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

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.

Emojipedia in Court

By Alison Chen (BA/LLB III)

Modern problems require modern solutions, as Justice Gibson recently discovered while delivering the preliminary judgment in Burrows v Houda [2020] NSWDC 485. In what may be one of the first Australian cases concerning the possibility of defamation by emoji (specifically a zipper face emoji on Twitter), the learned judge stated that “the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make use of these symbols”.

Emoticons are believed to have originated as “typographical art” from an 1881 issue of the American satirical magazine, Puck, where punctuation marks were arranged in a manner to depict common facial expressions. Emojis, on the other hand, were created in 1998 by Japanese engineer Shigetaka Kurita, as a way for people to communicate through icons. Today, they have become an indispensable aspect of how we communicate with others, as a handy shortcut or to provide meaning and context to other messages. Inevitably, emojis and emoticons have become the subject of court cases around the world, raising questions about their use and interpretation by courts. 

‘Typographical Art’ from Puck Magazine, 1881

A brief overview of the use and interpretation of emoji in court

Burrows v Houda was not the first time where a court has found that emojis used in a Tweet could impute defamatory meaning. The UK case of Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) concerned the defendant’s use of the “innocent face” emoji following a purportedly innocent question about the plaintiff trending on Twitter. The Court held that the ordinary reader would interpret the emoji as suggesting an “insincere and ironical” reading of the tweet. In the context and circumstances of the case, which included significant media coverage regarding the parties in the case, the use of the emoji was serious enough to imply an allegation of guilt on the part of the plaintiff.

In various criminal law cases, emojis have been found to constitute threats of violence to the receivers of the message. In France, a man was sentenced to six months in prison and ordered to pay €1000 in damages after sending a flurry of messages to his ex-girlfriend after their break-up, including a gun emoji. The gun emoji was found to constitute a death threat via image, with the judge noting that the receiver was afraid to leave her home and had recurrent nightmares after receiving the messages. In the US, two men were charged with stalking after sending an emoji-only message on Facebook to a victim whom they had previously attacked, consisting of a fist emoji, pointing finger emoji and an ambulance emoji.

In Israel, a court ruled that a series of text messages including emojis could signify intent to enter into a contractual agreement. The plaintiff had listed a property as a classified advertisement online and had received a WhatsApp message containing emojis from a person expressing interest in the property. Ultimately, the defendant opted for a different property and the court found that although the parties had not entered into a binding contractual agreement, the emojis had conveyed a strong desire and optimism to rent the property and misled the plaintiff into thinking that an agreement was impending.

On the other side of the bench, UK Justice Peter Jackson used emojis and simple English in Lancashire County Council v M and others [2016] EWFC 9 to explain the custody arrangements in place so the mother and children could understand the judgment. The judgment received widespread praise for its readability and accessibility and was even considered for an award by the Plain English Campaign.

What does this mean for future cases?

An increase in the uptake of modern forms of communication in recent years, particularly during the COVID-19 pandemic, has provided us with new ways of conveying meaning, expressing opinions and staying connected. However, in construing the meaning of these communications, one needs to be cognisant of intergenerational differences in digital habits and any implicit meanings. Practices such as the use (or non-use) of punctuation at the end of a text message may imply aggression to some generations, but other generations may construe it normally as proper English.

Although Justice Gibson determined in Burrows v Houda that expert evidence was not necessary in determining the interpretation of the emojis, it is important to note that people may interpret emojis differently and this can lead to questions regarding the intent of the sender and the reaction of the receiver. As the saying goes, “a picture tells a thousand words”. Additionally, different platforms render emojis differently, which has the potential to lead to serious miscommunications and differing interpretations.

Inevitably, emojis will slowly loom large in the courtroom, and maybe courts will need to examine how they assess the intent and significance of these “new-age hieroglyphic-style languages” (Burrows v Houda [20]), whether that may be through bringing in linguistic, communication and cultural experts to aid in interpretation.

#FreeBritney: What is a conservatorship?

By Jeffrey Khoo (BEc(Hons)/LLB IV)

For 12 years, a legal arrangement has restricted pop star Britney Spears’ autonomy over her personal and financial affairs.

Spears was placed under a conservatorship by the Los Angeles Superior Court in 2008 after experiencing public breakdowns.

Her father, Jamie Spears, has been her conservator since then but stepped down in 2019 for health reasons. He has been temporarily replaced by her manager, Jodi Montgomery.

However, on 19 August, Britney requested that her father be barred from returning to the role. A court document stated that she would like Montgomery, a ‘qualified corporate fiduciary’, managing her finances. Fans and celebrities have rallied behind her on social media.

So what is a conservatorship, and why are people demanding to #FreeBritney?

What is a conservatorship?

A ‘conservatorship’ is a court-ordered arrangement in which one person is appointed to make personal and financial decisions for another person, who is unable to make those decisions themselves.

This gives the conservator a large degree of responsibility and control. According to the California courts, the conservator decides where the individual will live, communicates with doctors about medical treatment, and even approves whether they can drive.

The conservator can also manage the conservatee’s financial assets, collect their income, make employment decisions, and control their estate.

According to Forbes, Britney’s conservatorship does not allow her conservator to force her to undergo mental health treatment, though certain conservatorships permit that.

In Australia, each state and territory has a similar set of ‘guardianship’ laws. Under the Guardianship Act 1987 (NSW) s 14, the NSW Civil and Administrative Tribunal can make guardianship orders for a ‘person in need of a guardian’, defined as someone who, due to a disability (including advanced age), is ‘totally or partially incapable of managing his or her person’.

Conservatorships and guardianships are more comprehensive than a power of attorney, which gives someone authority to manage another person’s financial affairs in certain circumstances; if they go overseas, for example, or fall ill.

Delegations of authority for medical care, such as advanced care directives, also exist.

Who might be placed under a conservatorship?

The test for conservatorship in California is very high.

The California Probate Code states that a conservator can be appointed if someone is ‘unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter’. A conservator can be established over someone’s financial affairs if that person is ‘substantially unable to manage his or her own financial resources or resist fraud or undue influence’.

It is unusual for a conservatorship to cover someone who is not elderly or severely mentally impaired.

The California courts say that a conservatorship, however, would not be granted over someone who can cooperate with a plan to meet their basic needs, who has the capacity to sign a power of attorney instead, or who has a spouse who could handle financial transactions.

A conservatorship must also be the only way to protect that person’s welfare.

Similarly, in NSW, a guardianship won’t be ordered if the person’s decision-making capacity, particularly for their care arrangements, is not affected by their disability (MHN [2017] NSWCATGD 14).

But guardianship orders can be made and varied for someone’s protection; for example, restricting someone’s movements if they are unable to understand the risks associated with COVID-19 (GZK [2020] NSWCATGD 5).

How does someone file for a conservatorship - and how does someone get out of one?

In California, the person themselves, their spouse, a relative, or interested people and agencies can submit a form and attend a conservatorship hearing.

In NSW, the person themselves, or someone who ‘has a genuine concern for the welfare of the person’, can make an application (Guardianship Act s 9).

The guardian must be ‘compatible’ with the person under guardianship, and must not have undue conflicts of interest (particularly financial) in assuming the guardianship (s 17). A Public Guardian (a public servant) can be employed as someone’s guardian.

Conservatorships and guardianship orders are reviewed every couple of years. The conservatee or another person can also request to end the conservatorship if they can prove the conservatee can handle their own affairs.

In one NSW case, a 100-year-old woman, with social and family contacts in her community who could assist her in personal and financial matters and opposed government intervention in her life, was deemed to no longer need a guardianship order (BDN (No 2) [2017] NSWCATGD 44).

Why are people demanding to #FreeBritney?

Many believe that Britney’s conservatorship is overly restrictive. While the exact terms of her conservatorship are not known, Britney has very little involvement in personal decision-making. Her conservator can restrict visitors and must disclose her purchases to the courts, for example.

Some have accused her father of making her perform and work against her will. Since 2008, Britney has held Las Vegas residencies, undertaken world tours and judged The X Factor USA. 

Given that she has been working and interacting on social media, many question whether the conservatorship is genuinely based on mental health grounds, invoking her father’s possible financial motivations instead. 

Explosively, an early document filed by her father in support of a conservatorship claimed she had early-onset dementia.

Jamie Spears ‘aggressively contested’ Britney’s request to remove him at the August 19 court hearing. The court ultimately declined to change the conservatorship until at least February 2021. 

Additionally, on August 25, Britney’s sister, Jamie Lynn, was named trustee of a trust which holds Britney’s personal assets and cash. Britney is the sole beneficiary of the trust while alive, but her sister controls her estate.

Until February next year, fans will continue to push for Britney’s independence.

The incoming global debt crisis requires a truly collective response

By Brendan Ma (BCom (Finance) / LLB (Hons) V)

From Argentina to Zambia, states are struggling to overcome the economic impacts induced by COVID-19. 

Plummeting export demand and commodity prices are driving sub-Saharan Africa towards a projected GDP growth rate of -1.6%, the worst on record. Meanwhile, for the tourism-dependent haven of the Maldives, the evaporation of international travel is expected to halve the government’s total tax revenue this year. Compared to the start of 2020, when the IMF projected positive per capita income growth in 160 countries, the IMF is now warning that 170 countries could experience negative growth.    

Source: IMF

These impacts could be disastrous if they set off a global sovereign debt crisis. Prior to the pandemic, a massive debt wave had been building up across the world. The total debt (public, private, domestic and external) owed by developing nations accumulated to the highest figure in history (nearly 2x their combined GDP). Many economists would argue that the accumulation of sovereign debt is not a significant problem insofar as governments maintain the taxing authority and long-run productive capacity to pay what is owed when they fall due. In 2020, payments amounting to 3.9 trillion USD worth of payments are due from developing nations. Yet, with GDP, tax receipts and export revenues tumbling, many of these governments are facing the real prospect of defaulting on their debt. 

Last month, Argentina defaulted on interest worth around 500 million USD. This was the ninth time Argentina defaulted. Sovereign debt lawyers and analysts are drawing comparisons to Mexico’s default in 1982. Back then, banks and investors in international credit markets halted or significantly reduced new lending to other indebted nations across Latin America. This triggered a long debt crisis amongst 27 emerging nations (including Argentina’s 5th default) and precipitated the ‘Lost Decade’ for the continent. 

The question today is whether the international financial system has the legal protections necessary to avoid another ‘Lost Decade’. 

The uniqueness of sovereign debt

At its core, sovereign debt is a contract between a government borrower and its creditor. This is often issued through government bonds and bills, although a significant proportion of bilateral debt owed to creditors, like China, is through loans. 

However, sovereign debt is unique compared to a conventional debt contract. If a commercial debtor defaults, domestic bankruptcy laws will provide temporary protections to prevent creditors from litigating or seizing assets in a frenzied fashion. For example, in the US there are automatic stays which take effect immediately upon the filing of bankruptcy. In Australia, voluntary administration under the Corporations Act 2001 (Cth) triggers automatic stays to prevent the commencement or continuation of enforcement proceedings and prevents secured creditors from enforcing security interests (except for those with security over the whole or substantial part of the whole of the debtor’s assets). 

There is no equivalent international bankruptcy system for sovereign debtors. Defaulting nations would instead be vulnerable to lawsuits or enforcement actions in a desperate attempt to protect creditor interests. During a financial crisis and health pandemic, this could be at the expense of preserving debtor government resources that are necessary to support domestic spending priorities such as funding a public health system. 

On the other hand, sovereigns have traditionally enjoyed absolute immunity from being non-consensually sued in the courts of another country. Yet, since the mid-20th century, most countries have instead recognised a restrictive theory of sovereign immunity, particularly for commercial endeavours. Nations that enter the international marketplace as a borrower will be subject to overseas judicial proceedings as if they were a commercial party. 

However, even if a creditor obtains a favourable judgment, courts will often avoid executing against the overseas property of the debtor state unless the property is used exclusively for commercial purposes. Since most overseas property of sovereigns relates to embassies, military installations and, in the case of Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43, bank accounts used for inter alia holding term deposits on behalf of the government and running a national airline, legal proceedings are not necessarily an attractive option for creditors when a sovereign defaults. 

Therefore most sovereign defaults are resolved through out-of-court negotiations to restructure the terms of the debt. However, that does not stop some opportunistic creditors from acting separately to collective negotiations and holding out for a better deal, or litigating. In the past ‘holdout creditors’ have included private vulture funds that buy distressed sovereign bonds with the aim of litigating or bilateral creditors who choose not to adhere to the collective outcomes of official negotiation forums, like the Paris Club. 

The risk of fragmented creditor approaches poses major problems in a sovereign debt crisis. It delays the resolution of the crisis and prevents a vulnerable sovereign debtor from quickly regaining access to capital markets. Importantly, it also hinders collective approaches to difficult, yet necessary, debt relief proposals. If holdout creditors exist, then the other creditors at the negotiating table are discouraged from offering discounts or deferments on debt repayments because this relief would effectively be redirected towards paying the claims of the holdout creditors. 

The international financial architecture has sidestepped these risks for a while. Whilst ad hoc sovereign defaults can be managed relatively urgently, COVID-19 is creating the possibility of a wave of sovereign defaults at once. Corralling all these disparate government and creditor interests with further defaults around the corner could be catastrophic and, according to the New York Times, ‘unlike anything we have seen’. 

Relief has not gone far enough

Attempting to avoid this wave of near-term defaults, the world’s largest 20 economies agreed via the G20 in April to suspend all 2020 debt payments for the lowest-income countries. This frees up US$20 billion for developing nations to use on vital health and economic policies in domestic COVID-19 responses. 

Whilst this is a step in the right direction, the relief only applies to debt owed to G20 nations. Private creditors are not yet obliged to follow suit. If they do not step up, then the debt relief provided by the G20 risks being directly used to repay private investors. For example, investors buying Zambian bonds at 38 cents on the dollar could generate significant profits if bondholders are repaid in full now that G20 debts are not payable in 2020. 

Developing nations are arguably better off avoiding defaults and utilising their resources for pandemic recovery, than diverting it towards immediate creditor payments. Rather than relying on all creditors volunteering to provide relief, the extraordinary impacts of COVID-19 call for much more collective global solutions. 

A role for the Security Council?

Avoiding a global debt crisis might require immediate protection for many developing countries against enforcement attempts by various creditors across the world. The UN Security Council has authority under Chapter VII of the UN Charter to impose legal immunities over state assets. This could prevent foreign enforcement by any creditor and provide the financial headroom for developing nations that the G20 intended to achieve. 

This authority has been invoked previously to shield Iraq in the immediate post-Saddam era. UN Security Council Resolution 1483 immunised all Iraqi oil sales and cash proceeds from ‘any form of attachment, garnishment, or execution’. This encouraged collective restructuring of Iraq’s debts and led to debt relief of 80% in net present value terms. 

United Nations Security Council

In order to act under Chapter VII, the UN Security Council must agree that the situation facing developing nations constitutes a threat to international peace and security. There can be no doubt that a sovereign default will accentuate the humanitarian crisis facing developing nations that are struggling to finance effective responses to the pandemic. A deepened economic and humanitarian crisis can further undermine the tenuous fabrics of political stability and peace in vulnerable nations. 

According to the Max Planck Research Institute, there is a correlation between sovereign debt and the risk of armed conflict and civil war. The risk of default undermines a state’s ability to provide basic services for its own population; it can entrench poverty and the regression of socio-economic rights in defaulting states. In these environments, threats to peace can manifest through prolonged civil unrest and violent riots, a scenario familiar to Argentina and Greece at the apex of their most recent debt crises. 

A sovereign debt crisis that engulfs many fragile developing nations simultaneously could be much worse. COVID-19 has exposed the cracks in the international financial architecture at a time when the most vulnerable states need its protection most. Avoiding another ‘Lost Decade’ will require action that is immediate, protective and – most of all – truly collective. 

In this together

By Lucy Schroeder (LLB IV)

Reconciliation Week 2020 invites us all to play an active role in reconciliation. What does this look like during a global pandemic?

The theme for Reconciliation Week 2020 could not be more apt. When Reconciliation Australia announced the theme in January, our sacred lands were ablaze, and we faced a national crisis of epic proportion. Our politicians argued back -and -forth on the cause of fires, while communities themselves were unified by the disaster. Attention turned to First Nations perspectives of sustainable land management which presented the opportunity to reinvigorate the dialogue for constitutional reform. However, another crisis has replaced this summer’s fires, affecting us on a global scale. No one could have predicted that the events marking the occasion would be cancelled in the name of social distancing, that those wishing to mark the week would have to do so in isolation. Yet being in this together has become a comforting catchphrase and a call to arms, repeated by politicians, health professionals and television presenters, as we remain glued to coverage of the pandemic. In a crisis on a global scale, being in this together has made our isolation more bearable. It has minimised our differences and highlighted our common humanity in the face of a common threat.

In many ways, we are in this pandemic together. However, while we have all been impacted by COVID-19, the risks associated with a global pandemic are not distributed evenly. Particularly, the risks to First Nations Australians in this pandemic are acute. It is true that my actions affect you, as yours affect mine; and our collective practice of social distancing has played a major role in preventing the potentially devastating effects for First Nations people from the pandemic thus far. However, we must critically engage with this inequality and play an active role in its reduction before the comfort we find in being in this together is legitimate.

In April, the Victorian Deputy Chief Medical Officer (CMO) controversially compared COVID-19 to Captain Cook’s arrival in 1770. However, a new disease introduced into a population without immunity in Australia was a tool of genocide during colonisation. Despite the intervening centuries, Aboriginal people have been identified as one of the most at-risk groups in this pandemic. First Nations people as a population have poor public health outcomes, with lower life expectancy, higher rates of chronic illness and more challenges accessing adequate health care. In a global pandemic, these issues pose potentially devastating risks. CMO Brendan Murphy emphasised how important it was to keep COVID-19 out of remote Aboriginal communities because of the near unavoidable devastation it would cause. Some communities have taken it upon themselves to enforce isolation and travel restrictions. The health issues and risks posed to First Nations communities existed long before the pandemic, yet rarely gather the national attention it deserves.

Further, there is a drastic overrepresentation of Aboriginal and Torres Strait Islander people in prisons and in deaths in custody. Despite representing less than 3% of Australia’s population, First Nations people make up over a quarter of the incarcerated population. Prisons pose a particularly high risk for the spread of coronavirus due to the density of the populations within them. First Nations people in prison are more likely to suffer from chronic disease and disability, and there are ongoing issues around the adequacy of health care accessible in prison. Furthermore, as it is well established that First Nations people are more likely to be subject to the use (and abuse) of police powers, the increase in police powers to enforce social distancing measures comes with the increased risk that these powers will be misused against First Nations people. Early NSW police data on the use of the expanded powers already showed this trend in early April. One example of this is Coonamble, where a third of the population are First Nations people, received 10% of the state’s infringements in NSW and represents 0.004% of the population. First Nations people disproportionately bear the health consequences of an outbreak, as well as additional criminal consequences..

These are complicated issues that don’t have easy solutions. There are some practical steps which will help protect First Nations people during the pandemic, and in extension, protect all of us. For example, the Aboriginal Legal Service has written a compelling open letter advocating for the protection of Mob [1] through releasing vulnerable individuals from prison who don’t pose a risk to the community and the prevention of over-policing. However, these solutions have not been broadly implemented, and the root causes of these complex problems remained unaddressed.

While it’s comforting to know that we are all in this pandemic together, it’s important that we acknowledge that we do not experience the risks and consequences in the same way.

Reconciliation demands a similar approach. The theme of Reconciliation Week 2020 In This Together compels us to think about the role we each play in reducing racial discrimination in Australia and achieving justice. As law students, we could spend our careers influencing the law, whether that involves advocating at an individual level or influencing legislation which affects everyone. It is on all of us, regardless of our race, nationality or ethnicity, to be knowledgeable of the issues First Nations people face, of the perspectives First Nations people hold, and to engage with this when we have the opportunity to make change.

Aboriginal and Torres Strait Islanders face the consequences of the absence of reconciliation in ongoing discrimination, poor health outcomes and overrepresentation in the criminal justice system, which has manifested in an increased share of the risks and burdens in this pandemic. These risks and issues existed before the pandemic, and will continue after the risk of transmission subsides unless reconciliation action is taken. All of us must play a role in making ongoing change by amplifying First Nations voices in decision-making and educating ourselves on the perspectives held by First Nations people. In a global pandemic, our collective survival depends on the most vulnerable in our society being protected through the collective action of social distancing. In our society, after the pandemic passes, achieving justice for First Nations people will similarly require all of us to play our part.  It is imperative that we maintain collective responsibility while we seek to learn from the past, come together in the present, and build towards a future of reconciliation, equitable health outcomes and reduced representation in the criminal justice system. After all, we ARE in this together.  

[1] Mob is a colloquial term used to identify a person’s own group of Aboriginal people or extended family, which is associated with a particular place or country.

How advertising stalks your life: privacy law and your online presence

By Sarah Purvis (BComm/LLB III)

Ever seen ads for products you’ve literally just clicked away minutes ago, floating on your Facebook feed? Or suddenly flooded by cheap flights to Bali in Gmail and across a bevy of other websites after looking them up? This is the world of digital marketing, where every click, tap and hover are recorded and sold to advertisers. This practice provokes a number of concerning questions: how do the likes of these multinational corporations, Facebook, Google, etc, know what you’re doing? Is it bad that they know, or are there hidden benefits to it as well? And finally – what are the regulations and the countermeasures that you can put in place to protect yourself?

How do they know what you’re doing?

Whenever you reach a website, it will often ask to read your cookies. Cookies are small text files in your computer, and when websites ask to read them, they are asking for the server to remember and identify you in order to track what you are doing. Something to remember is that a site only knows the information you provide on their particular site.  

Is this a bad thing?

It really depends on what you want to do with that information! The most that cookies reveal are profiles of your interests, spending habits and lifestyle. It makes your life easier as cookies allow websites to remember what was in your virtual shopping cart, so that you can return to it even after you’ve closed the browser. It also allows websites to understand your behaviour, so that they can send you ads that are relevant to your interests. This means that Google will try to serve ads that match your preferences, making it more likely for you to return to websites that you’ve shown interest in.

If you are concerned about your privacy, there is always the option to clear cookies and cache as frequently as you wish. Subsequently, it would take longer to assess new websites and the visited sites will no longer store your information for memory purposes, but it’s up to you to decide how you like the trade off. 

Current legislation and regulation

In 2012, the Privacy Amendment Act was implemented, which included 13 new principles and in essence mandated companies to:

• Identify the types of personal information they hold, collect, use and disclose

• Amend compliance documentation – privacy policy and collection notifications

• Amend contracts

• Train staff and engineer compliance into their systems

However, this is only applicable to entities that generally have a large annual turnover ($3 million or more). 

Something else to remember is the terms and conditions, and privacy policies that companies place on their websites. Even if you don’t read them, they do apply to you and your behaviour.

How can you protect yourself?

One way to stop information from being stored on your computer, or to stop websites from collecting cookies, is to use incognito mode. However, it isn’t the godsend that people think it is. Your browsing activity is still visible to the websites you visit, and to the networks that you access the internet through, such as your wifi provider. Incognito mode doesn’t encrypt your information, and data such as your geolocation is still available to websites, so there is no guarantee of absolute privacy.

Feeling a bit worried about your data? It’s important to remember that only YOU have control over it – information is collected only if you choose to visit and use the websites. However, all of these rules change regularly, so it’s important to keep abreast of how your online presence, and the websites that collect information about you, change as new technology continues to roll out.

Ear Hustling

By Casey Zhu (LLB III)

Ronnel Draper, also known as Rauch, is a hopeless animal lover. The connection he experiences with animals is unlike any relationship he has developed with another human being throughout his entire life. Over the years, Rauch has had a countless number of pets, or ‘critters’ as he fondly calls them, but not the kind one would ordinarily expect, like a Golden Retriever or a Tabby; instead, Rauch has kept insects of all kinds, such as spiders, moths and bees, as well as larger animals like mice, squirrels (sparrows?) and frogs. Rauch is happy with anything he can get his hands on and can keep inside discreetly. Subtlety is key – he has lost many of his critters in the past, because pets are forbidden in prison.

Rauch is serving a sentence of 15 years to life for second-degree murder at San Quentin State Prison, a maximum-security correctional facility in California. I heard of Rauch’s story in an episode of Ear Hustle, a podcast launched in 2016 that interviews men currently incarcerated in San Quentin on their daily lives in prison, as well as those who have been released, as they re-adjust to life outside. ‘Ear hustling’ is prison slang for eavesdropping, and that is exactly what co-founders and hosts Nigel Poor, a visual artist living in California, and Earlonne Woods, who formerly served a 31 year to life sentence for attempted second-degree robbery at San Quentin, do. They participate in ‘yard talk’, striking up conversations with inmates (and sometimes prison guards) and listening out for any interesting stories that can be recorded and produced in the prison’s media lab for their audiences. Usually, they don’t have to look very hard. The podcast, currently in its fifth season, relays incredible stories about the men inside San Quentin – some are funny, others are heart-breaking, but all offer profound insight into the real-life experience of incarceration and the criminal justice system.

Ear Hustle is only one podcast constituting a broader trend of radio broadcasts involving those in custody, with a sudden proliferation of these programs over the last ten years across the world. In 2007, National Prison Radio (NPR) made its first broadcast in HM Prison Brixton (formerly as Electric Radio Brixton), a men’s prison in London. Unlike Ear Hustle, NPR’s audience is targeted to prisoners across the UK, who make up the majority of their listeners. The innovation of NPR has spurred many others to follow in its footsteps, providing a platform for previously unheard voices not only in the UK and the US, but also in Israel (Radio Focus), Hungary (BARS FM) and Trinidad and Tobago (RISE Maximum Radio). Australia has been particularly influenced, resulting in the development of radio broadcasts such as Beyond the Bars, Jailbreak and WKRP Radio, as well as the podcast, Birds Eye View, involving the stories of women incarcerated in Darwin Correctional Centre. 

“…some are funny, others are heart-breaking, but all offer profound insight into the real-life experience of incarceration and the criminal justice system.”

These programs bear incredible rewards for their both participants and their listeners, inside and outside of prison. For listeners like me, who are fortunate enough to have never had a negative encounter with the apparatus of the criminal justice system or even seen the inside a police station, let alone a prison cell, these podcasts have been incredibly insightful. Ear Hustle and Birds Eye View give a tangible, initiate expression to commonly known, depersonalised trends, such as the inhumane impacts of solitary confinement and the disproportionate representation of Aboriginal peoples in Australian corrective facilities. It also introduces audiences to other niche aspects of prison life, such as what it is like to spend almost your entire life behind bars, the excruciating process of finding a compatible cellmate (also known as a ‘cellie’) and, of course, keeping pets in prison.

However, the most important outcome of these radio broadcasts and podcasts is their impact on those inside who participate by listening and creating these programs. The dehumanising impact of incarceration on the inmates can be greatly mitigated via the documentation which gives the incarcerated men and women the opportunity to voice their stories on air. The idea of creating a prison radio station, which later materialised as NPR, was put forward in 1994 in response to an increase in suicides and self-harm amongst young men in HM Prison Feltham in London. In 2016, NPR had almost 80,000 listeners; over 75% of inmates across England and Wales had listened to NPR and 37% listened daily. NPR’s aims include reducing the risk of re-offending through education on drugs and alcohol, health, critical thinking, family relationships and ethics, as well as training for skills necessary for employment. The stories that are broadcasted revolve around these themes, but also include informal conversations about almost anything, particularly music and grime. The radio’s dialogic approach is a new way to tackle the issue of education in prison, which is especially important due to the low literacy rates of those serving custodial sentences, a statistical trend seen in many countries. The study also reported that 85% of respondents had been inspired by something they heard on NPR and 75% replied that NPR had helped them to think about making a positive change to their lives.

“The dehumanising impact of incarceration on the inmates can be greatly mitigated via the documentation which gives the incarcerated men and women the opportunity to voice their stories on air.”

Listening to these programs has undeniably broadened my understanding of daily life in prison and the criminal justice system, but it has also generated just as many questions as it has answered. How can Australia’s corrective services facilities be reformed to address some of the profound inhumanities that those serving custodial sentences must face? How can we address the issue of racial asymmetry in prisons and Aboriginal deaths in custody? Should we shift away from these practices altogether, bringing restorative justice to the forefront instead? These questions are especially pertinent today, with the COVID-19 pandemic posing a huge threat to the health of those on remand. If you think being stuck at home is bad, imagine what life would be like in a 4’ x 9’ cell.

Laws that can change the way we consume

By Deaundre Espejo (BA/LLB IV)

Recent developments in environmental law have focused on the reduction of pollution and waste, as well as the shift to renewable energy. However, some argue that policy should also be directed at reducing consumption and production altogether, rather than simply minimising its carbon-producing effects. 

Several governments are beginning to introduce laws which aim to change consumption habits on a broader scale and help us lead more sustainable lives. Here are some of those policies emerging around the world.

Single-use plastics

Thailand prohibited three types of plastic  - microbeads, cap seals and oxo-degradable plastics - late last year. It plans to further ban four others - lightweight plastic bags, styrofoam food containers, plastic cups and straws - by 2022. There are exceptions for those who still need to use such plastics, including patients, children and the elderly.

Kenya has one of the world’s strictest regulations on the use of plastic. In 2017, it made the production, sale, and use of plastic bags punishable by a maximum fine of AUD $56,000 or four years imprisonment. In June this year, a ban on all types of single-use plastics in protected areas such as national parks, beaches and forests, will take effect. 

Food waste

South Korea has adopted a “pay as you waste” system. All residents are required by law to discard food waste in biodegradable bags, collected at designated checkpoints. Each bag discarded is charged a fee, priced according to volume. The bags and their disposal average a cost of about $6 a month for a four-person family, and the tax collected from this scheme pays for about 60% of the cost of collecting and processing the city’s food waste.

France became the first country in the world to ban supermarkets from throwing away or destroying unsold food. Instead, they must donate surplus food that has not passed its expiry date, to charities and food banks. Failure to do so could result in fines of up to AUD $6,300. The law also prohibits supermarkets from deliberately spoiling food in order to stop it being eaten by people foraging in stores’ bins.

Recycling and reusing

Japan’s system of recycling is one of the most thorough in the world. They have much stricter regulations for sorting, treating and segregating waste. Plastic containers must be washed, with labels removed, and cartons folded to minimise space. Any waste must be labelled with household data to ensure compliance with regulations. Further, there are very little rubbish bins on city streets, to encourage individuals to process their waste at home.

Sweden has introduced 50% tax breaks on repairs to items such as shoes, clothes and bicycles, and allows its citizens to claim, from income tax, half the labour cost of repair. It is hoped that the policy would incentivise consumers to reuse old items rather than purchase new ones. A Swedish municipality has also opened up the world’s first shopping mall dedicated to recycled, reused, and repaired goods. 

Car emissions

France has recently adopted a law implementing tax rises for high-polluting cars. As of this year, cars emitting carbon dioxide above the limit of 184g/km will be subject to a penalty of 20,000 euros (around AUD $34,000). This is accompanied by an increase in spending to assist the automobile industry in the ecological transition. The French Finance Ministry estimates the new laws will help generate $56 million in tax revenue a year. 

Spain has set up several residential priority areas in Madrid, which prohibits non-resident vehicles from entering. The only vehicles permitted to enter these areas include zero-emissions delivery vehicles, public transport and emergency services. The initiative is part of Spain’s “sustainable mobility plan,” which purports to make cities more pedestrian-friendly while reducing daily car usage from 29% to 23%. 

A tax on consumption?

Some policy-makers propose a tax on consumption, which refers to a system in which people are taxed based on how much they consume rather than how much they add to the economy (income tax). However, such a tax would be entirely regressive, as nearly all the income of poor or middle-class households goes towards consumption. There would need to be a tax trade-off or cash rebate for those households, perhaps paid for by a global wealth tax.

One thing is clear: we are consuming and producing much more than what our earth and renewable technologies can keep up with. As Australia begins to transition to renewables and overhaul its suite of environmental laws, it may want to look to the successes and failures of other countries to pursue feasible ways to regulate consumption. 

Deaundre Espejo is the Vice President (Social Justice) of SULS and a BA/LLB IV student. When he’s not studying or talking about environmental issues, he enjoys bushwalks, HIIT workouts, and RuPaul’s Drag Race.

Law in Crisis

By Robert Anstee (BA/LLB III)

The scale of change is unrecognisable to many of us. 

Narratives which have gone on volubly for decades have been rudely interrupted. 

Joining global efforts, federal and state governments have clamped down on public life. Legislated stimulus worth nearly 10% of GDP, broad shutdowns of social gathering and travel, and penalties for breaches backed up by an enlarged police presence in NSW. 

In all of this, the imperatives are our health and our economy. It seems Cabinet has taken a middle-road approach, steadily phasing in social distancing and other health measures. 

Abrupt policy changes are unlikely to be logistically or politically feasible. The government, wary of public confidence, will probably stay the course with its image of surgical, decisive strides to curb the crisis. 

Despite this steadfast stance, experts disagree on the way forward. 

Members of a GO8 expert panel recommended a full shutdown. Failing to do so, it was advised, will swamp the health system, wreak economic ruin and delay recovery. Snuffing out the virus as quickly as we can might rapidly spur the economy, as consumer demand rebounds and businesses rehire. 

A contrarian article in the New York Times suggests the opposite; that we isolate and focus resources on those most vulnerable or in need of hospitalisation. The vast majority, bearing mild to no symptoms, should go on living as normally as possible. The aim is to let society and the economy chuff along, as long-term damage to either, if less imminently, also endangers lives. 

Importantly, strict social control does much to lower infection rates, but in so doing, hinders the growth of natural immunity. To avoid the risk of a second wave of infection, we may need to hold on until a vaccine is widely distributable. Halting the economy for a vaccine one or two years away complicates matters; unemployment, strained welfare, social unrest and political polarisation are not unimaginable. 

I don’t aim to ask what measures are ideal, nor to endorse an approach. I doubt that anyone can confidently foresee the consequences of irregular actions in these irregular times. 

The point is that the government may be wrong, and the consequences may be grave. 

Thinking on things away from the fog of panic, what I do worry about is the unilateral haste of the National Cabinet, however vital and effectual, in arresting this crisis. 

Beyond the ballot box

In times like this, we can’t lose sight of those who command. Crisis often obscures and rationalises distressing changes in the way a government exerts its authority. 

Emeritus Professor Gillian Triggs of Melbourne University has often broached this issue in the context of counter-terrorism and human rights law. She has long warned that as the Executive and its hold on parliament grows stronger, our democracy and the institutions which limit bad or cruel decisions grow weaker. 

“It may be true that any one of these laws can be justified in individual circumstances… My concern is that these examples when viewed together become greater than the sum of their parts and a distortion of democracy.” 

The Constitution is famously spare on basic rights and protections. It enshrines parliamentary sovereignty, wherein parliament, essentially seized by the government of the day, can make or unmake any law. Our chances for popular participation or holding the executive to account, even in crisis, are thin, rare and largely kept in ballot boxes. 

If Cabinet has made the wrong choice, has done too much or too little, caused months or years of distress in the struggle of averting disaster, there is little facility in the law to dispute it. How can we check a government that goes too far, or worse, resolves to abuse its power?  

The shift from stable managerialism to closures, relief packages and public paralysis, then, should arguably alarm us beyond this health crisis. 

In a fast-changing world where we will undoubtedly face further and possibly graver emergencies, where executive power swells unhinged at the beck of necessity, can we rely on the usual steadiness of parliament? 

Will the next time be different?