia was also initially a very strong advocate of Chevron deference. In a 1990 article for the Duke Law Review, he supported the general principle of judicial deference to administrative interpretations of legal rules on the basis that it was a bright-line rule which left little to no room for varying interpretation. Scalia also supported their rigorous, rule-like methodologies (referring to Chevron’s two-step test and Auer’s one-step test), which he vastly preferred over the multifactorial, activism-prone approach favoured by his colleagues on the Supreme Court. Additionally, he valued the importance of other auxiliary benefits that judicial deference would bring to the system, especially on both grounds that it would make the process of judicial review much easier, and that the higher degree of expertise that agencies possess would render them more appropriate actors to expound on these matters. 

However, Scalia gradually became more sceptical of the whole idea of agency deference altogether, particularly Auer. He famously remarked to his friend and colleague, Justice Thomas, that Auer was “one of the worst opinions in the history of this country”. In Decker, Justice Scalia, with characteristic pugnacity, famously decried “Enough is enough” and called for a total repudiation of Auer. He criticized Auer for violating the fundamental principle of the separation of powers because it places the power to create, enforce, and interpret the law into one single entity. Scalia argued that due to Auer, “…the power to prescribe is augmented by the power to interpret”. Consequentially, agencies have a perverse incentive to enact vague rules so as to allow potential retroactive interpretations that are advantageous to them in future proceedings, since courts would have to yield to the agency’s interpretation. These objections aren’t novel; they were first advanced by Professor John Manning (now Dean) of Harvard Law School in his seminal 1996 article, but it was not until Scalia’s dissent that this matter received significant attention which continued to gain traction beyond his tenure on the Court. Indeed, Justice Neil Gorsuch—Scalia’s replacement—is another stalwart opponent of Auer deference, and other conservative Justices on the Court have been increasingly vocal in their opposition to the doctrine.

The decision in Kisor

The most recent development in the Auer saga was the 2019 case of Kisor v. Wilkie, 588 U.S. (2019), where a slim 5:4 majority decided not to overrule Auer. The majority opinion, authored by Justice Kagan, sought to justify Auer deference by imputing a presumption that Congress intends to give agencies wide latitude to “resolve regulatory ambiguities”. The majority further held that because of the principle of stare decisis and the fact that there is some 75-odd years of Supreme Court precedent tied up in Auer, there would need to be some “special justification” to reverse it—this was found not be present. Indeed, Chief Justice Roberts, the crucial fifth vote in the majority, did so purely based on these grounds. He did not join the other four Justices in their exposition of the legal justification on Auer itself or on their newly established framework, both of which severely weakened the precedential value of the main aspects of the majority opinion because it only commanded a plurality of the Court. Nonetheless, regardless of the ultimate judgement, the majority greatly reduced its scope through fashioning a new framework which stipulated a multitude of restrictions to its application. 

Conversely, the dissenting Justices completely disagreed with the framework fashioned by the majority in Kisor. Instead, they advocated for an outright overrule of the doctrine for reasons similar to those by Justice Scalia—as aforementioned. The senior dissent, written by Justice Gorsuch, did advance, inter alia, two further significant objections to Auerdeference, both on constitutional grounds. The first is that Auer deference imposes a bias towards litigants in cases against the government that constitutes a violation of due process as prescribed by the Fifth Amendment of the US Constitution. The second is that the continued abdication of judicial power by courts in applying Auer deference constitutes a violation of Article III of the Constitution, which provides that the “judicial power of the United States is vested exclusively in this Court and the lower federal courts” (emphasis added). By refraining from exercising independent judgment, the Courts are no longer, in the famous words of Chief Justice John Marshall in Marbury v Madison, 5 U.S. 137 (1803), “say[ing] what the law is”, but rather letting the political branches do so.

What’s Next?

In his dissent, Justice Gorsuch remarked that Kisor was more a “stay of execution rather than a pardon” and warned that it would not be “this Court’s last word on Auer”. Justice Gorsuch, along with Justice Thomas—another anchor of the Court’s conservative wing—have recently dissented from the Court’s reluctance to reconsider the doctrine via its refusal to grant certiorari in the case of Garco Construction, Inc. v. Speer, the most recent challenge to Auer thus far. However, despite this temporary sense of certainty, the Auer saga is likely far from finished. With the recent confirmation of Justice Amy Coney Barrett to the Supreme Court, another stalwart conservative weary of executive encroachments on the American system in the mould of her mentor Justice Scalia himself, Auer’s demise now seems inevitable. If this occurs, it will mark the culmination of more than 30 years’ worth of debate on this issue and will usher in a revolutionary new era of American administrative law. 

The Chevron Decision: The Unknown Enemy of the American Right

By Axel Melkonian, LLB III
Artwork by Arasa Hardie, LLB II 

Ex-president Donald Trump’s recent nomination of US Court of Appeals judge Amy Coney Barrett to the Supreme Court following the death of Justice Ginsburg sparked global concern of a reversal of progressive decisions in many landmark US cases. In particular, the media has homed in on cases which deal with current social-political issues—such as Roe v Wade, 410 U.S. 113 (1973)—as decisions that might be reconsidered. Yet, while these cases are undoubtedly important, there are many significant decisions which, though targeted by conservatives since they were decided, remain overlooked by the international community. Most notably is Chevron U. S. A Inc. v Natural Resources Defence Council, 467 U.S. 837 (1984), a case long criticised by the American right, and which will be the focus of this article. Chevron is significant in that it led to “Chevron Deference”, a doctrine where provided specific circumstances are met, the judiciary will respect a federal agency’s interpretation of statutes that they administer. This doctrine has enabled many federal agencies such as the Environmental Protection Agency to dictate the scope of their regulations, and in doing so to curb the economic interests of many private enterprises and businesses. 

This article will not discuss the advantages or disadvantages of Chevron’s reversal. Instead, it will provide an overview on how Chevron Deference works, before briefly detailing situations in which it has been used to greatly expand the powers of federal agencies. In doing so, this article will demonstrate how reversing this doctrine has become the focus of supporters of a neo-liberal free market. 

How does the Chevron Deference function?

In order to understand how Chevron Deference is applied by courts, it is useful to first consider the rationale behind the doctrine’s formation. In Chevron, the Court cited three reasons for deferring authority to federal agencies where statutory interpretation is required. First, the Court assumed that where Congress had left ambiguity, this was an express delegation of authority to the agency to elucidate that provision. Second, the Court supported the notion that federal agencies held greater institutional competence over courts to resolve questions concerning their policies. Finally, the Court also expressed concerns regarding the constitutional separation of powers; the apolitical judiciary should not be involved in reconciling competing political interests. 

Based on the above reasoning, the Court then formed a two-step process to deal with questions concerning whether an agency’s interpretation of a statute should be respected. First, the court will ascertain if Congress has already addressed the question at issue. That is, whether the statute is ambiguous as demonstrated by traditional tools of statutory construction. This generally involves courts determining the natural and ordinary meaning of disputed words, resorting to resources such as dictionaries and considering the specific provision as a whole. Only where there is still ambiguity following this process will courts then proceed to step two of the Chevron framework. This requires consideration of whether the agency’s construction of the provision is a reasonable interpretation that furthers the goals of the statute. Precisely what constitutes a “reasonable interpretation” is difficult to define, with courts employing methods such as examining the agency’s reasoning, or even considering whether the construction serves the public interest. 

While fairly straightforward, this framework possesses multiple limitations that have gradually been introduced by the courts. For example, not only does the doctrine only apply to an agency’s interpretations of statutes they themselves administer, but Congress must have delegated authority to the agency that the agency’s interpretation carries legal force. This largely hinges on the administrative procedures used by the agency when interpreting that statute. For example, in Christensen v Harris County, 529 U.S. 576 (2000), the court dismissed the agency’s interpretation as having been issued in informal agency opinion letters—the interpretation had to be reached through formal procedures such as proper adjudications and notice-and-comment rulemaking to be binding. Courts have also been reluctant to apply Chevron where it concerns a question of major economic and political significance, reasoning in such circumstances Congress would have delegated a clear textual commitment of authority to the agency. In FDA v Brown & Williamson Tobacco Corp, 529 U.S. 120 (2000), the court did not grant deference to the Food and Drug Administration (FDA) regarding their interpretation of tobacco regulating provisions. Rather, the court pointed to the depth of “tobacco-specific legislation” enacted by Congress, which overall suggested the FDA lacked authority to regulate tobacco. Another notable exception are statutes which courts in previous decisions have concluded bore no ambiguity, and hence left no room for agency discretion. 

Notable usage of Chevron

As the most cited case in US administrative law, Chevron Deference has contributed significantly to the current regulative powers agencies have over private corporations and enterprises. One notable case is City of Arlington v FCC, 569 U.S. 290 (2013), where the Supreme Court found an agency was entitled to use the doctrine to interpret statutes concerning the scope of their jurisdiction. The issue in contention was whether the Federal Communications Commission (FCC) was entitled to interpret a provision in the Telecommunications Act concerning what constituted a “reasonable period of time” for state and local governments to act on an application for siting a wireless telecommunications facility. The FCC made a ruling specifying the number of days it considered reasonable, which was then challenged by the City of Arlington on the ground that, since it concerned the scope of the FCC’s jurisdiction, the agency did not have delegated authority by Congress for its interpretation to be binding. The Court ultimately failed to find an agency’s jurisdictional authority could be distinguished from its non-jurisdictional power. They reasoned that every new usage of an agency’s statutory authority could be reframed as an extension of the agency’s scope of jurisdiction. Ultimately, the key question in determining if an agency’s interpretation is to be respected hinges on whether the agency stayed within the bounds of its statutory authority. 

Another significant application was in FCC v Fox Television Stations, Inc., 556 U.S. 502 (2009), where the Supreme Court applied the doctrine in granting deference to the FCC’s interpretation of what constituted “indecent language” per 18 U. S. C. §1464. This interpretation was made in the 2004 Golden Globes Order, wherein the FCC declared for the first time that an expletive could be actionably indecent, regardless if used only once. As FCC saw this act as merely clarifying its stance, it then proceeded to prosecute Fox Television for previous isolated utterances of indecent language that dated to the 2002 and 2003 Billboard Music Awards. While Fox argued the FCC had acted arbitrarily and capriciously in suddenly changing course in how it interpreted the statute, this was dismissed by the Supreme Court. Instead, the majority found that provided the FCC’s—and any other agency’s—new interpretation was reasonable, it was entitled to shift its construction of statutory ambiguities accordingly to reflect altered circumstances or a change in policy preferences. This is significant, as it has enabled agencies to effectively expand the scope of their regulations without being limited by their previous statutory interpretations. 

Conclusion

With a current 6-3 conservative leaning majority on the Supreme Court, the future of the Chevron Deference is uncertain. Indeed, Justices Thomas, Gorsuch and Kavanaugh have all expressed distaste for the doctrine on grounds that it amounts to an abdication of judicial duty to interpret the law, as well as being unfair due to regulated parties not receiving adequate notice of what the law requires under the Chevron framework. There are also concerns the doctrine is unconstitutional, violating Article I by permitting the executive branch to exercise legislative power. While Chief Justice Roberts has expressed reluctance to hear appeals surrounding this doctrine, the sheer push by conservative factions to have Chevron redecided makes it unclear if it will remain firmly established in US administrative law.

Life in 2020: The Student Body Remembers

By Ashmita Senthilatiban, with assistance from Josephine Hoe

Moving to a new state alone to start the JD this year came with fears and many expectations. I had a mental checklist of things I strived to do, including trying to get out of my comfort zone and get involved at USYD. I figured this would allow me to meet new people and start fresh. However, life is unpredictable and before I knew it I was on a flight back home merely 2 months later. Reflecting back, I have now come to accept the situation but at the time, I was distraught, my mind was constantly racing and I couldn’t sleep for months. Despite being grateful to be back with my family and friends, I had lost any motivation to finish the semester. I was disappointed that I wouldn’t have the experience that I envisioned this year, and so any effort to reach that goal now seemed pointless.  Upon interviewing other first years in the student body, I realised that this disappointment was also reflected in their experiences. Nevertheless, we tried to make the best of our circumstances, enthusiastically joining online sessions and making an extra effort to stay connected with the faculty. 

The use of zoom to deliver tutorials took some getting used to and presented many obstacles. Besides connectivity issues caused by oversaturation of users on zoom, I personally found online tutorials intimidating. Being a rather timid person myself, I struggled with participating in class. Based on the declining participation levels through the semester it was evident that I wasn’t alone in how I felt. However, my experience greatly improved in semester 2. Since there were no disruptions through this semester and both students and lecturers had grown accustomed to online learning, it was as close to a normal semester as possible. Students interviewed had also reflected that they were more confident with class-participation when many of their classmates had been reduced to tiny boxes in the Zoom gallery.  I’m grateful to have had lecturers and tutors that were understanding and accommodating to the effects that this global pandemic and the transition to a fully online system of learning has had on us students. However, the response from the student body has acknowledged a preference for brick-and-mortar classes, as the online format had created a less professional environment, with many students confessing that they were watching lectures while lying in bed. 

Being back home in Perth, I now run 3 hours behind Sydney. Initially, this was a challenge as I had scheduled most of my classes at 9am, meaning my days now started at 6am. Not being a morning person myself, I found it difficult to stay awake during my morning classes. However, there was a silver lining to this in that finishing my classes earlier in the day left me more time to spend on revision or preparation for my tutorials. By reorganizing my daily routine, I was able to make this lifestyle work for me. 

I couldn’t help but initially feel disconnected from my cohort and the law school community in general. Unlike face to face tutorials, online tutorials didn’t provide an avenue to get to know your peers since tutors barely had enough time to deliver the weekly content. While sceptical of online events myself, SULS events surprised me just by how interactive they were. I was glad to have the opportunity to hear from often esteemed and diverse panels from all around Australia, especially after appreciating how complicated these events often are to plan from experience. Attending these events allowed me to still experience being part of the law school and SULS even though I wasn’t physically on campus. Upon speaking to several students on their personal connections to the Sydney Law community, many of them have acknowledged that they have felt significantly less connected. While some highlighted that the online social events were wonderful alternatives for networking and corresponding with school authorities, others indicated that they miss engaging with other students in tutorials to check in on their own learnings. Connection with the community is easily taken for granted, especially if it comes naturally. With the pandemic, it took additional effort to reach out to schoolmates, and to attend online socialising sessions despite the unfamiliarity. 

The biggest concern that was raised by the student community was the online examination format. A plethora of online horror stories were recalled by students struggling with the shift from a physical to online examination format. One student recalled handing in an examination paper for the wrong subject, and another lamented the inability to takedown physical notes in the margins of a hardcopy, and had once accidentally deleted her paper halfway through a 24-hour paper. The increased academic demands of a take-home or open-book exam, a word count limit, and experiences with technological errors and glitches have left many students frustrated. On the other end of the spectrum, there were students that enjoyed the online examination format. They cited reasons such as greater accessibility to notes, avoidance of that all too familiar hand cramp, and less memorisation that helped reserve energy for more in-depth research. 

The SULS Women’s committee has had its own share of technological inconveniences regarding the recent Women’s Mentoring Program (WMP) Launch. The WMP Launches in the past few years made use of the physical campus where mingling and networking would have naturally occurred. As a result of moving the entire program online this year, our unfamiliarity with Zoom led us to create over 50 zoom links that were later deemed unnecessary due to the break-out room feature. One of us quipped that under ordinary circumstances, we would not have to go through such administrative hassle, as a single email on the location of the launch would have sufficed. While the work-from-home culture has been generally praised for its flexibility in working schedules and accessibility to almost all, we should be careful to rush into this new world of online work and learning, lest we forget the joys that came from physical community and brick-and-mortar learning. 

This article was co-written through the perspective of Ashmita Senthilatiban, with Josephine Hoe reviewing the feedback from the student body. Our saving grace this year was the opportunity to serve the student body through the SULS Women’s Committee. Despite not being able to meet any of these amazing ladies so far, being a part of the committee helped us feel connected with SULS and our peers. From having to transition our biggest events online, figuring out the intricacies of Zoom, the never-ending Google documents, excel spreadsheets and brainstorming of future events, distance was never a barrier. Our weekly meetings provided a sense of normalcy this year and reduced the overwhelming sense of isolation we both felt by being geographically distant. We will always be thankful to our incredible committee; Sinem, Michelle, Madi, Melina and Amber for their constant support and making 2020 so memorable.

Footnotes - Imprisoned at 10? The Age of Criminal Responsibility in Australia

Footnotes is a podcast by SULS hosted by students, for students, presenting new and intriguing stories about the law and supported by Gilbert + Tobin. Here are the highlights from their most recent episode where we discuss the recent “Raise the Age” campaign.

The recent Raise the Age campaign, spearheaded by legal experts, doctors and justice groups, aims to raise the age of criminal responsibility from 10 to 14 to bring Australia in line with many of the jurisdictions around the world and to stop kids from being locked up. In this episode of Footnotes, we delve into Australia's current policy regarding the age of criminal responsibility, have a look at the backgrounds of the kids who are ending up in prison because of it, and also discuss potential alternatives to the current practice of youth incarceration. 

‘The age of criminal responsibility’ -  what does that actually refer to?

The minimum age of criminal responsibility is a threshold below which you cannot, by definition, commit a crime. In New South Wales, there is a conclusive presumption that a child under the age of 10 cannot be guilty of any criminal offence. 

Who is in the youth justice system?

In 2018, data from the Australian Institute of Health and Welfare found that on an average day in Australia, 910 youth were in detention. However, another AIHW report this year found that 63% of young people in detention, on an average day, were unsentenced; this portion of youth have not been found guilty yet, and may be on remand or awaiting a charge. 

What are their backgrounds?

Common causes include being in the child protection system, family dysfunction, poverty, and drug and alcohol abuse by parents, or the children themselves. We also, unfortunately, see Aboriginal and Torres Strait Islanders people majorly over-represented in the youth, as well as the general population. 

Banksia Hill Detention Centre in WA found that nine out of 10 incarcerated youth had some form of neuro disability. Additionally, 36% of these people between the ages of 10 and 17 have FASD (fetal alcohol syndrome disorder), an umbrella term for a variety of disorders that children can be given because of their mother's alcohol use during pregnancy. 

Associate Professor Garner Clancy shared his thoughts on the current age of criminal responsibility in Australia.

Based on your array of experience, what do you see as the impact of detention on, particularly, 10 to 13 year olds? 

In a word: bad. 10 year olds are quite vulnerable in detention and that can be a concern for both their safety, but also their worldview if they are associated with older, more sophisticated offenders and trying to fit in. It can be really quite damaging for very young people to be in custody.

How is the judicial system, as it stands at the moment, promoting rehabilitation and trying to prevent recidivism?

There’s a series of steps depending on the severity and frequency of offences. If a young person engages in criminality for the first time, ideally they’re diverted from the children's court to police caution or to a youth justice conference, with the emphasis on not having them enter the system. Justice conferences build on a restorative justice model; the young offender and victim, in the presence of a police officer sit down, talk it out, and then develop an outcome plan which essentially identifies what the young person will do to make amends. 

At that point, if they continue to offend, they are likely to end up in the children's court which has a heavy emphasis on rehabilitation. There's an effort to try and provide community-based supervision, provide links to counselling services and other support mechanisms.

How would raising the age of criminal responsibility from 10 years old affect things? 

In a perfect world, welfare, child protection and other systems better respond to the needs of those young people. Raising the age will both clear the very young kids out of the system that can be stigmatising, and divert them into the welfare system which will slow their entry into the youth justice system. 

What have you identified [in your research] as the key considerations for the development of effective crime prevention plans?

In the first instance, effective crime prevention policies require early intervention. The provision of parenting training to help and guide new parents and the provision of child care and school enrichment programmes to help young people are important focuses. Then it's about building strong communities: how do we ensure that young people grow up in neighbourhoods where crime isn't rife, where there are lots of positive opportunities for their development. 

In light of that, would changes in the age just be a band aid solution? 

Not necessarily. Raising the minimum age of criminal responsibility is an adjunct to all of those things: it further helps us keep children out in the criminal justice system to allow them to mature and allow them to get the types of services that are more likely to provide a supportive framework and to assist them to avoid future offending. 

For more insights about the ‘Raise the Age’ campaign regarding the age of criminal responsibility, check out our latest episode of Footnotes, available wherever you get your podcasts.

The recent 'Raise the Age' campaign aimed to raise the age of criminal responsibility in Australia from 10 to 14. In this episode, we explore Australia's current policy on the age of criminal responsibility, look into the backgrounds of kids who are ending up in prison because of it, and also discuss potential alternatives to the current practice of youth incarceration.

Black and Skipsey: Careers in refugee rights and migration

By Joseph Black (JD II)

Many students may have little idea of what sort of career they would like to pursue after graduating from their degree. Others may have some sort of idea. Why not pursue a career in refugee rights and migration? Here are some highlights of a discussion Joseph Black had with Mitchell Skipsey, Lawyer at The Refugee Advice & Casework Service (RACS), on the field.

J: Thank you so much for being open to an interview, Mitchell.  Let me start with perhaps a big question: How can one start a career in refugee rights and migration, and what kinds of careers are available for law students?

One consequence of the limitations on funding and resources in the sector is that there’s not necessarily a single well-trodden path for graduating law students [unlike, say, clerkship programs at big firms]. Instead, there’s a variety of ways into this kind of work, such as through government teams at various Legal Aid commissions, community legal centres like RACS, or even some private firms working in migration [ranging from suburban solicitors through boutique firms and right up to a couple of fairly major organisations]. That means that plenty of my current and former colleagues have come from a wide array of backgrounds working with different kinds of people-centred areas of law, and go on to do a number of diverse and interesting things within the law. 

J: How did you start your current career? Why did you choose to work with RACS? 

While I was at uni, I worked part time at a boutique migration firm in Parramatta, Kah Lawyers. When I finished my degree in 2013, I started work there as a graduate but for the first year I was able to balance my time 50-50 with academic work at Sydney Uni as a research assistant to Mary Crock. I learned plenty of different skills in each context, and after about 18 months a role at RACS opened up. I applied and have been here ever since. 

J: What have been the most difficult parts of your current career? The most enjoyable?

I sometimes describe refugee law and jurisprudence as “relatively narrow, but extremely deep” – it’s a very complex area that’s constantly changing, particularly at the behest of the federal government. The parts of my work I find hardest often involve having to explain to clients why very complex and seemingly arbitrary decisions made by governments or courts have operated to alter and, often, seriously restrict, their rights. Those conversations are made harder by the fact that when such changes happen, they often affect large numbers of people – meaning that we find ourselves having these same difficult conversations over and over again in quick succession.

The most enjoyable parts are, essentially, the “wins”. We get to meet some incredible people in this work, from political dissidents, to women’s rights activists, to members of religious and philosophical minorities. The only real universal common thread is that something has forced them to flee their homes and come to Australia. It’s a privilege to meet many of these people, and it’s even more satisfying to be able to help them achieve safety and start to build a new life. It’s those moments you remember, many of which I’ll be proud of for the rest of my life.

J: How can lawyers working in refugee rights and migration practice self-care and maintain well-being? 

I think every single one of my colleagues has their own answers to this, as it’s something we all have to deal with every day given the emotional toll our work can take and the vicarious trauma that comes with it. There’s some universal “dos” (exercise, sleep, learning to “switch off” at the end of the day, taking leave before you burn out, etc) and “don’ts” (work yourself into the ground, isolate yourself from relationships, etc), but the specifics really vary from person to person. It can be difficult, as we can’t discuss client situations and what they’ve been through due to confidentiality, but I do debrief regularly with my wife about how I am feeling, at the end of a day over a glass of wine. I also go on long runs.

J: As a lawyer working in refugee rights and migration, one may find oneself interacting with individuals coming from different cultures and with diverse cultural practices. This may make communication difficult at times. Should lawyers seek to enhance intercultural communication skills, and how can they?

I think the answer to the first part of your question is “definitely, yes” – the second part is a bit harder. There’s some concrete skills that we can become more comfortable with, such as how to use interpreters or learning about a few relatively general cultural/religious issues, but a lot of intercultural communication simply comes with practice and an openness to others’ ideas and experiences. For myself, I find it helpful to make an effort to read and consume art from a variety of other cultures, particularly those I’ll find myself coming into contact with regularly, and drawing a lot on things I learned in my humanities subjects at uni. And, ultimately, I think the most important thing I have to keep reminding myself of: try and listen more than you talk, and do so with humility and openness.

J: Can students do anything during their degrees to prepare for a career in refugee rights and migration? 

There are obviously certain subjects that are directly relevant to the subject matter [migration law, administrative law, etc], but really a lot of what we’re looking for in a prospective refugee lawyer is about your interpersonal skills and your values. Volunteering in this and related sectors [including both legal and non-legal volunteering], and/or participation in projects that show thoughtfulness and generosity in helping more vulnerable people, can really signal that you’re somebody who’s committed to this kind of work and that you’ve got the personal management skills to handle some of the more rocky moments. It’s also extremely helpful if you learn to speak one or more other languages!

J: Can students volunteer at RACS? If not physically at RACS amid the pandemic, can they volunteer remotely? Do you have any links to RACS volunteer opportunities? 

What a great follow-up question! In short, yes – recent grads or near-grads can do their PLT at RACS even during our COVID-19-modified times. RACS offers remote supervision in line with the requirements of the GDLP program if that’s something you’re interested in. Unfortunately, while we usually also have a small army of legal student volunteers helping us with answering phones, filling forms, etc we’re not able to take on new volunteers at the moment due to COVID-19, but look forward to having new volunteers join us in the future.

There are a couple of non-legal volunteer roles available, involving fundraising and communications, which can be done remotely.

You can find information about our volunteer opportunities, and/or apply, at: https://www.racs.org.au/volunteer

J: Moving onto policy, the idea of implementing a sponsorship program for refugees similar to the one in Canada seems to have gained traction in Australia recently. Do you think this could be a possibility in Australia?

Australia already has a program designed to support community sponsorship of refugees for resettlement, known as the “Community Support Program”; it’s still relatively small and new, and relies upon community resettlement organisations as intermediaries rather than simply individual or groups of citizens as in the Canadian model. There are a lot of exciting possibilities bound up in the idea of directly engaging Australians in resettling people in need, and I think there are plenty of generous people who would gladly get involved. The pitfalls, though, with any such model would be if governments were to use this as a reason to evade responsibility for caring for the world’s displaced people, and shift it onto individuals instead. I think it’s therefore vitally important that any sponsored resettlement program operates in addition to existing programs, rather than being used to reduce the resettlement places offered by the Australian government directly.

The two managing bodies of China’s social credit system have proposed reforms to the policy scheme – but is their report a toothless monster?

By Katie Jones

This piece explores the extra-legal basis of China’s social credit system and the recent proposals to reform the scheme through a progressive vision of legality, consistency and clarity. However, the proposed developments struggle to substantiate how such ideals will be achieved in practice without any legislative mandate. 

Introduction 

China’s social credit system (SCS) collates public credit data with the objective of increasing social, corporate and government trustworthiness by administering a range of incentives and penalties that motivate compliance with the law. The administration of the SCS varies regionally, as provincial governments enforce a localised criterion upon which public credit data is assessed. Notably, the SCS does not currently operate under a legislation mandate, but as a national policy scheme dually managed by the National Development and Reform Commission and the People’s Bank of China. 

China’s SCS has been subjected to international challenge as an Orwellian structure, lacking transparency and a legal basis upon which individual freedoms are trumped by national interests. From a procedural standpoint, there is concern around the lack of codification in the extra-legal system; there is no comprehensive definition of ‘untrustworthy behavior’, nor a clear and consistent penalty scheme upon which questions of proportionality can be directed. In this way, procedural fairness is flouted as there is no way to critique a penalty system that is not codified in law, nor is there a clear process of appeal or right to recourse for those blighted by the system. 

China’s progressive adoption of a SCS affronts the challenges, and potential opportunities, arising at the intersection of algorithmic intelligence, public ethics and legality. Whilst China navigates international allegations of arbitrary punishment and blacklisting practices, it has catalyzed a discussion of a new governance instrument that may pave the way for an investigation of the power of such data collection technology. 

The conflict between individual rights and collective national interests is firmly settled with the latter prevailing in the current formulation of the SCS. China’s Constitutional preservation of the ‘Interest of the State’ and ‘Integrity of the Motherland’ (Arts. 51 and 54, respectively) effectively subdue any competing individual rights of ‘privacy of correspondence’ and ‘freedom of speech’ (Arts. 40 and 35, respectively) protected in the Constitution. Thus, the collective national objectives of the regime, based on ambiguous norms of sincerity and trust, validate the SCS as a trust-based regime that should ‘allow the trustworthy to roam everywhere under heaven while making it hard for the discredited to take a single step.’

The proposed reforms to the social credit system

On July 22, 2020, the two managing bodies of China’s social credit system databases (the National Development and Reform Commission and the People’s Bank of China) released a document calling for public comment on the legal formulation of the SCS. The report, titled “Guiding Opinions on Further Regulating the Scope of Inclusions in Public Credit Information, Punishments for Untrustworthiness, and Credit Restoration to Build Long-term and Effective Mechanisms for Establishing Creditworthiness,” (‘the report’) proposes a number of developments to ‘improve the legalization and standardization’ of the SCS, covering the scope of credit information collected, the punishment scheme and credit restoration.  

A significant deficiency of the current formulation of the SCS is the lack of codification. The absence of a clear and accessible classification of “untrustworthy” behavior and a corresponding penalty scheme (for both individuals and corporations) is acknowledged by the report. The report invokes the need for punishments to proportional and ‘clearly defined’, but simultaneously, that punishment should be considered in the context of its ‘severity…and impact’, without addressing the factors upon which severity can be measured by. Without understanding what offences evoke the controversial restrictions upon free movement at the individual level, or how trustworthy corporate behavior can attract corresponding benefits such as tax breaks, both individual and legal persons are subjected to a cloudy system administered by reference to vague nationalist norms. It is this ambiguity that characterises the broader application of the SCS, at least until it is clarified in a legislative instrument.  

Similarly, the report identified the need for the SCS to exist ‘under the rule of law.’ However, the current formulation of the SCS is administered outside of any legislation and the report offers no clarification as to how any national legislation scheme should be formulated. It also fails to acknowledge how the rule of law, with its inherent elements of clarity and consistency, aligns with the geographic discretions of the SCS, where local governments draft their own point system to assess public credit data, effectively creating ‘de facto rules’ of reward and punishment.  The policy scheme does not yet enjoy the quality of law, and the report shines no light on any pending relevant legislation. 

Finally, no right of recourse is embedded in the scheme. The report offers support to the principle of finality, noting that an individual will be ‘removed from the untrustworthy list in a timely manner…and the sharing of the information will be terminated’ upon meeting relevant credit repair conditions. However, no such conditions are identified, and the onus placed upon the individual to restore their credit rating remains ambiguous, potentially relegating individuals to a ‘blacklist’ for an indefinite period. 

The proposed reforms call for the need for the scheme to reference ‘international practice…promote measures in line with international standards’ and comply with ‘the vital interests of individuals and corporations.’ However, the absence of any reference to the substantive international standards and vital rights in question leaves an impression that China will selectively interpret the practices and rights that align with its sovereign interests.

China’s non-ratification of the International Covenant on Civil and Political Rights (ICCPR) has been a long-standing topic of critique; if the ICCPR was ratified, it would render fundamental rights justiciable. However, this is muddied by the fact that the SCS is a policy scheme, which Professor Xingzhong Yu notes would ‘prevail over’ justiciable laws themselves in a model of state legalism. Professor Leila Choukroune considers how ‘stabilizing law’ in China, which includes legislation and policy mechanisms that prioritise social harmony, ‘bring no universal claims…it limits itself to the border of Chinese society’ in her 2016 publication. This perspective would position the SCS as effectively only within the purview of China as a sovereign policy scheme, not intended for challenge under instruments like the ICCPR. Interestingly, this unique legal consciousness must find a balance with China’s role in a globalising world, and this report does reflect an attempt of further ‘institutionalising and internationalising’ the legal landscape. 

The report perceivably attempts to balance the scales between the national interests elevated through the SCS and desirable principles of fairness and transparency for the individuals and corporations living and operating under the mandatory scheme. The references to principles of proportionality, consistency and transparency are hopeful, but ultimately it fails to enlighten the international community as to how such quixotic statements of individual rights will be regulated and enforced. 

By Katie Jones

The Invisibility of Rape Culture in Modern Society

By Suma Agastya (JD1)

Content warning: rape, sexual violence

‘Rape culture’ thrives in an environment in which sexual violence and assault is freely perpetrated. In our modern and globalised society, it is shocking to notice the prominence of rape culture increasing despite the call to action to reduce such instances. From personal experience, the attitude of ‘boys will be boys’ normalises sexually promiscuous comments, jokes, inappropriate touching, and similar to continue. Unfortunately, most readers of this article would have experienced or been in close contact with some form of sexual harassment or violence during their lives. Such instances have the impact of diminished mental health outcomes including anxiety, depression, trauma, and others.[1]

Coming from a South Asian background, I noticed some covert similarities between South Asian and Western cultures – an aspect which I did not pay much heed to before. Whereas in South Asian cultures violence towards women is more normalised within society,[2] Western cultures demonstrate some similar attributes in a hidden manner. This article will focus on how the attitude of ‘boys will be boys’ leads to a toxic environment cross-culturally, and how as law students we can strive to change this mentality in our community.

South Asian ‘rape culture’

A monumental juncture which brought to light the atrocities of ‘rape culture’ in South Asian communities was the 2012 Nirbhaya case which shocked the entire sub-continent. For a quick recap: Nirbhaya (an alias) was a young Indian woman who was travelling home in a bus with a male friend. During the course of their journey, the staff of the bus – which included the driver, a cleaner, a ticket master, and three others (one of whom was a minor) – proceeded to attack Nirbhaya’s male friend and rape Nirbhaya in a gruesome manner which ultimately resulted in her death. This case was the eye-opening moment that the younger generation associate with the beginning of the #metoo movement in India and the fight for improvements in the status of female-oriented sexual violence in the country. Further, it opened the discussion among lawmakers regarding the status of legislation and introduced new anti-rape laws to the country.

The patriarchal South Asian community makes it difficult for women to cultivate the independence and courage they require to promote empowerment. As we know from media and personal experiences, the strength to fight the so-called system stems from maintaining a support system, the lack of which also acts as a barrier in South Asian society. There is a startling sense of ‘women bring down women’ as the patriarchal values are deep-rooted in the culture and traditions which are still upheld today.[3] Women are taught to remain passive and compliant, even in the face of sexual violence.[4] While these values are ever-evolving, the change is slow and somewhat inadequate as it falls heavily on our generation to drive this change. However, such instances as described above would undoubtedly diminish morale.

In addition there is the consideration of media influence. The horizon of South Asian cinema till date continues to explore themes of sexual harassment albeit they have improved significantly to support women’s empowerment. The majority of films still contain storylines where the female character’s refusal to comply is taken as an unexpected deviation from the tradition of female obedience  – a theme that is replicated into daily life. Media, which is a foremost channel of influence, should take care and understand the importance of overt and covert messages and utilise these effectively to educate the boundaries of sexual violence.[5]

Translation into Westernised society

Having grown up in a Western society, I have been protected against the atrocities which many women from the sub-continent would have encountered during their lives and the primal fear regarding the possibility of sexual violence. The fundamental similarity between different cultures translating sexual violence is the attitude that ‘boys will be boys’. It is clear that there are many issues which could stem from such an attitude, but in my opinion the most problematic is condoning sexual harassment behaviour by diminishing its significance. In many cases which arise from the ‘boys will be boys’ attitude, the victim is made to suffer tremendously beyond the inappropriateness of the accused’s actions. The consequences of bringing such behaviour into the light and recognising harassment for what it is can result in victims losing their family and friends, being manipulated, and ostracised among others. It takes an immense level of courage and confidence to be able to identify sexual harassment and declarethat one is not willing to be an active nor passive participant in such an environment.

Utilising our diversity

Law schools, especially the University of Sydney Law School, homes a diverse community consisting of different ethnicities, religions, social classes, and other unique characteristics. Luckily for us, this means that being a part of the community of future law-makers, the voice of our generation makes us the ideal candidate to promote change while simultaneously keeping in mind our diverse personality. The attributes which will make us successful after our education is essentially broken down to our purposeful work ethic, effective communication skills, and courage to chase our dreams. This amalgamation of traits will serve us well when promoting change in social issues including diminishing the prevalence of rape culture. This change will encompass cultural and social attitudes, and reinventing the law itself to address ‘rape culture’ concerns.[6]

I personally urge you all to check in with those around you. Be open to receiving criticism. Be aware of your actions. As a lawyer, you have the ability to influence the minds of your community and drive social change. Confront the individual whose actions you believe may make another person uncomfortable. Keep in mind that there is an entire community of lawmakers who will support your honesty and admire your courage. Whether you do this for yourself, or to help another in distress, it truly depicts a reflection. Remember that the fight against sexual harassment is not for an individual, but for society at large, and every step you take will help further this cause.

Finally, I implore you to not adopt the ’boys will be boys’ attitude. When an individual either comes to you claiming they have been the victim of sexual harassment, or been accused of sexually harassing another, do not dismiss or minimise this. Any type of sexual harassment, no matter how miniscule you personally believe the matter to be, must be considered with respect because it is simply the acceptance of such behaviour in our society which allows such experiences to continue.

[1] Unaiza Niaz and Sehar Hassan, ‘Culture and mental health of women in South Asia’ (2006) 5(2) World Psychiatry, 118.

[2] Dinesh Bhugra and Gurvinder Kalra, ‘Sexual violence against women: Understanding cross-cultural intersections’ (2013) 55(3) Indian Journal of Psychiatry, 244.

[3] Unaiza Niaz, ‘Violence against women in South Asia’ (2003) 6(84) Archives of women’s mental health 173.

[4] Bipasha Ahmed, Anamika Majumdar and Paula Reavey, ‘Cultural transformations and gender violence: South Asian women’s experiences of sexual violence and familial dynamics’ (2008) Gender and Interpersonal Violence 44.

[5] Sagarika Garni, ‘Seeking justice: Mobilizing the South Asian community in the face of assault’ (2018) Pomona Senior Theses 187.

[6] World Health Organisation, Changing cultural and social norms that support violence (Briefing, No 1) 1.

SULS COVID-19 Student Experiences Survey

The SULS COVID-19 Student Experiences Survey was administered in Semester 1, 2020 to gather information on students' experiences of the COVID-19 pandemic. It measured experiences in three areas: economic experiences, academic experiences and mental wellbeing experiences. It was presented to the law faculty on 2 July 2020 at the Student Staff Consultative Forum.

View the full Report here.

The Future of Justice: Australia’s Transition to Online Courts

By Victoria Hospodaryk, Katie Jones and Jin Yoo

Introduction

The near universal accessibility of the internet in Australia has led to the simplification of many commercial activities such as retail banking and the lodging of tax returns.[1] Conversely, navigation of the judicial system, which prior to COVID-19 had largely resisted digitalisation, remains a complex, expensive and daunting experience for most litigants. Despite the incremental acceptance of technology by the Australian judiciary, the experience of comparable common law jurisdictions suggests a transition to online courts is inevitable. Proponents of online dispute resolution (ODR) point to Canada’s first online tribunal, the Civil Resolution Tribunal (CRT), as the optimum online court model. Offering  an end-to-end virtual solution that attempts to resolve small claims disputes before the need for trial arises, the CRT is a product of intensive collaboration with legal and IT professions. This article does not necessarily suggest Australia can feasibly adopt such a solution in the short-term, but analyses the opportunities and challenges that ODR brings, both inside and outside the courtroom. As recent COVID-19 case law indicates, the race to digitalise dispute resolution raises unique challenges for all parties involved, ranging from procedural obstacles of witness management and document sharing, alongside broader perceptions of formality and fairness in an online setting, and the implication for the adversarial character of our legal system.  While the CRT is capable of improving access to justice by minimising costs, increasing community engagement and reducing court backlog, whether a similar model will succeed in Australia ultimately depends on the ability of the legal profession to embrace change.

The Australian Response: The Acceptance of E-Trials

In the wake of COVID-19, Australian courts have quickly transitioned to hosting court procedures online and despite being confronted with a variety of logistical obstacles, have held that such challenges are generally not intolerable. The recent Federal Court case of Capic v Ford Motor Company of Australia Limited (Adjournment)[2] held that the challenges of technology, witness procedure, document management and trial length were real, aggravated difficulties inherent in virtual solutions, but were not insurmountable or enough to warrant adjournment to a face-to-face trial. The decision suggests a willingness on behalf of the courts to embrace online trials unless parties can prove a special disadvantage that makes an e-trial particularly unfair. Perram J observed the inability of virtual solutions to be applied equally in every case, such as for non-English speaking applicants. This balancing of fairness seems crucial so as to not exclude disadvantaged groups whose court experience may be unfairly prejudiced, and contradict the overarching objective of  ‘just’ civil dispute resolution.[3] A similar decision was held in Australian Securities and Investments Commission v GetSwift Ltd, [4] where Lee J noted the failure of logistical challenges to create ‘any real risk of practical injustice’ [5] to warrant adjournment. His Honour encouraged a flexible approach from the court, suggesting out-of-hours sitting to facilitate different time zones and revisiting adjournment if ‘real prejudice’ arose.[6] The decision emphasised the implications of case backlog, and the ensuing prejudice to delayed parties. In this way, such cases align with the need to facilitate just, efficient and inexpensive resolution of civil disputes.

Despite Lee J’s recognition that justice should be ‘perceived to be done by those involved in it’, [7] there is the alterior challenge of upholding the formality of court procedure online. Professor Celia Kitzinger’s analysis of the serious medical case of A Clinical Commissioning Group v AF & Ors [8] considered the perspective of a witness whose father was at the centre of the case, and how the ‘informality’ of online processes injured the party’s perception of seriousness, fairness and substantive justice in the case. This poses a unique dilemma; all parties appear effectively equal in their respective ‘little squares on the screen’, [9] and this can both humanise a process that is often defined by convention and tradition, but equally threaten the sanctity and legitimacy of court procedure. Australian courts have thus acknowledged that adjournments will not readily be granted based solely on general challenges posed from the abrupt shift to online trial. However, they have also observed that virtual solutions cannot cater for everyone, and the unique circumstances of each case must be recognised; an important reconciliation in the pursuit of a fair process.

Risks: Will Technology Compromise the Integrity of the Trial?

As Australian courts have already discovered, the benefits offered by online trials, such as ease of communication, efficiency and alleviated pressures on courts, are equally accompanied by risks.  One of the most serious impacts of technology is upon the crucial duty of confidentiality [10] owed by lawyers to their clients. Client legal privilege is a common law protection against disclosure of certain information[11] held to be privileged within the meaning of the law,[12] and designed to ensure client confidence in lawyers.[13] Nowadays, the pre-trial process presents many opportunities for the  inadvertent disclosures of confidential information through emails, electronic storage and metadata, which is especially problematic given that the duty of confidentiality is essential in promoting positive public opinion and trust in the legal profession. These concerns may be further exacerbated by a transition to online trials, as court hearings, examinations, and confidential legal and personal information are likely to become susceptible to third party interception and exposure.

Furthermore, third party providers often require users to accept their provider’s terms of service, reserving the right for the provider to access, store, and scan information uploaded by users as it sees fit, without the user’s prior consent. While allowing for easy recording and sharing of meetings, video conferencing software also carries security and legal risks, as the court process can essentially be stored in the form of a video recording. Further, if the link providing access to the online conference is leaked to the public, which is likely given the proliferation of emails and online messages exchanged between the stakeholders in the lead up to the court hearing, the hearing may become open to uninvited members of the public. As such, clients may no longer be willing to provide full disclosure for fear of third parties being privy to the information, thus undermining the centrality of the client-lawyer relationship, and the integrity of the trial system.

Canada’s Civil Resolution Tribunal: The Inevitable Solution?

The risks posed by online trials may well be overcome by the introduction of an online dispute resolution platform such as the Canadian CRT, which would also serve to dismantle many of the traditional barriers to justice. Established in July 2016, the CRT was initially aimed at small claims disputes of under $5000 and strata property issues,[14] but has since expanded to matters concerning debt, construction, employment insurance property.[15] Following interaction with the CRT’s Solution Explorer, a chat-bot tool providing free legal information and resources,[16] users can choose to initiate an online claim and are provided the opportunity to negotiate directly with parties to the dispute. If negotiation proves unsuccessful, the next phase involves virtual third party facilitation, who assists parties reach a consensual agreement.[17] If this fails, the facilitator then prepares the parties for online adjudication by a tribunal member, who issues a binding decision.[18]

The entire process eliminates both attendance of a physical court, and the need for a lawyer.[19] As the greatest deterrent to seeking legal recourse is usually the expense of lawyers, it is this latter consideration which is of great utility to the public but which presents the utmost threat to the legal profession. The minimal costs incurred in the CRT process, which totals to approximately $200 AUD for each party,[20] would be welcomed by many Australian users, particularly those in rural communities where the infrequency of local court sittings has contributed to the scarcity of legal services.[21] In British Columbia, the CRT has spared many members of rural communities the time and expense of  travelling hundreds of kilometres to receive legal advice,[22] and has condensed the entire ODR process to ninety days for most cases.[23] While in 2019, the NSW Local Court processed 90% of the 72,070 civil cases filed in the Small Claims Division within six months of initiation,[24] only 2,052 of the 15,028 small claims disputes resolved by the CRT in August 2020 were referred to adjudication by a tribunal member.[25] Thus, just as the CRT has liberated BC’s Provincial Court system of an enormous burden by diverting simple legal disputes to an alternative resolution mechanism, the establishment of a similar ODR system has immense potential for reducing court backlog in, and improving accessibility to, the Australian justice system.

Conclusion

It therefore remains to be seen whether the public, and the legal profession itself, will be receptive of a system which renders the role of the lawyer obsolete as the Canadian model does. While the CRT represents a golden standard of interaction with the legal system online, technological progression in Australia is hindered by the continuing reliance on physical interaction with the legal system, meaning the e-trial may remain a more realistic approach to achieving the just, quick and cheap resolution of disputes.

Endnotes

[1]Rebecca Varley and Neha Bagga Roy Morgan, ‘Consumer Views and Behaviours on Digital Platforms’, Australian Competition and Consumer Commission (Final Report, November 2018) 49 <https://www.accc.gov.au/system/files/ACCC%20consumer%20survey%20-%20Consumer%20views%20and%20behaviours%20on%20digital%20platforms%2C%20Roy%20Morgan%20Research.pdf>. 

[2] Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486.

[3] Federal Court of Australia Act 1976 (Cth) s 37M.

[4] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504.

[5] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].

[6] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at  [21].

[7] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].

[8] A Clinical Commissioning Group v AF & Ors [2020] EWCOP 1.

[9] Celia Kitzinger, ‘Remote justice: a family perspective’, Transparency Project Blog, 29 March 2020 (www.transparencyproject.org.uk/remote-justice-a-family-perspective/)

[10] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 9.1

[11] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.

[12] Evidence Act 1995 (NSW) s117.

[13] Attorney General for the Northern Territory v Maurice (1986) 161 CLR 457, at [488].

[14] Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.

[15] Michael Briggs, ‘The Civil Online Court in England’ in Rabeea Assy and Andrew Higgins (eds), Principles, Procedure, and Justice (Oxford University Press, 2020) 135, 140.

[16]  Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.

[17]  Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.

[18] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[19] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.

[20] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[21] Law and Justice Foundation, ‘People in rural, regional and remote areas’, Access to justice and legal needs. Stage 1: public consultations (Web Page, 2003) <http://www.lawfoundation.net.au/report/consultations/43EEDFB6FD42A68DCA257060007D4EE1.html#bmk_fnote91>.

[22] BC Judges Compensation Commission, Final Report of the 2010 British Columbia Judges Compensation Commission (2010), 19.

[23] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[24] Local Court of NSW, Annual Review 2019 (2019) 20 <https://www.localcourt.nsw.gov.au/documents/annual-reviews/Local_Court_Annual_Review_2019_v1_accessible.pdf>.

[25]Civil Resolution Tribunal, ‘Small Claim Disputes - August 2020’, CRT Statistics Snapshot - August 2020 (Web Page, 2 September 2020) <https://civilresolutionbc.ca/crt-statistics-snapshot-august-2020/>.

GPT-3 in Contract Drafting - Opportunities and Challenges

By Sophia Maranan, Jerry To and Tim Yang

In recent years, we have seen unprecedented technological advancement across broad disciplines, showing great potential and revolutionising the way certain tasks are operated. Such technology is remarkably applicable in the area of law, where artificial intelligence (AI) systems are being used to automate and augment legal procedures such as legal research, e-discovery, contract drafting, and predicting litigation outcomes. In June 2020, OpenAI released a new AI system called GPT-3, a developed language model that has 175 billion parameters.[1] Due to its size, GPT-3 can carry out specific tasks such as generating code, solving problems, and composing poems without the need to input large amounts of complex data.[2] As it is in its beta stage, it is only accessible by a limited number of individuals.[3] Regardless, the introduction of GPT-3 gives access to new opportunities pertinent to the field of law.

The practicality of GPT-3 could help in attaining efficient legal procedures, the development of access to justice, and the reduction of costs for legal procedures such as contract drafting. This article will discuss some of GPT-3’s capabilities in more detail, particularly in the area of contract law. This includes its ability to incorporate vast amounts of information in anticipating potentially frustrating events. On the other hand, potential pitfalls of GPT-3 will also be discussed, such as the issue of attributing liability when a contract made with GPT-3 is found illegal.

The upside: Anticipating future events and lowering the cost of contract drafting

COVID-19 has spurred numerous recent changes in government policy and the economy, which has been significantly detrimental to the operation of many commercial contracts and thus contributed to the expected increase in contract dispute volumes for the year of 2020.[4] These disputes partially arise from the trouble that the many signatories of contracts likely would not have established a clause that gave them the right to terminate on grounds of the disruptions caused by COVID-19. As such, these circumstances have led many to turn to the doctrine of frustration to discharge their onerous contractual obligations, as evidenced by the near 500% increase in search interest for the “contract frustration” term on Google.[5]

The doctrine of frustration enables courts to terminate a contract should it become incapable of being performed in a way that is radically different from what the contracting parties had originally intended at the time of formation, and the doctrine will not be invoked if the parties ought to have reasonably foreseen the eventuation of the frustrating event.[6] The latter part of this rule is problematic for parties since what events they can foresee given their resource constraints, lack of knowledge, and a myriad of other idiosyncrasies may differ vastly from what the court believes they should reasonably have foreseen. Consequently, contracting parties who face a great difficulty but not an impossibility in performing their contractual obligations will not be entitled to invoke the doctrine of frustration.

However, with GPT-3’s superior language learning model, many of the frustrating events of the future like COVID-19 that are just starting to become reported in the news cycle may easily be spotted and gathered, and so allow legal practitioners to draft more comprehensive contracts that account for the impacts of these future frustrating events. Such news sentiment extraction and analysis has already been applied successfully in the related field of economics without GPT-3, where the creation of a sentiment index by researchers that can extract keywords in news articles was shown to be capable of providing statistically significant predictions of near-term economic conditions.[7] GPT-3 will not only speed up this process of trend-spotting but also increase the accuracy of the results given its ability to draw on over 175 billion parameters, which can include vast arrays of textual data in the news cycle. Hence, GPT-3 can help at least reduce or at most eliminate the possibility of costly contractual disputes for parties by helping draft contracts that allow parties to terminate when an event that can impact on their transaction occurs.

More generally, GPT-3 can assist with contract drafting by reducing the time taken for drafting and also minimizing any blind-spots often missed whilst drafting. This improvement in efficiency is expected since the rapid natural language processing abilities of AIs like GPT-3 allow it to “interpret and understand questions presented in plain language… by analysing the words, sentence structure and patterns of human communications ” to draft contract-like documents.[8] For example, tools such as LawGeex that are based on natural language processing engines help identify and include frequently missed clauses for contract drafting, which has been claimed to help minimise the time it takes practitioners to review contractual documents by up to 80%, and speed up the drafting and contract signing process by up to 300%.[9] Given the already impactful nature of legal software based on older natural language processing engines, the inclusion of GPT-3, an exponentially more powerful engine, would only bolster the favourable impact aforementioned on the legal profession’s costs and speed of operations.

The downside: Liability in AI-created contracts

Despite the overwhelming benefits provided by GPT-3, its widespread usage in the creation of contracts poses significant concerns as to the apportioning of liability towards non-human agents who played a part in creating said contracts when they are held to be unenforceable. Although it has long been held by the High Court that there is a duty of care owed by professionals to their client and failure to fulfil that duty constitutes negligence, extending that doctrine of negligence to cover AI liability is a whole other issue. This underscores the fundamental difficulty of reconciling the ancient and sometimes anachronistic nature of the common law with the incredible advances of modern technology.

The first and perhaps most simple challenge is that under the current law, machines are regarded as either services or products and as such have no legal personality. There have recently been calls within the legal profession, such as that from International Bar Association, for courts to start recognizing a form of “AI-personhood” akin to that of corporations in order for them to be sued, but it is still very unclear as to how this doctrine would work in practice. The second and much more difficult issue is how to apply the principles of negligence to a non-human agent. One of the most useful, and indeed ingenious, legal fiction in all of law is that of the ‘reasonable person’, whose conduct serves as the benchmark against which the parties are judged. The reasonable person would certainly weigh whether the potential loss was reasonably foreseeable before executing an action. However, since the decision-making process of AI differs immensely from that of humans, the application of this standard cannot be applied. Advanced AI such as GPT-3 utilises machine learning and massive data sets to solve problems without human interference. Can it really be said then, that the programmer/firm that is responsible for programming the AI is also responsible for the path that the AI took in reaching its conclusion, even though that path is completely void of human guidance and thus utterly unforeseeable?

Perhaps this philosophical dilemma might never be satisfactorily resolved, but for the time being, the most feasible compromise is perhaps implementing regulations which make the use of AI such as GPT-3 to be the exclusive prerogative of certified legal professionals, which not only allow an element of human oversight over the whole process but will also make it easier in terms of tracing liability. The Government could create two agencies to fulfil this goal: one that would legislate the relevant standards and ethical requirements and one that enforces them. The Courts could then simply adopt the view that the AI in question is merely an agent akin to the vicarious liability doctrine currently applied to liability against businesses for employees acting in the course of their employment,[10] which would shift the liability burden from AI to that of lawyers. This method solves the main issues regarding AI liability: by tying AI liability to human agents, the applicability of the reasonable person standard is maintained without undoing centuries of common law jurisprudence.

In conclusion, GPT-3’s operational processes could lead to favourable outcomes in the legal profession and create greater opportunities for conflict resolution and establishing a more effective and accurate justice system. However, there will also be risks and drawbacks regarding the presence of technology in a typically traditional field. For instance, the concept of liability is one that must be notably tackled. This, however, should not hinder or prevent GPT-3 from showing its full potential and being applied to the legal profession. Overall, GPT-3's capabilities are exceptionally promising and could pave the way to a stable use of technology in law.

[1] Will Douglas Heaven, ‘OpenAI’s new language generator GPT-3 is shockingly good – and completely mindless’, MIT Technology Review (Blog, 2020) 3< https://www.technologyreview.com/2020/07/20/1005454/openai-machine-learning-language-generator-gpt-3-nlp/>.

[2] Dale Markowitz, ‘GPT-3 Explained in Under 3 Minutes’, Dale on AI (Blog, 2020) 8 < https://daleonai.com/gpt3-explained-fast>.

[3] Ibid 10.

[4] Norton Rose Fulbright, 2019 Litigation Trends Annual Survey (Survey, 2019) 5 <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/final---2019-litigation-trends-annual-survey.pdf>.

[5] Google, ‘Google Trends’, Google Trends Explore (Web page, 19th of September 2020) <https://trends.google.com/trends/explore?date=today%205-y&q=contract%20frustration>.

[6] Davis Contractors v Fareham Urban District Council [1956] AC 696; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.

[7] Kim Nguyen and Gianni La Cava, ‘News Sentiment and the Economy’ (Bulletin, Reserve Bank of Australia, 19th June 2020).

[8] Sean Semmler and Zeeve Rose, ‘Artificial Intelligence: Application Today and Implications Tomorrow’ (2017) 16 Duke Law & Technology Review 85, 87.

[9] LawGeex, ‘LawGeex’, LawGeex (Web page, 19th of September 2020).

[10]  Prince Alfred College Inc v ADC (2016) 258 CLR 134.

Predictive Judicial Analytics: Implications for Rule of Law and the Legal Profession

By Kelly Choo, Deaundre Espejo and Duranka Jayasinghe

Our legal landscape is rapidly evolving, and one of the most significant disruptors of the past few years is the use of predictive analytics.

Predictive analytics refers to the forecasting of outcomes through analysing quantitative data, which allows lawyers to engage in more efficient and strategic decision-making. This includes predictive judicial analytics, which involves the analysis of judicial behaviour by looking at decision-making patterns of judicial officers and predicting the likely outcome.

While this is something that lawyers have been doing anecdotally for years (e.g. ‘Judge X is generally pro-defendant in these types of cases’), the rise of Artificial Intelligence (AI) allows for a more data-driven analysis.

According to Jeff Arvidson, Director of Product Development at Thomson Reuters, judicial analytics allows lawyers to conduct more focused and targeted research based on wider sets of information.

There are several ways in which such technology can enhance legal practice. For example, if a client is seeking to pursue a particular motion strategy, AI can calculate how often a particular judge rules in favour of that type of motion, and how long it might take to obtain that ruling.

Another example is the ability to look at a judge’s experience either in an area of law or a specific industry, based on how frequently they have handled a type of case. As a result, lawyers would be better able to tailor their arguments to suit the type of legal thinking the judge has been familiar with.

“[S]uch granular data has clear implications for budget determinations and trial strategy” Arvidson writes. Indeed, the ability to quickly identify patterns in large datasets has the potential to help lawyers improve client service, refine legal research, and optimise law firm operations.

Today, platforms which currently offer this service include LexisNexis, Premonition Analytics and Bloomberg Litigation Analytics.

But despite its considerable benefits, judicial analytics poses several ethical problems for the legal profession and the law more broadly.

Concerns of Adopting Predictive Judicial Analytics

Predictive technology has been criticised as exemplifying a “shift from reason to statistics.” The nature of such technology is reliant upon quantifying large sets of data and utilising algorithms to identify correlations, which inevitably presents a number of concerns.

First, predictive analytics disregards the explicit reasoning and causal inferences that are central to judicial opinions. As conclusions are derived from unintelligible algorithms that determine correlations between various data points, a substantive understanding of the law, or the merits of any given case, is arguably rendered moot.

In fact, according to Eliot Siegel, Professor at the University of Maryland, the objective of predictive analytics is “more to predict than it is to understand the word.” This indicates not only the lack of consideration for legal argumentation, but the absence of the contextual and social frameworks through which the law is developed.

Consequently, predictive judicial analytics illustrates a transition towards a codified system that is controlled and understood exclusively by “technically sophisticated individuals.” It is thus unable to provide an explanation for the conclusions it reaches in predicting judicial outcomes to lay individuals.

This is particularly the case if forms of artificial intelligence that possess machine learning systems are applied in judicial prescriptive analytics, as they would come up with reasoning and ‘evolve’ beyond the comprehension of their creators. In such cases, fundamental principles such as the rule of law and open justice – which allow for judicial systems to be open and transparent, and judges to be held accountable through providing reasoning for their judgements – would be contravened.

Secondly, not only are these data points removing legal reasoning, but accurate predictions would result in the modelling of unconscious biases which currently exist in judicial decision-making.

A study conducted by Daniel Chen, professor at Toulouse School of Economics, looked at asylum decisions in the US since 1981. It found that the time of day significantly influenced decisions, as well as other factors such as the weather, how masculine they perceived the applicant to be, and the applicant’s family size.

A highly effective analytical tool would necessarily include these factors. However, such biases are not only difficult to account for, but have no place in decision-making.

Additionally, there can also be issues with the datasets used in judicial analytics. Predictive tools will need to be trained on thousands of historic judgements before they can spot trends and patterns, which will reproduce existing imbalances.

For example, the Australian Law Reform Commission has found that Indigenous peoples are less likely to be granted bail than non-Indigenous persons. Utilising this data would therefore normalise the uneven application of the law by accepting imbalanced predictive solutions which are skewed against Indigenous clients.

In addition to furthering existing biases, predictive analytics may become another mechanism through which inequities in access to justice continue to proliferate. The use of highly technical, and most certainly expensive, technology will be exclusively for the “most capable litigants” whilst continuing to disadvantage others.

Moving Forward, The Role of Lawyers

Finally, the use of predictive judicial analytics may shift the role of legal practitioners from traditional ‘advocates’ to mere ‘statistical advisors’. Until today, successful lawyers have been responsible for performing high-volume, routine legal tasks. This forms the groundwork necessary to appear before a judge.

These roles are now at risk of automation, with new roles for lawyers being suggested in the context of growing interconnectivity.

Particularly, the best lawyers will be expected by their clients to utilise technology to reduce legal costs on automatable tasks, maintain effective relationships between lawyer and client, and really understand how the technology they use works. An example of this is how the Hewlett Packard Enterprise legal team uses approximately 30 bespoke legal applications to support a multitude of work, including litigation, mergers and acquisitions, digital signatures, ebilling and contract negotiation.

Similarly, predictive judicial analytics could be used to ensure the best chances of obtaining a favourable result for any case. This becomes prescriptive analytics - the act of suggesting specific direction based on probable outcomes, which is dangerous because it legitimises the use of prediction technology as a tool necessary to provide good legal advice.

Consequently, the mere “doing” of legal work becomes less important for lawyers - with a thorough understanding of the implications of all that surrounds this becoming more important to enable lawyers to advise on the risks and returns of pursuing any legal course of action. This is the view of Professor Richard Susskind, who is convinced of the inevitable changes to the legal profession and the role of lawyers - predicting “the end of lawyers” especially due to the unaffordability of legal services.

However, Satyajit Das emphasizes the innately personal nature of legal services, which requires a bespoke and complex response - much like with health professionals, requiring various important interpersonal skills such as empathy in each unique dispute. This is reflected in the five skills that LexisNexis has identified as important for future lawyers; The ability to “think like a business person”, “acquire soft skills, emotional intelligence and technology skills”, “communicate your knowledge, ideas and value”, “develop a personal brand and profile and form strong relationships with clients and employers”.

Additionally, new roles in the legal space have emerged in the United States due to the centralisation of responsibility for legal operations, demonstrating a “paradigm shift” in corporate legal services. Some of these roles are “Legal Operations and Budget Manager”, “Director of Legal Administration” and “Legal Operations Analyst”. Relying solely on technology such as predictive judicial analytics then, it seems, is insufficient to fulfil the role of a future lawyer.

Thus, it is important for law schools to extensively cover content on technology and diverse legal roles going forward, equipping future lawyers with the knowledge and skills necessary to remain relevant to their clients. This will ensure the optimal use of predictive judicial analytics in a controlled capacity - possibly in ways that may benefit broader society, rather than the commercial value provided exclusively to firms and clients. For instance, if predictive judicial analytics is used in the self-analysis of judges, such that they can correct their own biases in judicial decision-making, this would ensure the law is applied more uniformly across cases.

Furthermore, an ethical guideline could be established in Australia, to aid in this endeavour. Pamela Stewart and Anita Stuhmcke, law professors at the University of Technology Sydney, suggest that there should be regulation on how such technology is used, including preventing it from providing “predictive or opinion-based inferences”, and ensuring that inferences are verified by the user. This would enhance the robustness of and confidence in our judiciary.

Insofar as we avoid the ethical problems that disregard explicit reasoning and causal inferences, and the perpetuation of unconscious biases which currently exist in judicial decision-making, the following will hold true: predictive judicial analytics has the potential to deeply invigorate the fundamental strengths of our justice system. So long as it is not swayed by corporate instincts and developed carefully for select purposes within the judiciary, it can be used for good.