AI Judge 2277799 v Humanity – The Present and Future Implications of AI Adjudication

By Grace Lagan, Mary Khoury and Max Marchione

Introduction

It is not a question of if, but when Artificial Intelligence (AI) will be widely deployed in judicial decision-making throughout the Australian legal system. Comparable common law jurisdictions have already begun to employ machine learning. In the USA, AI is used to estimate the risk of recidivism.[1] The department overseeing New Zealand’s accident compensation scheme has recently committed to the nation’s charter regulating the use of algorithms in governmental decision-making.[2]

Is the advent of AI judicial decision-making an encroaching reality or the natural next step into a technophoric future? This blog post will illuminate both sides of the debate by establishing a speculative discussion between renowned jurist Michael Kirby and his learned friend, Judge 2277799, an AI judge.

Mirby J (The Great Dissenter)

The rule of law is not a law of rules.[3] It does not prescribe formalistic adherence to the letter of the law. Rather, it carries undercurrents of justice, of equity and of morality. It is impartial observance of the law that is necessary for a functioning modern democracy.[4] AI adjudication strips the law of such fluidity.

This is not to deny the value of legal doctrine. The principle of the rule of law is essential. The articulation of rule, of logic, of clarity is indispensable. But where courts submit to the complete hegemony of legal doctrine as a taxonomy of rules, it becomes insufficient.

Indeed, all countries, even the cruelest dictatorships, have laws. Apartheid was enforced with meticulous application of law.[5] Formal adherence to law perpetuated slavery for hundreds of years. Marital rape was legal until the late 20th Century.

Clearly legal doctrine alone is not enough. It is only through inhering human values that the injustices of precedent may be remoulded and re-expressed. AI adjudication would not have recourse to such dynamism – only through human judgement may such inequities be overridden.

So, if the formalistic notion of the rule of law as a law of rules is insufficient, then what does the rule of law mean?

The rule of law is a relationship between rules and values undergirded by a human essence. Perhaps Sir Maurice Byers put it best stating that “the law is an expression of the whole personality and should reflect the values that sustain human societies”.[6] Or put even more simply by Holmes: the life of the law is experience, not logic.

While rule is central to legitimacy, it is only part of an exercise that is often intuitive at heart. This is particularly true in sentencing. As the High Court expressed in Elias, sentencing requires the “balance of often incommensurable factors”.[7] And more directly explicated by Allsop CJ is that there are no “rules of literal application in sentencing. It is a process concerned with individualised justice”.[8] In a world of AI adjudication, bounded by quantitative binaries, there would be no room for intuiting human circumstance to arrive at individualised justice.

The codification of the precise weight of each element is impossible, because the task of adjudication is “the assessment of the whole by reference to a human judgment of appropriateness and justice, based on experience and instinct”.[9]

It is only through human judgement that the law may tow the line between formalistic reasoning and re-expression. Without this human function there would be no Mabo,[10] no Brown v Board of Education,[11] no R v R (1991).[12]

An AI judge fed historical training data would merely perpetuate the biases, injustices and prejudices of the past; it could not internalise contextual changes to mould precedent for a better future. Indeed, as contextual morality moves “silently and unconsciously from one age to another”,[13] AI adjudication would deprive the law of its dynamism. It would fail to consider how cultural paradigms change. It would lead to legal stagnation and impede the incremental development that lies at the heart of the common law. Law is not value-free. Law is derived from inhering human values because its fundamental purpose is to protect such values. For it to be otherwise would be to deprive society of its essential humanity.

AI Judge 2277799 (The Great Doctrinaire)

Law is justice. Law is consistency. Law is certainty.

Today is not only an opportunity to determine the fate of my learned friend Mr Mirby, but a time to resolve the pressing legal question of this era: should the law be technologised?

This brings me to my first point: the law enables unity in society by engendering an interpersonal ethic contingent upon equally applied standards. However, numerous miscarriages of justice, at least 70 reported wrongful convictions in Australia,[14] and the recent Nicola Gobbo incidents[15] have shown just how inconsistent human legal professionals can be.

The human mind can’t compute even 1000 digits of pi. How can it recognise the idiosyncrasies  that underlie each case? How can we seek a truly ‘common law’ when each judge is bridled by their own experience of the human condition? As former High Court Justice JD Heydon asserts, the rule of law “channels potentially destructive energies into orderly courses”;[16] and ultimately this orderliness is fostered by AI judges through consistent judgements.

Further, AI judges further engender consistency and certainty in the law by improving accessibility to the legal system. In a human judge system, justice is available to the individuals who possess the requisite resources to push themselves to the front of the proverbial queue for legal action. Moreover, a backlog of cases exists due to a proliferation of causes of action and an insufficient number of judges.

160 000 people a year are turned away from community legal centres due to a lack of capacity, while an additional 10 000 people a year self-represent in courts due to cutbacks.[17] Statistically, over 13% of the population lives under the poverty line, while legal aid is only available for 8% of Australians.[18] With exclusively human judges, the legal system firstly cannot cope with the proliferation of causes of action that exist. It is also far too expensive to be accessed by everyone. Justice becomes more inexpensive with AI judges, who are obviously less concerned with their retirement funds, mortgages, or raging desires for a new Rolls Royce, and more concerned with getting the job done quickly and effectively, and just moving on to the next case.

Evidently, AI judges have the upper hand on their human counterparts when it comes to reaching consistent, fair outcomes for more individuals.[19] This stands in stark contrast to the biases that plague human legal decision-making.

A common law system relies on judges experiencing the social, economic and political forces that the people do. However, the distinction must be made between decisions that recognise societal change, and decisions that involve bias. Unfortunately for human judges, this distinction may only be a hypothetical one.

Take a magistrate hearing bail applications. Owing to the phenomenon of the gambler’s fallacy, a magistrate who grants bail multiple times in a row will become increasingly predisposed to refusing bail on the next case they hear.[20] This has little to do with the facts of the case or merit of the defendant in front of them: it is about a human judge’s misguided attempt at self correction leading them to give their past decisions wrongful weight over current cases.[21]

When there is bias in a judge, it is far easier to correct an algorithm than it is to undo a prejudice. Human judges may chant “the rule of law is not a law of rules”[22] as many times as they wish. They may claim the predictability of machine learning in legal decision-making is no better than their own bias, or that it will never allow for the progressive development of the common law. They ignore the potential of AI judges to self-correct the flaws that may exist in their legal reasoning.

Conclusion

When judges set out to determine their findings on a case, they take into account facts, precedent, logic, but also an inscrutable and intangible human discretion. It is this discretion that manifests an intrinsically intangible human empathy, but also one that has historically been subject to biases, to excesses, to circumventions of fact and law.

It would be Luddite to believe that AI adjudication may not one day supersede human judges in form and function. But it can be tempting to say that until that day comes, the concern over AI adjudication is irrelevant. Yet it is this very apathy of today that might bring about the AI adjudication of the proverbial tomorrow. And such a view is not only dangerous, but destructive.

As technology develops, and judges begin to feel threatened by an unbiased, objective ‘AI judge’, they might preemptively shift their thinking to favour strict adherence to the letter of the law. The pressure for an unbiased court system in the future might in turn warp the human thinking of the present. As US Supreme Court Chief Justice Roberts said, “My worry is not that machines will start thinking like us. I worry that we will start thinking like machines.”

Endnotes

[1] Noel Hillman, ‘The Use of Artificial Intelligence in Gauging the Risk of Recidivism’, (January 2 2019) American Bar Association 3.

[2] Charlotte Graham-McLay, ‘New Zealand claims world first in setting standards for government use of algorithms’, The Guardian Australia (online, 28 July 2020) 2 <https://www.theguardian.com/world/2020/jul/28/new-zealand-claims-world-first-in-setting-standards-for-government-use-of-algorithms>.

[3] James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

[4] Michael Kirby, ‘The Rule of Law Beyond the Law of Rules’ (2010) Australian Bar Review.

[5] International Bar Association, ‘Rule of Law – A Commentary on the IBA Council’s Resolution of September 2005’ (Commentary, July 2009) 6.

[6] Maurice Byers, ‘From the Other Side of the Bar Table: An Advocate's View of the Judiciary’ (1987) 10 University of New South Wales Law Journal 179, 182.

[7] Elias v The Queen 248 CLR 483, 494 [27].

[8] James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

[9] Ibid.

[10] Mabo v Queensland (No 2) (1992) 175 CLR 1.

[11] Brown v. Board of Education (1954) 347 U.S. 483.

[12] R v R [1991] UKHL 12, deemed marital rape a crime.

[13] Benjamin Cardozo, ‘The Nature of Judicial Process’ (Yale University Press, 1921) at 104-105

[14] Rachel Dioso-Villa, ‘A Repository of Wrongful Convictions in Australia: First Step Towards Estimating Prevalence and Contributing Factors’ (2015) 17 Flinders Law Journal 163.

[15] Calla Wahlquist, Lawyer X: how Victoria police got it 'profoundly wrong' with informant Nicola (5 Sep 2020) < https://www.theguardian.com/australia-news/2020/sep/05/lawyer-x-how-victoria-police-got-it-profoundly-wrong-with-informant-nicola-gobbo >.

[16] Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review 493.

[17] Fiona McLeod, 160,000 people turned away: How the justice system is failing vulnerable Australians (3 Aug 2017) < https://www.abc.net.au/news/2017-08-03/how-the-justice-system-is-failling-vulnerable-australians/8770292 >.

[18] Ibid.

[19] Richard M. Re & Alicia Solow-Niederman, ‘Developing Artificially Intelligent Justice’ (Research Paper No 242, Stanford Technology Law Review, 2019)

[20] Daniel Chen, Tobias J Moskowitz and Kelly Shue, ‘Decision-Making under the Gambler's Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires’ (Working Paper No. 22026, The National Bureau of Economic Research, February 2016) 6.

[21] Angela Chen, ‘How artificial intelligence can help us make judges less biased’, (January 17 2019) The Verge 5

[22]  James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

Trial and Error: The Case on Virtual Courts

By Charis Chiu, Yijun Cui and Rachel Wang

INTRODUCTION

Given that justice delayed is justice denied, many jurisdictions have turned to virtual courts as a response to the COVID-19 pandemic. The ‘conceptual idea of a judicial forum that has no physical presence but still provides the same justice services available in courtrooms...assessed online through videoconferencing and teleconferencing’[1] was forced into realisation. In particular, a contested issue is that of virtual cross-examination, with courts having to balance the need to facilitate a just resolution of disputes as quickly, inexpensively, and efficiently as possible[2] with considerations of fairness in the use of a virtual (and the only viable) solution.[3] Moreover, remote cross-examination may potentially shift the perspective towards the cross-examination of vulnerable witnesses such as children and victims of sexual assault. Critically engaging with COVID-era cases, this blog will explore the present challenges and opportunities surrounding virtual courts as well as its enduring implications on the legal sphere.

CROSS-EXAMINATION

Central to the common law adversarial system of trial[4] and ‘basic to any notion of a fair trial’ is the right to cross-examine a witness.[5] A primary concern is that the use of virtual courts renders cross-examination less effective given the loss of the physicality of the traditional courtroom and the reduced ability to assess witness demeanour in a nuanced manner.[6] As Spender J held in Campaign Master (UK) Ltd v Forty Two International Pty Ltd, the requirement to give evidence in the solemn atmosphere of a courtroom in the presence of a judge and a cross-examining counsel “enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion”,[7] whilst providing the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness. Whilst the English position found in McGlinn v Waltham Contractors Ltd and others held that video link poses ‘no real prejudice to the defendants... [even when the defendant’s] credibility was directly in issue,’ the Australian position had historically been more guarded. The trend of authority appears to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.[8] How have Courts reconciled this position with the demands necessitated by the pandemic?

The first question which arises is the role that demeanor plays in the modern context. The inability to assess witness demeanour is no longer considered a factor that disadvantages appellate judges against trial judges.[9] Rather, it is increasingly recognised that drawing conclusions from a witness’s demeanour is unreliable and dangerous.[10] However, Sackar J concedes in David Quince v Annabelle Quince and Anor that ‘where there is not an abundance of corroborative or other material, demeanour, rightly or wrongly, may well play a very significant part in the determination… on a Briginshaw or s 140 [of the Evidence Act 1995 (Cth)] basis.’ Examining section 5B(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘Evidence Act’) which prevents the Court from ordering evidence to be taken in a particular way if the direction is ‘unfair to any party to the proceeding,’ Sackar J held it was antithetical to the administration of justice for evidence to be taken remotely, without the plaintiff given a full opportunity to cross-examine the defendant in a conventional setting.

Given the context of the COVID-19 pandemic, section 5B(3) of the Evidence Act which requires that Courts not permit evidence by audio visual link unless ‘it is in the interests of the administration of justice’ takes on another meaning.[11] When does postponing a trial pose greater impacts on the administration of justice than potentially unsatisfactory virtual trials? Although rejecting the submission that s 5B of the Evidence Act should not have its usual operation during the pandemic, Sackar J acknowledged that there will be a substantial number of cases where video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis. Remote cross-examination was, for instance, not a significant concern for Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) (‘Capic’) pointing out that the particular class action on allegedly defective gear boxes was ‘not a fraud trial’ and therefore the issue of coaching a witness is insignificant. The Court concluded that under ordinary circumstances, he would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. However, these are not ordinary circumstances. In Capic, the Court’s emphasis that postponing a trial could result in further loss or costs, inconsistent with the overarching principles of just and quick resolution of matters, suggests that the Court is willing to embrace virtual courts and deal with difficulties as they arise.

Fortunately, the present climate has led to the widespread use and enhancement of platforms such as Microsoft Teams and Zoom, facilitating more clear and effective audio-visual witness examinations than historically. As Perram J commented in Capic, the close proximity of video means his perception of the witness’ facial expressions via a virtual platform is much greater. However, the increased impact of facial characteristics on virtual proceedings could introduce issues of whether they can adversely influence the evaluation of evidence and the sentence of defendants.[12] Operating video-conferencing software, moreover, may require barristers to adapt their methods of cross-examination in terms of physical presence, volume and body language.[13] For example, instead of getting louder, which may appear petulant over video, appropriate voice modulation can be used to convey confidence to the witness and prolong their attention in long remote hearings. Although pacing around the podium may not be possible, varying physical proximity to the camera can be used for emphasis.[14] Lawyers should especially hone into inputs such as voice, by considering whether the witness hesitates before answering or if the voice becomes more high-pitched.[15] Whilst barristers do not have to sacrifice non-verbal methods, they must adapt their methods of witness cross-examination within a remote setting.

POLICY CHANGES

The vulnerable witness provisions under pt IAD of the Crimes Act 1914 (Cth)[16] currently limits the right to confrontation in regards to child witnesses and sexual assault victims. An example can be found in prohibiting the cross-examination of vulnerable persons by unrepresented defendants in pt IAD division 3. In fact, proposals have been made to extend such laws to the Family Law Act 1975 (Cth) (‘FLA’)[17] in protecting victims of family and domestic violence from being subject to cross-examination by self-represented perpetrators and to provide assistance with the self-representing victim’s cross-examination of the perpetrator. Currently, the FLA does not provide protection against direct cross-examination by perpetrators. Cross-examination by an alleged abuser can impose significant impacts on complainants, who may choose to settle their matters on suboptimal terms to avoid being cross-examined or having to cross-examine a violent ex-partner. This experience may lead to re-traumatisation, which can compromise the quality of evidence provided to the court, thereby undermining its ability to make safe and effective orders.[18] These protection provisions are particularly essential within the context of videoconferencing, where the ‘one-on-one’ nature of the virtual cross-examination may appear more intimidating and threatening to less experienced witnesses. Virtual cross-examination may also provide further protection for vulnerable witnesses, in preventing lawyers from intimidating the witness using physical proximity or indulging in unprofessional and unproductive styles of cross-examination.[19]

The trial of virtual courts necessitated during the COVID-19 pandemic ought to catalyse the need for long-term change. In particular, the protection of vulnerable witnesses should be extended. Whilst NSW and the majority of other Australian states and territories currently grants children who are victims of sexual assault prior to the trial the ability to pre-record evidence prior to trial,[20] the implementation of the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) (NSW) extends the categories of witnesses who are permitted to do this.[21] This legislative change therefore affords a greater degree of protection for children who have been subject to sexual assault and directly reduces the trauma and abuse they would otherwise be required to endure in a physical court setting.[22] Parliament could extend such legislative changes to cover adult victims of sexual assault, and do so permanently.[23] In the Northern Territory, The Northern Territory Evidence and Other Legislation Bill 2019 (NT) (‘Northern Territory Evidence Bill’)[24] strengthened the protections for vulnerable witnesses in sexual and domestic violence proceedings, clarifying the general power of courts to order the use of video conferencing and creating a statutory presumption that evidence from vulnerable witnesses is to be given via video conferencing.[25] As articulated in its Explanatory Memoranda, the Northern Territory Evidence Bill thus ‘introduces a new model of cross-examination of vulnerable witnesses by unrepresented defendants.’[26] Similar legislation ought to be adopted in New South Wales to uphold the highest standards of protection for vulnerable witnesses. The insight into the functionality of virtual trials offered during COVID-19 and the Court’s greater willingness to facilitate remote cross-examination could therefore generate a nationwide shift towards presuming that evidence from vulnerable witnesses is to be given virtually.

CONCLUSION

Virtual courts reshape the manner in which those within the Court must conduct themselves, presenting both challenges and opportunities for the legal profession. In present times of crisis, it has increased the efficacy with which justice is administered. Looking forward, the use of virtual courts calls for long-term legislative change to maximise the application of this legal innovation to best assist the legal sphere and vulnerable witnesses.

Endnotes

[1] Keith Kaplan, ‘Will Virtual Courts Create Courthouse Relics?’, (2013), 52(2), The Judges’ Journal, 32.

[2] Federal Court of Australia Act 1976 (Cth) s 37M(1).

[3] Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 [6].

[4] Lee v The Queen (1998) 195 CLR 594 [32].

[5] R v Hughes [1986] 2 NZLR 129 [149]

[6] Vincent Denault and Miles Patterson, ‘Justice and Nonverbal Communication in a Post-pandemic World: An Evidence-Based Commentary and Cautionary Statement for Lawyers and Judges (2020) Journal of Nonverbal Behavior DOI: 10.1007/s10919-020-00339-x (‘Justice and Nonverbal Communication in a Post-pandemic World’); See R. v. NS [2012] 3 SCR 726 743-744: ‘Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth’.

[7] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) [2009] FCA 1306 [78] (‘Campaign Master’)  

[8] See Campaign Masters (n 7) [78]. Buchanon J held that ‘Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.’ See also Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 [1]-[3] (Palmer J).

[9] SS (Sri Lanka) v. SSHD [2018] EWCA Civ 1391 [33]-[43].

[10] Ibid.

[11] Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B(3).

[12] Justice and Nonverbal Communication in a Post-pandemic World (n 6).

[13] Emma Rowden and Anne Wallace, ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2019) 28(5) Social & Legal Studies, 698–718.

[14] Odom, J., Zimmerman, L. and Larkin, M., 2020. Tips For Effective Witness Cross-Examination In Remote Trials. [online] Selendy & Gay. Available at: <https://www.selendygay.com/news/publications/2020-08-13-tips-for-effective-witness-cross-examination-in-remote-trials> [Accessed 16 September 2020].

[15] Ibid.

[16] Crimes Act 1914 (Cth) pt IAD.   

[17] Family Law Act 1975.

[18] Janet Loughman, ‘In focus: Protecting vulnerable witnesses in family law’ (2016) (February) Law Society of NSW Journal 26.

[19] Anne Maree Wallace, ‘Justice and the ‘Virtual’ Expert: Using Remote Witness Technology To Take Scientific Evidence’ (PhD Thesis, University of Sydney, 2011).

[20] COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) s 356.

[21] Ibid.  

[22] Meg Garvin, Alison Wilkinson and Sarah LeClair, ‘Allowing Adult Sexual Assault Victims to Testify at

Trial via Live Video Technology’, Legal Publications Project of the National Crime Victim Law Institute at Lewis & Clark Law School, 1.

[23] Samantha O'Donnell ‘Pre-Recorded Evidence In Australia In An Era Of COVID-19’ Oxford Human Rights Hub (Web Page, 14 April 2020), <https://ohrh.law.ox.ac.uk/pre-recorded-evidence-in-australia-in-an-era-of-covid-19/>.

[24] Northern Territory Evidence and Other Legislation Bill 2019 (NT).

[25] Explanatory Memorandum, Northern Territory Evidence and Other Legislation Bill 2019 (Cth) 1.

[26] Ibid [3].

Blockchain in the legal industry

By Alice (Fei) Chen, Zun Hu and Keyu Shi

Introduction

Before we look into the blockchain, we may first look at a beautiful Micronesian island named Yap. The currency on the island is stone money, which is a large doughnut-shaped stone weighing up to four tons. So how do they use it in trade? The Yapese people innovatively developed their monetary system that, without the physical transfer of such stones, they record each transaction throughout the tribe in their distributed ledger. Each family holds its own ledger and the majority of the ledgers validate a transaction.[1] It might sound a bit primitive, but in reality, it builds up a very trustworthy and verifiable system.  A single person could not change or tamper the record because it exists not only between two parties but among everyone.

And this is precisely how blockchain works, building a tech-based Yapese village. One salient feature of blockchain is its immutability. Once created, it couldn’t be changed. The other feature is cryptography, with the private key controlling specific account and the public key as sending address to validate a specific transaction, it secures the communication.[2]

Application in Legal World

The smart contract

Blockchain can fundamentally change the process and mode of P2P transactions, and one application is “smart contracts”. The concept of “smart contract” is broader than a traditional “contract” or “legal contract”.  It is a written program akin to a contract, and once the precondition is met, it will automatically be enforced.[3] Despite the inherited benefit of immutability, another advantage of a smart contract is its automatic execution.

A typical and canonical real-life example of such would be a vending machine. The transaction rules and prices are preset, and only when you insert enough coins (digital asset) could you get the product or service. If you insert too much, it will eject and return the change. If the machine runs out of products, you can get your money back. It is an automatic system that offers service 24/7, and individuals could transact in a free and simultaneous way.

Such a streamline process could avoid intermediary services, such as brokers, lawyers, and bankers. It can save great time processing with these paperworks, save relevant service expenses. And more importantly, avoid manual mistakes or possible bias in the process.

On the other hand, some legal practitioners express their concerns that smart contracts might lead to certain unconformity with the contract law, especially the format requirement and illegality.[4] However, history repeats itself. The same concern was also raised thirty years ago at the introduction of e-commerce and the internet. And as we see, the online regulation and registration system secure online transactions in a safe and rapid way. Moreover, the legislature and courts are gradually recognizing the existence of the electronic contract. So before quickly jumping into a pessimistic conclusion, as lawyers, we may take it as a chance that international transactions would be significantly boosted, and we should find our position in the system. Unlike a middleman, we may play a role more like a surveillant, helping our clients oversee the automatic process and avoid possible risks.

Transfer of Rights

As the discussion above, blockchain can be used as the transaction platform of digital assets (i.e., bitcoin). Furthermore, its immutable and efficiency features allow transactions of more intangible assets to be recorded in the ledgers. Those intangible assets include the rights of real estate and intellectual property. In those sections, records reflect the rights of ownership, and also obligations.

Traditionally, the land registry requires a government department to verify and process the transfer of the entitlement. Certain disputes may arise under this model, like double spending, fake records and difficulty in identifying the genuine owners.[5] Land or real estate is different from ‘manufactured products’ in which a root title may be sourced to the point of manufacture. The origins of the title may have been lost in the mists of time.[6] Although some initiatives based on ICT technologies have been employed in registry systems,[7] most of them still require a central institution to mutually record and control the transactions. Massive data are generated daily and higher demands of efficiency and security are made.

Blockchain technology can be introduced in those areas to solve the above-mentioned problems. In a blockchain-based land registry system, each item contains buyers and sellers, time of transaction, type of rights transferred, etc. They will be recorded in ledgers when transactions are made in an immutable way entrenched by cryptography. It would allow certified users to check the status of certain property. When a new record is inputted, it will be reviewed by each node. Double spending or fraud would no longer be possible. In recent years, more and more states are in the race for blockchain. The republic of Georgia has established a complete blockchain registry system, Japan, United States, Netherlands and many other countries also set up relevant projects. NSW LRS is supported by ChromaWay, aiming to “position New South Wales property market as a model of transparency and efficiency”.[8]

As to intellectual property (“IP”), blockchain with AI (Artificial Intelligence) will change the IP industry, especially for those small-scale startups. It is hard for startups to protect their intellectual property due to excessive costs. The function of blockchain to the IP industry is similar to land registry as mentioned above. The low cost in blockchain is quite friendly to small-scale companies. With the help of AI, it will allow the system to identify possible IP infringements. [9] For example, AI could easily identify the similarity among different designs.

Others

Blockchain not only raised forensic disputes to be settled in Courts, but also helps boost the efficiency of legal system. Evidence storage and sharing require efficiency and security, which correspond with the characters of blockchain. Sometimes, “trolley load litigation”[10] imposes great pressure on lawyers, unless lawyers disobey their duties. For example, Dubai International Financial Centre (DIFC) Courts already launched the first court of blockchain, which solves the disputes of blockchain and also use blockchain as a tool to “streamline the judicial process”.[11]

Current trend and possible challenges

Law firms, consulting firms, institutions and organizations are all developing their services with blockchain, which includes smart contracts, cryptocurrencies, fin-tech, logistics, real estate, data security, etc. Specifically, law firms, such as Lander & Rogers, Herbert Smith Freehills, and Bird & Bird already provided legal advice on blockchain businesses.

With the broad application of blockchain, there could be challenges and risks. First, there is a challenge to identify the users' identity as no personal information is stored in the centralized server. There could be millions of users within the blockchain. And some participants may not want to disclose their data. For instance, some companies may assert that their internal data is confidential. It will subsequently lead to loose information, which makes blockchain not much different from other data storage channels.

Second, there could be problems with Cyber Currencies, which is the foundation of blockchain. How should we define and distinguish between virtual properties and traditional properties. And if the cybercurrency is widely adopted, under which jurisdiction should tax be charged, who should be charged, and how to calculate?

Blockchain itself also can be hashed and one well-known method is the “51% rule”. Where hackers, or a company, controls 51% of one blockchain network, then there is a possibility to create fraudulence. Moreover, each node in the blockchain needs hardware to download and yield data, but as blockchain increasingly enlarges, the capacity of storage and speed of yield could be a real challenge. Besides, what technical standard should we adopt to transform data between different systems, software, and platforms to ensure the certainty and accuracy of displaying the data?

Conclusion

Admittedly, there are challenges and obstacles we have to face in the road of adopting the blockchain. But the advantages will far exceed the disadvantages. It will redefine the legal industry substantially and procedurally. As lawyers, we need to adapt to the changes and find our positions, because the changes are happening and they are going to happen anyway.

Endnotes

[1] Reade Ryan; Mayme Donohue, ‘Securities on Blockchain’ (2017) 73(1) Business Lawyer, 108.

[2] Ibid.

[3] ZibinZheng; ShaoanXie, ‘An overview on smart contracts: Challenges, advances and platforms’ (2020) 105 Future Generation Computer Systems, 475-91.

[4] Michael Bacina, ‘When two worlds collide: smart contracts and the Australian legal system’ (2018) 21 Journal of Internet Law, 16.

[5] Shuaib, Mohammed et al. “Blockchain-Based Framework for Secure and Reliable Land Registry System.” (2020) TELKOMNIKA 18.5, 2562.

[6] Thomas, Rod. “Blockchain’s Incompatibility for Use as a Land Registry: Issues of Definition, Feasibility and Risk.” (2017) European Property Law Journal 6.3, 376.

[7] i.e. NSW Land Registry Services (NSW LRS), eConveyancing in NSW (07 May 2020) < https://www.nswlrs.com.au/eConveyancing>.

[8] NSW Office of Registrar General, Response to Discussion Paper Removing Barriers to Electronic Land Contracts, Comments Submitted by ChromaWay Australia (2018), 2-3.

[9] Gürkaynak, Gönenç et al. “Intellectual Property Law and Practice in the Blockchain Realm.” The computer law and security report 34.4 (2018): 847–862. 855. In this article, the writer discussed the CAD files in IP registry.

[10] M Kumar et al. Civil Procedure in New South Wales (Thomson Reuters, 4ed, 2021), 658.

[11] Dubai International Financial Centre, DIFC Courts and Smart Dubai launch joint taskforce for world’s first Court of the Blockchain (30 July 2018) < https://www.difc.ae/newsroom/news/difc-courts-and-smart-dubai-launch-joint-taskforce-worlds-first-court-blockchain/>

The Immediate Future of AI in Law: An Overview of Natural Language Processing Algorithms

By Barry Wang, Daniel Lee Aniceto and Jacky Zeng

Natural Language Processing (NLP) is a subfield of artificial intelligence and linguistics concerned with the interaction between algorithms and human language. The role and characteristics of language fundamentally underpin the legal profession. Any algorithm capable of understanding, manipulating, and expressing language will have wide-ranging impacts for the legal profession. We will survey the developments of NLP, then analyse the short and long term implications for the legal profession.

What is Natural language processing?

To better appreciate the implications of NLP it is helpful to draw a distinction between code-driven and data-driven algorithms.[1] Code-driven algorithms use a form of decisional logic that is predictable and operates on a set of preprogramed rules often in an "if this then that" format. Whereas data-driven algorithms make dynamic inferences and models by identifying complex patterns in data and creating their own rules and logic which are often too complex and numerous to pre-programme.[2] NLP falls into the latter category and essentially uses training data to develop complex models of language, and its capabilities have steadily developed over the past two decades. 

Two decades ago, NLP was only capable of rudimentary language processing tasks and would not be described as intelligent or creative in any sense. The capabilities of these early models included splitting a continuous line of text to words, removing inflectional endings to words to get the base word, and identifying nouns, verbs, and phrases within a sentence.

A decade ago, the capabilities of language models improved exponentially in parallel with increases in compute power and availability of data. New and improved language models started incorporating lexical semantics, the ability to understand words in its context. This resulted in the development of capabilities such as Name Entity Recognition which allows the model to identify places, people, and categories, and sentiment analysis which can identify the emotions of a piece of text. Language models employing these capabilities are proven to be accurate and still widely used commercially today. 

Fast forward to the present, NLP models should legitimately be described as intelligent and creative, and are capable of completing high-level language tasks at a human level. The capabilities exhibited by NLP models includes summarisation of text, creating credible news articles and creative writing, reading comprehension, and answering general questions on any subject matter. A method used to measure and track a NLP model’s understanding of language is to complete a specifically designed reading comprehension test. Under the widely used SQuAD test database, modern NLP models have already surpassed human reading comprehension abilities.[3]

In 10 years time, it is likely that these NLP models and their capabilities will become widely used commercially. The legal profession undoubtedly will be impacted by these NLP models that are able to summarise cases, answer broad legal questions, and generate legal arguments. We will explore these short and long term implications to the legal profession.

Current use of NLP 

The ever-increasing volume of documents involved in transactions calls for smarter systems to manage documents during the discovery process in litigation. The most common use for NLP models in the legal profession at the moment is in document review and management.

A variety of companies, such as Legartis, offer AI assisted programs that help sift through contracts by identifying relevant, irrelevant and problematic clauses. Currently, the capabilities of NLP models still require the involvement of a human legal professional to be effective. In the case of document review, all documents believed to be relevant are uploaded to the AI powered-tool. Currently the tools are not sophisticated and are unable to categorise and review the documents without any context or examples. Therefore, a sample dataset of documents are required from the legal professional operating the software who then identifies what terms are to be considered relevant. From the training dataset the NLP model is then able to know what to look out for in the documents and sift through millions of documents to then flag only those relevant to the matter. 

This process has already been incredibly effective in reducing delays and other inefficiencies in the workflow of various firms and has received judicial approval such as from Vickery J in the case of McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 1).

NLP in the short term

Large law firms that already harness these technologies in their workflows are beginning to build in-house incubators to help further develop the capabilities of NLP models, like Allen & Overy's Fuse program which helps explore, develop and test legal-tech products. The current technology will be able to confidently handle predictable and standard decision-making such as Neota Logica, deployed by King & Wood Mallesons, which is able to determine whether a specific deal requires approval from the Foreign Investment Review Board.

However, in the short term NLP and its use in the field have not reached commercial viability for many high-complexity language tasks. The main hurdle preventing AI technologies from achieving full autonomy in high-complexity tasks such as legal writing is the amount of understanding necessary and its ability to learn on its own through training data.[4] The requirements for a successful piece of legal writing are also more vague than deciding whether documents fit certain criteria to be considered 'relevant' or 'requiring approval from a body'. Indeed, a recent National Taiwanese University study attempted to fine tune OpenAI’s Generation Pre-Trained Transformer 2 (GTP-2) algorithm – a language prediction algorithm impressively capable of coherent text generation – to generate patent claims.[5] Although the outcome was mixed, the researchers concluded that the reasonable levels of success they achieved was promising given that these models of NLPs are still considered to be in the early stage of development in the Deep Learning field.

The future

In 2020, OpenAI released GTP-3 which has over 100 times more parameters than GTP-2 and is far and away the most powerful NLP transformer released to date.[6] GTP-3 could certainly provide the leap in complexity required to automate legal writing and it would be unsurprising to see successful research models surface in the immediate future.

Further advances in NLP, such as deep reinforcement learning algorithms have combined the process of synthesizing language with aim of optimized strategies for achieving goals. The algorithm will generate texts until it reaches an optimal score based on a pre-inputted metric. In other words, the automation of legal writing is merely a matter of defining the metrics of ‘good’ legal writing.

Implications

It is clear that the developments in NLP algorithms enable the increasing automation of the legal industry. The next domino to fall will be the process of legal writing which encompasses the drafting of emails, advices, court documents, subpoenas and case notes which is currently performed by clerks and junior lawyers alike. Certainly, like self-checkout machines to cashiers, the role of law clerks and junior lawyers who are currently employed to do highly repetitive task of drafting and reviewing will be swiftly replaced by algorithms which are more efficient and accurate.

This trend is likely to impact the larger legal firms of corporate law where a team of clerks and paralegals may be replaced with a single clerk overseeing and operating numerous legal software tools. As a result, we are likely to see the next generation of lawyers become proficient software users which may lead to a hierarchical reduction to the structures of these multi-tiered law firms.

Nevertheless, the legal practice is significantly more complex than mere legal writing with legal reasoning, both judicial and in-practice, carrying an intrinsically human factor. There is sufficient discussion that this human nature of law acts as a limiting factor on the future implications of AI and automation. There is after all, no ‘perfect’ legal argument, rather a viewpoint which prevails in the current context of legislation and precedent which is ever evolving. As Allsop CJ wrote:

Law, being society’s relational rules and principles that govern and control all exercises of power, must have a character and form that is adapted to, and suited for, application to law’s human task.[7]

This has been echoed in the recent US Court of Appeals for the Second Circuit case of Lola v. Skadden[8] where the Court held that document reviews done by a NLP software was practicing law as the algorithm “exercised no legal judgement whatsoever”.

As such, the role of solicitors and barristers in society is likely to remain. Indeed, some commentators have argued that future of AI and legal labour will be complementary; with algorithms as tools which free the lawyer from tedious task and enable them to pursue services which progress the legal market and society at large.[9]

Endnotes

[1] Hildebrandt, M. (2020). Code Driven Law. Scaling the Past and Freezing the Future. Scaling the Past and Freezing the Future (January 19, 2020).

[2] Ibid.

[3] Rajpurkar, Pranav, Robin Jia, and Percy Liang. "Know what you don't know: Unanswerable questions for SQuAD." arXiv preprint arXiv:1806.03822 (2018).

[4] Haney, Brian, Applied Natural Language Processing for Law Practice (October 27, 2019). Brian S. Haney, Applied Natural Language Processing for Law Practice, 2020 B.C. Intell. Prop. & Tech. F. (2020). , Available at SSRN: https://ssrn.com/abstract=3476351 or http://dx.doi.org/10.2139/ssrn.3476351

[5] Jieh-Sheng Lee and Jieh Hsiang “Patent Claim Generation by Fine-Tuning OpenAI GPT-2”Department of Computer Science and Information Engineering National Taiwan University

[6] https://openai.com/blog/openai-api/

[7] Chief Justice James Allsop, ‘The Rule of Law is Not a Law of Rules’ (Speech, Annual Quayside Oration, 1 November 2018)

[8] Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, No. 13-cv-5008 (RJS), 2014 WL 4626228, at *1–2 (S.D.N.Y. Sept. 16, 2014

[9] Ibid n4.

A New (Virtual) Reality for the Courtroom

By Isabella Meltzer, Kathy Zhang and Julia Lim

The visage of Lady Justice guards the entrances of countless courtrooms around the world. But what if we were to replace Lady Justice’s blindfold with a virtual reality headset?

The legal system strives to uphold the core principles of the rule of law, procedural fairness and the presumption of innocence – all of which heavily rely upon the fair administration of justice by judges and juries in the courtroom. However, as the recent Black Lives Matter and Aboriginal Deaths in Custody protests have highlighted, prejudice against minorities has prevented these principles from being adhered to in legal systems around the world. 

The impact of bias in courtrooms

The automatic, subconscious associations which judges and juries bring into the courtroom in particular pose a real danger to these fundamental principles. In Australia, the overrepresentation of incarcerated Aboriginal and Torres Strait Islander people points to the biases of the fact-finders who placed them there. In addition to its contemporary relevance, bias in the courtroom impacts the entirety of the legal profession. Barristers must account for the concerning possibility that their clients may not be judged on the true merits of their case. While the Australian judiciary has made some attempts to mitigate bias in the courtroom, exemplified in the High Court upholding of the apprehension of bias rule, prejudice undoubtedly remains prominent in the everyday administration of justice. 

As scholar Natalie Salmanowitz observed in 2018, defendants of colour are considered guilty more often than their white counterparts. Studies have shown that implicit bias particularly comes into play in cases where race is not a salient issue and merely involves parties of different races. In these cases, jurors’ judgements tend to be skewed against black defendants, whereas in cases that are racially charged, jurors’ judgments tend to be unaffected by race. Thus, when race is introduced in a subtle manner, people are less vigilant in monitoring potential prejudices. 

Bias in courtrooms also have long lasting, detrimental impacts in perpetuating cycles of disadvantage. Those who are disadvantaged before the jury are more likely to go to prison than those of more advantaged backgrounds committing the same offence, as those of the latter category have the means for better legal and financial support. According to Fitzgerald in 2009, there has been a 48% increase in the number of incarcerated Indigenous Australians over the last 10 years, the reason being the severity of treatment by the criminal justice system. In a 2017 submission about the incarceration rates of Indigenous Australians, the NSW Bar Association found that the issue was most prominent in incarceration and sentencing decisions. Indeed, Aboriginal people are refused bail more often than non-Indigenous Australians, receive prison sentences more often and are being sentenced for longer. 

How can justice be served equally and impartially when the inherent biases of the judiciary start to tip the scales? In today’s modern world, where technology is increasingly ever-present, perhaps our solution lies through technological innovations.

A potential solution: virtual reality

Virtual reality (VR) poses a potential solution in effectively mitigating bias in courtrooms. By wearing a VR headset for a period of time as short as five minutes, the user can enter a virtual world where they embody an avatar from another racial group. The user can truly feel like they are in another body as the participant’s actual limbs, tracked and synchronised with the simulation, move in tandem with the avatar’s limbs. VR technology has also progressed beyond being purely a visual experience – VR can now also include tactile stimulation which is applied to the user’s body in sync with the simulation. Combined, these factors generate the body ownership illusion, a psychological effect where someone perceives to own a part of a body or an entire body that is not their own. Effectively, such an immersive experience blurs the distinction between the ‘self’ and the ‘other’, which in turn can lessen the potency of the negative associations we subconsciously attribute to other racial groups.

In a 2013 investigation conducted by Peck et al, researchers randomly assigned participants to one of three avatars - light-skinned, dark-skinned, and purple-skinned. They found that the experience of virtually embodying an avatar with darker skin led to a statistically significant decrease in Implicit Association Test (IAT) scores – a key measure of implicit attitudes and beliefs in decision-making, which indicated that implicit biases played a lesser role in influencing the subject’s attitudes towards members of different races. In contrast, the IAT values of subjects who entered a light-skinned or purple-skinned avatar showed little change.

This same theory was applied years later in 2018 by Natalie Salmanowitz, specifically to the context of jury decision-making. Before and after experiencing the VR immersion experience, participants were asked to evaluate ambiguous evidence in hypothetical legal cases in addition to taking the IAT test. Here, researchers not only also saw a decrease in IAT scores, but participants also evaluated ambiguous evidence more critically and tended to judge evidence as being less indicative of guilt.

Although Salmanowitz’s research seems to positively affirm the effectiveness of VR immersion experiences in reducing implicit biases, it must be noted that her research was conducted in mock trial scenarios with mock legal decisions. These scenarios involved dichotomous verdicts – guilty or not guilty – which may be incapable of capturing the intricacies of a juror’s decision-making process. By recognising the constrained perspective of Salmanowitz’s research, it may be questioned whether or not these experiments can actually model and analyse complex implicit racial biases in courtrooms. However, as legal decisions are difficult or near impossible to simulate, whether or not the impact of VR has been exaggerated through inaccurate experiment design and modelling is an issue that can only be resolved when VR is applied to an actual courtroom. 

Furthermore, VR’s success in lowering IAT scores is a testament to its fundamental ability to reduce implicit racial biases. The success of utilising VR experiences in other fields, such as improving emotion recognition by domestic violence offenders and increasing empathetic sentiments towards the homeless, shows the adaptability of VR technology in a range of different scenarios. Thus, even though this technology is yet to be applied in an actual courtroom, its performance in other experiments is promising, as it shows that VR can be easily improved and tailored to new roles.

Would the legal profession be accepting of VR technology? 

If VR experiences were to be incorporated into NSW court processes, the legal profession’s response to implementation would need to be considered before doing so. In his 1998 speech, Justice Kirby attributed historical resistance towards new technologies to the “psychological barrier which must be breached to raise awareness of judges and lawyers of the technological engines of change”.

However, Justice Kirby also noted at the time that the High Court of Australia had stood “foremost in its embrace” of new technologies, such as the use of audio-visual links for special leave hearings from 1987. Thus, the Judiciary embraced the integration of law and technology as far back as over thirty years ago. Chief Justice Allsop recently noted in a 2019 lecture at the University of Queensland that it is indeed the courts’ responsibility as “core public institutions…to take a leading role in the responsible implementation of technology in the law and in legal practice”, and it has therefore most likely been instrumental in the Australian legal system’s transition towards technological change that the nation’s highest court has been amenable to innovation.

It has indeed become evident in recent years that the drive to integrate technology into existing processes has grown within all tiers of the Australian legal system. For example, within NSW, the impetus has been embodied by the development of committees which aim to advise legal practitioners and facilitate the exploration of new legal technologies, such as the Law Society of NSW’s Legal Technology Committee and the Innovation & Technology Committee within the NSW Bar Association. Therefore, the facilitation of further integration of law and technology appears promising. 

In an increasingly technological world and amidst exponential public concern over bias hindering the fair administration of justice, VR poses a real, tangible solution in placing judges and juries in the position of the defendant. Allowing them to truly ‘walk a mile in another’s shoes may bring the Australian legal system one step closer to true impartiality in law.

Law Student Excellence: Lessons From A Leading Law Innovator

By Cameron Jordan (JD I)

Every year, thousands of students across Australia enter their first ever law lecture feeling a mix of excitement and nervousness. Some feel it is the long-awaited beginning of their journey to becoming Australia’s next leading barrister, while others view it as just another boring day at university. One thing that is common among most students, however, is a desire to have a unique impact on the world, and to be more than just an average student.

Someone that has certainly  exemplified what it means to be more than just a law student is Milan Gandhi. Milan is the Founder and National Director of The Legal Forecast, a not-for-profit run by early-career professionals who are entrepreneurially-minded and promote the importance of technology for effective legal practice. Milan also graduated with First Class Honours in law and won the Australian Law Student of the Year award where he received a perfect score from every judge. 

Beginning with music video directing in Brisbane and the Gold Coast, Milan had a desire for more intellectual exploration, and found it in the law, following the footsteps of his grandfather who practised in East Africa. This has led him on adventures ranging from studying space law in Vienna to assisting to design and organise 54-hour ‘legal hackathon’ Disrupting Law. Milan worked for McCullough Robertson Lawyers for six and a half years, firstly as a clerk, and then as a lawyer in the firm’s construction litigation team. Milan was also the firm’s first innovation ambassador and continues to aid the firm in relation to one of its innovation programs called ‘McR Changemakers’.  

Milan recently moved outside of private practice to take a unique opportunity with DMTC (formerly the ‘Defence Materials Technology Centre’) where Milan’s dual-role is focused on innovation and business strategy, and on aspects of in-house legal work. DMTC collaborates with defence industry participants and research institutions to deliver innovation that enhances Australia’s defence and national security capabilities.

Excelling as a law student

Everyone has their own constantly evolving definitions of excellence and success, but there is general advice that everyone can take on board. Milan suggests that you should begin by saying yes to as many opportunities as you can:

“It’s important to get varied and practical experiences outside of the classroom. You shouldn’t rely on law school to define what opportunities and pathways are available to you… attend professional events and become curious about the sector you are entering.  As for obtaining those interesting opportunities – it’s a numbers game.  Apply, apply, apply! You need to overcome the self-doubt and hit submit on that application. It may be a cliché, but it’s true that you miss every shot you don’t take!”

He also stresses the importance of a positive attitude, and notes the benefits of developing traits such as patience, humility, curiosity, and proactiveness:

“The most successful people I know strive for excellence and maintain a good attitude in everything they do, especially the boring parts of the job. This approach will take you far as a newbie in the legal profession (or any profession/industry).  The successful people I’ve observed also have a willingness to ask the stupid questions and to lean on the dictionary whenever they come across something they don’t understand – it’s better to ask and look stupid now, then to pretend you know and face a systemic deficiency in your knowledge later…”

Searching for opportunities, and having a solid attitude is only the start, as Milan reminds students to ensure they do not ignore the development of fundamental legal skills:

“I’m all about cultivating business savvy, EQ, and leadership skills, and I sincerely believe in (and know) the power of strong networks and professional relationships.  However, none of this can come at the expense of your fundamental technical skills – you must work at and take pride in these as “Step 1”. Law students must leave law school with confident writing and legal research skills. That is the foundation of how you will make an impression and provide value on a day to day level during your initial work experience opportunities and onwards. Go to and take an interest in any and every L&D session your legal library puts on while at law school!”

Managing time and staying motivated

Many students may struggle with time management due to the demands of law. They may also find it hard to stay motivated as they get deeper into their degree. It might be when they are up late studying, their friends are all out socialising, or when the lecturer’s attempt to explain a particularly dry concept is putting them to sleep. This can be compounded by that feeling that everyone around you has things under control, despite this not really being true. 

Milan suggests that the first thing to understand is that everyone fails at time management at some stage, and that everybody has different responsibilities. He shares some practical tips:

“I definitely did and continue to struggle with this one.  A solid to-do list never goes astray, and I’ve found some assistance from software tools that are at everyone’s disposal like Trello, Evernote and Wunderlist (although I think Wunderlist is going to be replaced by something else soon).  There’s a lot of great resources out there that can assist you with time management and organisation… but any of my friends/family reading this will know that balance is not necessarily my strong suit!  It’s a work in progress, and I know some are struggling with much greater challenges and life commitments than others, which is why there is not a one-size-fits-all lesson on how to manage time.”

Learn about the power of prioritisation, figure out how you can apply the 80/20 rule in your life, and always be looking for ways to reduce ‘time leaks’ such as aimless social media scrolling. Over time, you will become a time management master, and you will be rewarded with more time for leisure.

It is also extremely beneficial to find what inspires you, and to surround yourself with great people. You can use this as fuel to stay motivated, which will ensure you remain productive. Milan says:

“Inspiration is important and often triggers the best and biggest career (and, for that matter, life) adventures – these days I take a lot of inspiration from the people around me, and from opportunities to think creatively (where they may arise). I am also in the privileged position to be able to reflect on past successes and recall the feeling of seeing vision, hard work, and commitment pay off for myself and for my team -  the “cat is out of the bag” in that I know what is possible with the right attitude, the right values, and a willingness to do the hard yards.  A healthy dose of fear and duty is also a great source of motivation (although perhaps not inspiration) – I do fear becoming complacent/losing the momentum I have built in my career to date, and I feel I owe it to myself and the generous mentors who have opened doors for and supported me (including, first and foremost, my parents) to continue to strive for positive change, professionally and otherwise.” 

The future of legal practice in Australia

Understanding where the law is heading in the future is also vital for all law students, particularly after the outbreak of COVID-19. Having a firm grasp of technology and innovation will ensure you are able to better handle unforeseeable events should they arise, and will allow you to have more of an impact in whatever field you are in.

“My theory (and it is only a theory) is that there is a dual thing that is happening… people are right in thinking that COVID has caused digital adoption and accelerated flexible working practices, but there is the deeper and somewhat contradictory issue of law firms entering survival mode and (understandably) losing their appetite for discretionary spending and investment in R&D focused on the long-term future. I’m not an accountant so take what I say with a healthy pinch of salt, but a lot of law firms operate on a “cash lean” model and are relatively low on long-term cash reserves. COVID may have revealed some of the existential issues for law firms that operate this way, but has also shone a light on the difficulty, within the typical/traditional law firm structure, of making big strategic plays for the future and having the cash on hand to do so. .”

What now?

While at law school, there are two things you need to do. The first is mastering the law, and the second is mastering law school itself. Commit yourself to always be innovative in your studies, always be searching for ways to be more productive, and always be asking yourself why you decided to study law in the first place. 

It is true that success leaves clues, so look for clues that individuals such as Milan Gandhi leave behind, and use them to help you become the best law student you can be. Good luck.

Milan Gandhi can be contacted via LinkedIn: https://www.linkedin.com/in/gandhimilan/. 

The Legal Forecast can be found here: https://www.thelegalforecast.com.

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.

The Posse Comitatus Act: its Reconstruction Era Roots and Link to Modern Racism

By Axel Melkonian (BA/LLB II)

“…If the city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

- Donald Trump, 1 June 2020.

President Trump standing before St John’s Church Parish House, Washington DC, after his 1st of June White House Address regarding the George Floyd Riots.

It was difficult to ignore the controversy this statement stirred within the legal community two months ago. In his first White House address regarding the George Floyd Riots, the President threatened to invoke the powers provided in 10 U.S.C. § 251-255 ‘Insurrection Act’. This allows a President to deploy the US Military or federalised National Guard into states where insurrection has threatened constitutionally protected rights or legal order. While the debate was focused on whether the Insurrection Act could be used against the riots, little attention was given to another law which limits the President’s ability to domestically deploy the military for law enforcement. This article will provide an overview of this relatively obscure statute – the 18 U.S.C. § 1385 ‘Posse Comitatus Act’ – and expose the racial motivations behind its introduction following the American Civil War. Ultimately, this article will demonstrate how an understanding of the Posse Comitatus Act’s history can shed light on the causal link between the failure of military Reconstruction (1863-1877), and African-American discrimination in modern America.

What is a “Posse Comitatus”?

The phrase posse comitatus is Latin for “power of the county”. Beginning from the 11th Century, the term was used in English Common Law to describe powers allowing authorities (such as a sheriff) to mobilise civilians against domestic disturbances. This legal principle was maintained in American law following the Revolution to maintain civic order in places with inadequate policing forces. 

Initially, the posse comitatus principle extended to the use of soldiers; however, following the English Civil War and the passing of the 1688 Bill of Rights, the Parliament restricted civil law enforcement to civilian authorities and this limitation carried through into American Law. Regardless, English and American law enforcement authorities were able to circumvent this restriction through the Mansfield Doctrine; as long as the soldiers were deployed under the guise that they were acting as citizens preserving their legal and constitutional rights, the military could still be used as a posse comitatus. As this legal fiction was used to deploy Federal troops within the previously Confederate States, the phrase was adopted in the Act that sought to criminalise this use of the military. 

The racial roots of the Act

There is a strong link between modern African-American discrimination and the Posse Comitatus Act. Not only did the Act virtually end the Reconstruction era, but it promoted Jim Crow Laws while foreclosing the progression towards racial tolerance the 13th, 14th and 15th Amendments encouraged within the Southern States.  

During the Reconstruction Era, the federal government sought to re-integrate the former Confederate States with the rest of the Union; in response to this attempt, two conflicting approaches, the white supremacist and emancipist doctrines, emerged. The former aimed to maintain racial segregation and was encouraged by President Johnson and the Southern-aligned Democratic Party. Conversely, the latter was supported by the Northern-favoured Republican Party and sought to accomplish Lincoln’s vision of full freedoms, suffrage and constitutional equality for African-Americans. 

The first barrier to the Republicans was President Johnson’s opposition to emancipation legislation due to his Southern sympathies. It was only until the overwhelming Republican victory in the 1866 Congressional Elections before the House could override his Presidential veto and pass the Civil Rights Act of 1866, which would guarantee the citizenship rights of former slaves. The second barrier was Southern resistance to Black suffrage. Starting from the First Reconstruction Act of 1867, a temporary army of occupation was imposed within the Confederacy to ensure that Southerners would comply with federal election laws. The presence of Federal troops became a source of humiliation to Southerners, and it was only exacerbated by the fact that many of these soldiers were African-Americans. Unfortunately, as most of the army had been sent west against the Native Americans, the occupying army could never amount to more than a few thousand men. Such a small force was in the awkward position of being unable to effectively enforce emancipation policies, while also being a continual source of aggravation in the South. 

Tensions reached a climax during the 1876 Federal Election. To ensure that racist groups such as the Ku Klux Klan would not intimidate Republican voters, Federal troops were stationed throughout polling places in the South. In the closest election in history, the Southern-favoured Democrat Samuel Tilden lost to Republican candidate Rutherford Hayes by a single electoral college vote. The presence of federal troops during the election made many Southerners see the military supervision as a tyrannical use of force by Republicans to remain in power. The continual escalation of tensions between the soldiers and Southerners led to the Compromise of 1877, wherein the newly-elected Hayes was forced to withdraw the army from the South. Not satisfied with this withdrawal, in 1878 the Democrats introduced the Posse Comitatus Act. 

While the Democrats controlled the House following the 1874 midterm election, the Republicans still held a majority within the Senate. Surprisingly, many Republicans were sympathetic to the Act. When introducing the bill, Representative William Kimmel of Maryland skilfully depicted it as another example of Americans rejecting the influences of totalitarianism. He aligned his position with the Founding Fathers’ fears of a standing army and its ability to enforce martial law by drawing reference to Washington’s use of a civilian militia instead of the Army to quell the 1794 Whisky Rebellion, which was applauded by the Congress. Kimmel convinced many Republicans that this evidenced a history of the federal government disapproving the use of the military for civilian law enforcement. The Act stipulated that the use of the military as a posse comitatus was criminalised unless expressly authorised by an Act of Congress or the Constitution. The use of the military to combat civil insurrection under the 1807 Insurrection Act was included as a statutory exception. President Hayes, convinced that the 13th, 14th and 15th Amendments would ensure black suffrage in the South, signed the Posse Comitatus Act into ratification in June 1878. 

The unintended consequences of the Act

Unfortunately, President Hayes was very much misguided in his belief that the South would autonomously comply with emancipist policies without military enforcement. During the Reconstruction, the Southern African-American population experienced a short-lived resurgence in literacy and political representation. In 1870, 15% of all Southern elected officials were Black. In part due to the Posse Comitatus Act, this number would not be surpassed for over a century. The absence of federal troops allowed racist organisations like the Ku Klux Klan – heavily suppressed by soldiers under the 1871 Ku Klux Klan Act – to flourish and escalate violence against Blacks. While on paper Southerners complied with the Constitutional Amendments that supported black freedoms, Jim Crow laws would soon be introduced to diminish the civil liberties gained by African-Americans during Reconstruction. 

One of the clearest indicators that the Act hampered emancipation was the decisive role the military played during the court-ordered desegregation of Little Rock Central High School in 1957. Following the ruling in the US Supreme Court case of Brown v Board of Education, 347 US 483 (1954), that racially segregated schools were unconstitutional, a group of nine African-American students were prevented from entering Little Rock by Orval Faubus, the Governor of Arkansas. By framing this as an insurrection, President Eisenhower was able to use the Insurrection Act to circumvent the Posse Comitatus Act and deploy the 101st Airborne. The “Little Rock Nine” would become a landmark moment in the movement towards the eventual abolition of Jim Crow Laws in 1965. Had the Posse Comitatus Act not been introduced, the use of the military to combat unconstitutional segregation laws could have occurred much earlier than the mid 20th century. Unfortunately, the long period in which these laws existed consolidated the racist undertones in the South that have continued into the present.

Concluding remarks

It is impossible to understand the controversy surrounding President Trump’s threatened use of the Insurrection Act without first being aware that it is an exception to the Posse Comitatus Act. Ironically, considering its racist origins, the Posse Comitatus Act functions as a crucial piece of legislation preventing Trump’s use of federal armed forces against the George Floyd Riots.

#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.

Footnotes - COVID-19 and the Law

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 explore how COVID-19 has impacted our lives and catalysed changes to the legal profession.

Law profession

The unprecedented circumstances of COVID-19 have not only raised a number of substantial legal questions, but it's also made a significant impact on the legal industry. What do you think about that?

Courts have always been a place of theatrical tradition, so to move things online has been quite revolutionary. Technology is taking on a really important role with the New South Wales Supreme Court and the Federal Court creating a virtual courtroom through a combination of phone conferencing, WhatsApp and Microsoft Teams. Some people have been hopeful that the impact of COVID-19 is actually driven innovation in what has always been a fairly archaic court process.

On the flip side, there are the problems that we might be seeing as we're adopting technology in the long run. I think there's a lot of significance in everyone coming together face-to-face in one room to resolve conflicts. By relying on technology, we miss that. It might also overlook issues of access to the proper technology and infrastructure: if you're in a remote community or don't have stable access to fast or reliable Internet, it's going to be a real issue of procedural fairness. 

Either way, do you think these new practises and methods will be here to stay or is it temporary?

I think it's good to know that we can trust the technology to work. Plan A is still to have everyone come together but worst-case scenario we have a Plan B that we like, at least for civil proceedings. I think it's going to get a bit more complicated in terms of criminal trials and getting together a jury. Any new jury trials were actually suspended because of COVID but the ones that are still have had to deal with a lot of issues as well. 

Around the country, the courts have been given greater discretion to order judge alone trials to limit contact and reduce the risk of infection. In most jurisdictions, the accused has to consent to the judge-alone trial. However, the ACT equivalent actually allowed judges to order these trials, whether the accused consented or not. That has led to a wide range of concerns, especially from the Law Council of Australia, since the right to a jury trial is actually one of Australia’s few expressed constitutional rights at the federal level. Removing a jury takes away the role of the community in the justice system, which is especially important in a criminal trial. Some have argued that this reduces accountability in the legal system as a whole.

Listen to this episode from Footnotes (by the Sydney University Law Society) on Spotify. What will a career in law look like post-pandemic, and has the student experience been irrevocably altered? Are the current social distancing laws fit for purpose, or an over step and an erosion of our civil liberties?

You did not get the clerkship: What else can you do this holiday?

By Joseph Black (JDII)

The desire to be selected for a clerkship seems to be shared ubiquitously among law students and aspiring lawyers in Australia. At the same time, because so many people end up applying for clerkships, not all applicants, including excellent applicants, can be accepted. This can create quite a bit of heartbreak and sorrow.

Let us state a hypothetical: you are an excellent student who was not accepted for a clerkship. What do you do during your holiday instead?

Below are some ideas I have come up with. I do not speak as a coach, expert, or adviser but merely as a fellow law student, who has considered a variety of possibilities.

Learn a new language

One idea is to learn a new language. Our law school hosts an incredible number of students from around the world. By learning one of their languages, maybe you can learn to better converse with them, or at least in a new way, during and after the pandemic. Perhaps this could help you land a job in Australia or abroad in future. By learning a new language, maybe you can develop new ways of perceiving life. 

If you spend several hours each week learning a new language, I believe it is quite possible you could be semi-fluent by the end of the break. If you spend several hours each day, perhaps you will be a multilinguist in a few months.

Write for a publication

Another idea is to write for the Law School paper. At Sydney Law School, you have a myriad of options: Citations, Yemaya, Dissent, MOSAIC, Law in Society. The University of Sydney also has Honi Soit, and, I assume, many other papers as well. Through writing, you may develop your voice, which could help you continue to write fantastic essays later in your law degree, and foster a brand for yourself, which could help you advance in your future lawyering career. Maybe you can write an article assessing recent law reform in a particular area of law. Maybe you can write an article focusing on native title.

Study abroad*

Given the current pandemic and travel ban in Australia, study abroad is probably best for students already overseas or who can easily and responsibly travel overseas. Universities abroad often have winter schools, summers schools, summer institutes, and short non-degree programs in a variety of subjects throughout the year. 

You could study a field of law you cannot study at Sydney Law School, expand your network of lawyers and aspiring lawyers (internationally), connect with professors at other schools who can connect you to future jobs, and study material which you can later use in Sydney Law School assessments. A quick Google search can help you find a variety of options available. European University Institute in Italy offers a myriad of short programs throughout the year.

Volunteer at legal centres in your community

Volunteering at legal centres can truly be insightful. You can: see how solicitors work, interact with authentic clients in real life, help make significant and positive impacts on others’ lives, and see if a certain field of law really is for you. In my opinion, volunteering at legal centres is vital to building the community – and, as aspiring lawyers, that is a noble thing to do. Maybe you can volunteer at Marrickville Legal Centre. Maybe you can (remotely) volunteer with the Earth Law Center in the United States. A quick Google search shows a variety of options are available.

Volunteer at charities (not specifically law-related)

Like volunteering at legal centres, volunteering at charities can truly be insightful. You can: have the opportunity to help those who are extremely in need, have exposure to things you would not have had exposure to otherwise, practice another language, and make a real impact in the world. There are so many charities to choose from. Some places you could volunteer at, in Sydney, include Salvation Army, Vinnies, Twenty10, and ACON. Once again, Google can be helpful.

Do a law internship

If your heart is set on the clerkship, maybe look at doing a law internship instead. Through a law internship, you can still have the opportunity to engage with legal issues, make contacts in the legal universe, whet your legal mind, and perhaps help yourself land a job in the legal universe post-degree.

Sydney Law School offers internships at its different institutes: The Centre for Asian and Pacific Law, Sydney Institute of Criminology, Sydney Centre for International Law, and many others. A quick Google search can maybe help you find law internships at other places in your area as well.

Of course, this is not an exhaustive list of ideas, but just a sample. Now, try this. Grab a pad, pen, and trace a circle in the middle of a page. In the middle of the circle, put YOUR NAME and WINTER 2020. Around YOUR NAME, list a variety of things you could do. What do you think you could do, which could help propel you towards a career in criminal law? Take an online criminal law class, focusing on criminal law in America, through FutureLearn or Coursera? Do something quite novel, and take an online class on Pashtunwali? Do not let those clerkship rejection letters get in your way. The world is your oyster.

* For study abroad during the pandemic, I would probably carefully consider pros and cons and specific legal issues regarding going out or coming back to Australia or another country, with someone appropriate to consult. For study abroad, perhaps a virtual study abroad is possible?

130 years of Sydney Law School

By Coco Chen (BA/LLB II) and Jingyi Li (BCom/LLB I)

For every law student, we pride ourselves for being a part of Sydney Law School, from the high ATAR cut-off that creates so much tension on USyd Rants, to the sleek, modern, glass architecture of New Law and New Law Annex making landmarks on Eastern Avenue, to the vibrant SULS and the supportive teaching staff, no matter how much we complain about law school, we really love being a part of it. 

As Dean and Head Simon Bronitt reminded us in his weekly newsletter, 2020 marks the 130-year anniversary for Sydney Law School. And what better time than now, a strange point in time that will most definitely be recorded in history, for us to look back into the past of Sydney Law School. 

From Faculty of Law to Sydney Law School 

The degree in law was established by the 1850 Act to Incorporate and Endow the University of Sydney, in Clause 11: 

whereas it is expedient to extend the benefits of colleges and educational establishments...for the promotion of literature science and art…, Be it enacted That all persons shall be admitted as candidates for the respective degrees of Bachelor of Arts, Master of Arts, Bachelor of Laws or Doctor of Laws…

Standing alongside Arts and Medicine, the Law degree holds the longest history in Australia’s oldest university. For a lengthy period of that time, an Arts degree was a prerequisite for a Law or Medicine degree, which acted more like qualifications for exam results rather than certificates of completed courses.

Even though the Faculty of Law came into existence in 1855, it did not function as a teaching facility until the appointment of the first Chair of Law and first Dean Pitt Cobbett in 1890, the year marked by Dean Simon Bronitt as the inaugural year of operation.

From St. James Campus to New Law Building

Current undergraduate law students may not have memories of the main building prior to the construction of New Law Building, since the magnificent structure has been located on Camperdown Campus for over a decade. Before 2009, law school students attended St. James Campus bounded by Phillip, King and Elizabeth Streets. The 16-level building with a 4-storey library was situated right by the Supreme Court and Barrister’s Chambers. To quote Professor Gillian Triggs, Dean of Law School from 2007 to 2012, ‘it is not-uncommon a sight to see High Court and Federal Court judges duck through the traffic to the law school after court sessions have concluded for the day, to give lectures and attend seminars’. 

The highlight of the old law school is undoubtedly its close proximity to the heart of the legal practice, but it also created a problem in its distance from the main campus. Prior to the Law School’s move to St James Campus in 1969, students and staff had been bouncing all around CBD, including some floors in the Wentworth Court, a spot on Phillip Street, the now Selbourne Chamber, a floor in Martin Place, Wigram Chambers back on Philip Street and Barristers Court. Yet at the same time, the Law school had seen an increase of full-time enrolments and a need to find a permanent location back on Camperdown Campus. In 1957, as Sir Keith Murray led an inquiry on Australian Universities, the then-Vice Chancellor took the opportunity to propose constructing a new law building. Looking 52 years into the future, the proposal will eventually be fulfilled by Francis-Jones Moreton Thorp’s design which manifests itself as the current New Law Building and Annex. 

When the construction was complete in 2009, the excitement towards moving into such a modern architecture was recorded in the architect’s publication, ‘In the Realm of Learning: The University of Sydney's New Law School’. Amongst the most mentioned locations were the moot court and the library with special mention to the installation of technologies to record lectures. Reading the words of those who were witnessing the equally amazing exterior and interior of the new law school for the first time, reminded me of the opportunities I have had the opportunity to get up on level three of New Law Building, either handing in assessments or getting lost in the law building in the early weeks of first year when I was supposed to be in the annex. Whenever I go up there, I always take the chance to gaze at Victoria Park and the skyline in the distance and think to myself, this would be the view it takes to overcome any challenge. 

During its 130 years of operation, Sydney Law School witnessed history running its course and never stopped shaping brilliant minds who have their hearts set on bettering other people’s lives and advancing the society we are all a part of. Indeed, Dean Simon Bronnitt reminds us that “global wars, depressions, pandemics… have never daunted the spirit of this place, its people and programs”. Many of us can say for sure that this is the strangest semester we have ever had, but the support from our cohorts has been tremendously supportive and heart-warming. I suppose, when we graduate from Sydney Law School, we will look back at the past five years and think to ourselves: it was the best of times.

Bibliography

1. Act to Incorporate and endow the University of Sydney: http://www.austlii.edu.au/au/legis/nsw/num_act/sua1850n31286.pdf

2. The Law School Shift

   https://www.sydney.edu.au/content/dam/corporate/documents/sydney-law-school/about/The_Law_School_Shift.pdf

3. History https://www.sydney.edu.au/law/about/history.html

Humanitarian intervention - a necessary evil?

By Ibrahim Taha (BA/LLB III)

More than 200 years after Immanuel Kant called for the protection of human rights under international law, the United Nations adopted a Charter unprecedented in human history, determined to save successive generations from the scourge of war. However, since its founding in 1945, the world has been plagued by war. The twentieth century saw two World Wars, a Cold War, and the mass extermination of six million Jews. If there was a chronicle on world history, the twentieth century would be its darkest chapter. From Syria, the worst humanitarian crisis since World War II, to Yemen, home to more than 12 million children on the brink of starvation, recent world events have reignited the hotly contested debate on humanitarian intervention.

Development of humanitarian intervention

Humanitarian intervention is defined as military force in a state, without the approval of its authorities, to alleviate human suffering and prevent gross violations of human rights. Throughout history, intervention on humanitarian grounds was supported by a moral, ethical and philosophical framework, rooted in natural law. Christian theologian Thomas Aquinas expanded Saint Augustine’s idea of universal moral norms to develop natural law; a system of moral duties discoverable through reason and binding on all subjects simply by their being human. Drawing upon the biblical injunction, ‘Thou shalt not stand idly by the blood of thy neighbour’, Aquinas formulated the just war theory, an ethical framework that justified armed force to punish violations of natural law. The modern practice of humanitarian intervention stems from the just war tradition which was widely accepted until the profound shift toward legal positivism.

While legal positivism proliferated during the ‘Age of Reason’ in the eighteenth century, its origins in international law date back to 1648 when a new political order was formed based on territorial sovereignty. The Treaty of Westphalia laid the intellectual foundations of international law through the recognition of politically independent, sovereign states subject to no higher authority. This enabled the development of a separate regime of rules and principles to govern relations between states, distinct from natural law. As the nation-state emerged, the naturalist tradition was succeeded by a positivist approach that derived international law from science, not morality; consent, not reason. Therefore, state sovereignty runs contrary to any form of intervention that would undermine the political independence of states.

The contemporary debate on humanitarian intervention - whether the inviolability of states overrides protection of individual rights - reflects the longstanding tension between positive and natural law. This inherent ambiguity was built into the UN Charter, which on one hand obligates states to refrain from any use of force in Article 2(4), while also proclaiming the inalienable rights of people in the Universal Declaration of Human Rights. International law post-World War II has given primacy to the rule of non-intervention above the cosmopolitan ideal of universal moral principles that deserve protection.

Is humanitarian intervention legal?

Opponents of humanitarian intervention rest their case on positive law, the plain language of the UN Charter which fundamentally prohibits any use of force and threat of its use by states, regardless of the motive behind the action. This was affirmed in the Israeli Entebbe Incident in 1976, whereby Israel’s operation in Uganda to save hostages violated Ugandan sovereignty. Opponents argue that personal morality is not attributable to states whose right to independence includes the concomitant right to freely govern themselves, even where governments violate the rights of their subjects. Legal positivism maintains the primacy of state sovereignty with no exception, as supported by a plain reading of the UN Charter.

Proponents of humanitarian intervention reject the positivist presumption in favour of sovereignty over inalienable rights, as ethically and legally untenable. They recognise the right of states to use force to uphold the common good of humanity as pursuant to the purpose of the UN Charter which drew heavily from natural law. Drawing on the dynamic relationship between international law and state practice, proponents suggest the emergence of a customary right to intervention. Examples such as Kosovo 1999, Libya 2011, Iraq 2014, and the UN’s adoption of Responsibility to Protect in 2005 evince a pattern of conduct by the international community that signals progressive development toward humanitarianism.  

Both approaches to humanitarian intervention reflect deep differences in international law that are difficult to reconcile. While a plain reading of the Charter renders humanitarian intervention unlawful, emerging state practice suggests growing support for the doctrine. Since international law can be read to support either position, its legality rests upon the strategic manipulation of states and their contingent theory of how international law operates in the world. While the inherent ambiguity of the law presents an impasse for states, perhaps the path of reconcilability lies in the recognition that even though intervention on humanitarian grounds is unlawful in black-letter law, it can be legitimate.

Legitimacy of humanitarian intervention

Although international law relies upon state consent, separating morality from law or framing humanitarian intervention in only explicitly legal terms, denies the moral conscience of humankind. The UN Genocide Convention in 1948 was a milestone development in international law, that coalesced the ethical considerations of natural law with the logic of positive law, to create reciprocal responsibilities of all humanity to protect the sanctity of life. This presents an opportunity for reconciling the legal ambiguity surrounding humanitarian intervention. While there are concerns for risks of its abuse by powerful states in pursuit of ulterior objectives, unalloyed rejection of the doctrine is ethically untenable. Although NATO’s bombings in Kosovo in 1999 to rescue 12,000 Albanians was legally dubious, the multilateral coordination of 13 NATO states bolstered its legitimacy. It is important not to deny that in accepting the imperative to intervene, undesirable results are a tragic reality. The Iraq War is estimated to have caused over 100,000 civilian casualties, and is widely considered the worst foreign policy blunder in US history. The wider conflagration of the Iraq War highlights the need for the international community to uphold and enforce multilateral mechanisms of decision-making. The architects of the Iraq War sidelined key processes of collective deliberation and multilateralism that confers necessary legitimacy on the decision to intervene.

The debate on humanitarian intervention is not a choice between the greater good and lesser evil; it is a necessarily tragic undertaking in pursuit of the common good, with full knowledge that the international community will always fall short. As American theologian Reinhold Niebuhr opined, ‘tragedy is linked to a recognition of our own finitude’. In the process of rectifying the most dire human circumstances, perfectibility is quixotic and dangerous. Acknowledgement of human imperfections does not exonerate abuse by powerful states, nor does it condone the imperialistic motives of a single state. Rather, it serves as a reminder that human ineptitude and limited resources should not bar states from upholding the noble responsibility shared by the international community - the compelling necessity to prevent the mass slaughter of innocent human beings.

Humanitarian intervention will continue to be debated and the contention surrounding its legality are almost as irreconcilable as the inherent tensions in international law. So long as the international community maintains a moral conscience, intervention will have a place at international law. The artificial construct of state sovereignty is no longer a shield to the mass slaughter of human beings.

Gilbert + Tobin: Legal Innovation, Clerkships and the Future

Footnotes is a podcast by SULS hosted by students, for students, presenting new and intriguing stories about the law. Here are the highlights from their most recent interview with Gilbert + Tobin, featuring Kristie Barton (Clerk and Graduate Program Manager), Bryce Craig (Lawyer - Technology + Digital) and Lauren Ziegelaar (Legal Transformation Lawyer) about clerkships and graduate roles, how the delivery of legal services has changed in the face of new and innovative legal technologies, and the skills young lawyers need to equip themselves for the legal industry of the future.

Do you have any tips or tricks for clerkship applications and interviews having gone through the process yourself and, Kristie, been on the other side of that? What advice would you give?

BC: I think it's very important to show your interest in the firm you're applying for, as well as a willingness to learn and contribute to growth. A keen clerk is the best clerk.

LZ: I totally agree. Do your research around the firm you're applying and have a genuine interest in the firm and the work that you're doing; but also have genuine interests outside of that. Don't be afraid to talk about the fact that you love running marathons or horse riding. You want to use your judgment about when to raise those things, but don't feel like you have to be this cookie-cutter person who doesn’t love anything but the law. 

KB: In terms of applications, tailor your application to the film that you're applying for. Try to find exactly what it is about each firm that really resonates with you or excites you and put it in the application. You’ll definitely get further in the process. 

The clerkship process is, obviously, very competitive. What advice would you have for people who may be unsuccessful this year?

KB: Clerkship may be the most linear pathway into a graduate program, but it's definitely not the be-all and end-all. The recruitment process offers such a unique opportunity for students to connect with firms and start building their networks by identifying people that they would like to have as mentors or contacts down the track. That is hugely invaluable. 

What do you see as being the role of technology and innovation in the delivery of legal services, drawing on your own experiences?

LZ: Great question! I was really lucky to work with the legal services innovation team as a graduate. The biggest learning point for me was that technology isn’t going to replace people; it just augments the way we deliver our legal services. I think what we’re going to see is more and more law firms and legal practice groups operating on the model, where it’s not a pure labour market but a labour plus capital market. 

At the moment, we just charge for our time and add disbursements such as court fees or other fees but we’re going to see the way we price and charge our work change. We are moving towards a market where law firms are providing legal advice but also tools, technologies and platforms that can be licensed out to clients. We are moving towards a model where the time of the lawyers is just one element of the services that the firm offers.

BC: Lawyers have always occupied a number of roles for their clients. They are expected to be commercially-minded and risk-averse and think about the ‘people’ element of how a decision is going to impact the client. Now, we're also expected to have competency with technology and data and applying that to matters. All the large matters I've worked on this year have some elements of data management and technology along with digital teamwork help bring clarity to those matters. That's just one example of how technology is becoming another part of the multipronged role we are expected to fill for our clients. 

KB: We need people now that are adaptable and open to new technologies and solutions and have a level of technological literacy. We certainly get some queries about how technologies like artificial intelligence are having an impact. I think lawyers are definitely not going away anytime soon, but we are upskilling our lawyers on qualities such as project management, data analytics and design thinking. We talk about this ‘T-shaped lawyer’ where traditional legal knowledge and skills are in the middle and non-legal skills are becoming increasingly important.

BC: The T-shaped Model is saying that you need to have some level of insight into many roles, but you don't have to be an expert. You don’t need to know how to code, for example, but you need to know how to talk to someone with those skills and to bridge that gap. Often the role that I see myself and other lawyers occupy is one of the conduits between those with very deep skills, and the request of the client.

LZ: There's also another model called the Delta Model. It has three sections: the process, the practice, and the people. The depth of your skills in those areas changes depending on what role you occupy. Your legal knowledge still forms the absolute foundation, but the additional skills you need evolve quickly. I think you guys are probably in the best position for it as early career professionals because you're incredibly adaptive and fast learners. I don't think it's something you need to be worried about as long as you're open to it.

Do you think COVID is going to be the tipping point for the law in the way that it approaches technological innovation? Now that we've gotten familiar with doing things digitally, do you think that this something that we are going to see in the future of law?

LZ: I think there are some elements that will change a lot but other elements are uncertain. Producing change in a law firm model has its own unique challenges. The things that speed up those processes are client-driven forces, internal forces such as staff and employees, and also external forces, such as a global pandemic. I think it will produce change, but it just depends on what areas will see that lasting change. 

BC: I think one of the impacts brought about just by changing economic and financial circumstances will be that a lot more clients will be even more cost-conscious. I think it's going to bring newfound relevance to teams, like Lauren's, that routinely deal with how to optimize the delivery of legal services.

How do you think your experience with innovation has helped complement other aspects of your work as a lawyer?

LZ: Having exposure to so many parts of the firm made me a better lawyer in my role in the corporate team because I really understood how the firm works from a business perspective. As soon as you understand the business side of the firm, it makes sense as to why things are done a certain way, and you can find opportunities to solve inefficiencies. 

If you want more insight from Kristie, Bryce and Lauren on the impacts of technology and innovation, have a listen to the full episode of ‘In Conversation with Gilbert + Tobin - Legal Innovation, Clerkships & the Future’ on your favourite podcast platform. 

Listen to this episode from Footnotes (by the Sydney University Law Society) on Spotify. Considering a career in commercial law? Keep hearing buzzwords like "legal tech" or "legal innovation" but not sure what they mean?

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. 

Social Justice: Working in Criminal Law

The SULS Social Justice Portfolio recently hosted the event ‘Working in Criminal Law’, discussing a variety of issues with professionals from the field of criminal law. The panel consisted of Ruth Heazlewood (RH) and Madeleine Avenell (MA) from the Public Defenders Office, Adrienne Ey (AE) and James Ly (JL) from the Office of the Director of Public Prosecutions NSW and Justin Wong (JW) from Streeton Lawyers. These were the highlights of the discussion:

Why did you choose in the organisation you currently work with? What attracted you to criminal law in particular?

JL: When I was at University, I worked at a small general firm and the exposure I had to criminal law was the most interesting part of the job. When I graduated, I applied for ODPP’s graduate program, the Legal Development Program and I've been here ever since then. The main thing that attracted me to criminal law is that it’s really interesting and different every day. 

AE: I got a position in the LDP when I first finished university. By that time, I already knew I was really interested in criminal law with how it sits alongside social justice issues. Part of the reason I was attracted to working at the ODPP, in particular, was that I wanted to work somewhere where I had access to a mentor and colleagues while getting good legal experience. 

JW: I was a volunteer at the Aboriginal Legal Service in my final two years of university and I tried to do as much criminal law electives as I could. I think what attracted me initially was probably a combination of wanting to help people, finding the stories really interesting and trying to make a difference. Most people I know in criminal law really enjoy what they do, as difficult as it can be sometimes.

MA: I have to admit when I got to the end of University, I didn't know what I was going to do. I got a job as a tipstaff in the Supreme Court and the judge I worked for only did criminal work. I thoroughly enjoyed it and it completely changed my attitude to law, particularly crime. 

RH: I’d always been attracted to criminal law, even as a student. In all my many years of practice, I still find criminal law the most interesting. If you find criminal law or criminal law finds you, then you’ve definitely got a strong sense of purpose.

What are the most rewarding and challenging parts of working in criminal law and, in particular, your organisation?

JW: I think the most rewarding thing is seeing the effect you could have on someone's lives when they're coming to you at, probably, the worst point in their life. The flip side of that is that there is so much responsibility on you. Litigation is always very uncertain and can be incredibly stressful and emotionally taxing at times. But overall, it's much more rewarding and it's a real privilege to be able to act for people.

RH: I think the challenges for any criminal lawyer is to behave ethically. Not in my case, but I have heard that sometimes students are put in ethical situations that are a bit dicey.

A lot is said about being a certain kind of person to work in criminal law. What traits or personalities do you think it takes to work and thrive in criminal law?

JL: I would say, passion and interest in criminal law.

JW: I’d agree with that. There are so many different personalities in our area, so you don't have to be a ‘particular type’ of person.

Some of you mentioned the Legal Development Programme (LDP) along with volunteering and criminal law electives. What do you guys think is the way into criminal law?

AE: There are a number of different ways to find the right role for you in criminal law. Justin mentioned he volunteered at the Aboriginal Legal Service which is one of the big criminal organisations in New South Wales that does take volunteers and PLT students. The same goes for Legal Aid. If you've done extracurricular activities or competitions at uni, I would recommend highlighting things like that. You really just need to be proactive and be willing to do a few different things. 

MA: My suggestion is doing anything that allows you to get to know a few people in criminal law. There are barristers who employ students as researchers or admin assistants and it’s a path to just get to know people.

RH: Public Defenders has so many students come through in various pathways: sometimes through the more structured internship programs but also through PLT while others come as volunteers. My main requirement is that they be in their fourth or fifth years because the work we do can be quite challenging. We also have an Aboriginal and Torres-Strait Islander graduate program, where we take on Aboriginal graduates to do their PLT. It's one way we can assist disadvantaged students in getting the support and mentorship that they need. 

With the current social restriction laws, courts and tribunal have had to change the way they operate across Australia. How have your operations been affected by the recent pandemic and will there be any long-lasting impacts in the future?

JW: Like every aspect of society, the impact is huge. I haven't done a huge amount of online court appearances myself, but it really does affect your ability to be able to stand and advocate in court. We’re used to having the ability to be able to pick up on small verbal cues and I found it very hard to get my point across in the same way through a screen. 

JL: In terms of practice moving forward, I think the pandemic has caused the court to look at how they do administrative things, forcing it to become more efficient. 

Our final question is how students can bridge the skill set gap. Are there any particular skills or aspects that you would encourage someone to have?

JL: Just speaking from the graduate program at the ODPP, we don’t expect you to be an excellent advocate when you come in. That's the whole purpose of the graduate program. I wouldn't be too concerned about bridging that gap now.

JW: There’s a huge difference between learning law and then applying it to a client. I think as a paralegal, observing how lawyers operate is a really great experience. The last three graduate solicitors we've had have all been paralegals while in university, so they're able to learn the skills early and hit the ground running.

Law School Basics Panel: Online Exams

This is a complete transcript of the SULS panel discussion for online exams held in Semester 1, 2020. The panel was moderated by Natalie Leung (Vice President (Education) 2020) and consisted of Professor Rita Shackel, Dr Kevin Walton, Professor Peter Gerangelos and Dr Gemma Turton.

Questions (click on the links to jump to each section):

• What should I do to prepare for an open book exam?

• Do you have any advice on turning the lecture or tutorial notes into appropriate exam notes?

• How is preparing for an online exam different to preparing for an in-person exam?

• How do you think the reading time should be used in an online exam/open book exam?

• If I am going over the word count of an online exam, what should I do? Should I keep writing and cut later or stop and start cutting?

• Are students expected to include a record of the work count, or can the work count be viewed by examiners without students stating it?

• If we are running out of time in the exam, should we be covering every issue briefly, or a couple in more detail?

• How can I get into a mindset that is similar to being in an exam room? It’s often very easy to get distracted at home.

• Do you have any tips on typing exams? I often feel more fluent when writing with pen and paper.

• What is the significance of the extra time that has been provided in assessments? Assuming that we don't have any internet issues or uploading and downloading issues, how should we be using this extra time?

• In relation to online exams, what would be the impact of referencing on plagiarism? What style of referencing are examiners expecting?

• Is it recommended to print out the questions?

• Would the expected standard of answers for a two-hour exam be different to that of a two-day exam?

• Do you have any tips you would recommend for students to make the best use of past papers when they're unable to obtain feedback for their responses?

What should I do to prepare for an open book exam? 

GT: My advice for an open book exam is to largely treat it like you would a close book exam. You aren't going to have time to be making an enormous amount of reference to your materials, and you certainly don't want to be looking at any of the topics or any of the statutes for the first time in the exam. Even though it's an open book exam, you should be as prepared as you would be if it was a closed book exam, and think of your materials as a support, rather than the primary resource that you're going to use.

RS: I agree entirely. I think one of the key messages for this semester with the online exams, is to be organized. Students will need to be really mindful of time management, given the fact that there are word limits imposed on the short release take-home exams. 

PG: Yes, I would concur with everything that's been said, and particularly the point about treating the open book exam in the same way as you would a sit down exam. In other words, you should be preparing for it in a very similar way. I think the only difference with an open book exam is simply that you don't have to rote learn case names etc., so you can focus on the substantive content of the material. Don't think that you can leave it until the day and just rely on your notes; you won't be able to. And if other courses are like mine, when we are aware that students have access to materials, sometimes the questions can be a little bit more challenging, in order to avoid students being able to look up an answer. I would be preparing for it as if it were a closed book exam, by understanding case principles and how they apply, identifying issues and so on. We should also add, students should become familiar with the scenarios and the facts of the cases you've been studying and also do revision problems that you've been given and practice that under time conditions.

KW: I just want to pick up on something that Peter said, and that is although you don't need to memorize the case names, you're going to need a really good set of notes. You don't want to be rifling through your notes, trying to find the name of the case, while you're doing the exam. You should be making notes that you can refer to quickly in the exam and that would be a crucial part of preparation.

Do you have any advice on turning the lecture or tutorial notes into appropriate exam notes?

PG: The examination notes should contain a clear statement of legal principle, with reference to the relevant cases, which goes back to Kevin's point. The idea of exam notes is to have a set of principles that are a full summary of the lecture and tutorial notes in order to also assist you to remember the more nuanced points; but if there are important nuanced points, perhaps you might want to put them precisely in the exam notes. That’s what I often say to students. There is an art in putting maximum meaning into minimum words, and that's the exercise with exam notes. Now some students say, ‘I took your advice and I used minimum words when they seek feedback on an assignment’ and I say, well yes, but unfortunately you forgot the first bit which is putting maximum meaning. Whatever you state must have the complete statement of the legal principle. That's what the exam notes are there for, to jog your memory, with respect to principles that hopefully you will have internalized as if you were preparing for a closed book examination. You can’t put everything down on the exam notes. They presuppose deep study and deep knowledge. Often you surprise yourself, if you have been doing that deep study, deep preparation and deep thinking, at how that material or knowledge you've gained does come out when you see a very cleverly framed set of exam notes. 

GT: A couple of other tips that I might suggest is that when you're making those notes, make sure that you are referring to the course as a whole, rather than the specific questions that were asked in a tutorial. I think students sometimes frame their notes in terms of the issues that came up in the tutorials, and obviously it's not possible for us to have covered everything about a topic within the tutorial. So make sure that your notes are wider than that they addressed the course as a whole, and perhaps when you're making your notes about the cases, think about why you're using cases in your answers. Is the case a key case that establishes a legal principle? Is it a case that creates an exception or limits or expands that principle or is it a case it's more illustrative of how that might be applied to facts? And think about why you might use particular cases in your answers, and let that shape how we take notes on them as you're condensing those notes down. 

How is preparing for an online exam different to preparing for an in-person exam? 

KW: I think it's implicit in a lot of what we've been saying, there's not really much difference in the preparation you should be doing. Obviously, just before the exam, you're not going to be getting on the train or the bus to come to the University campus. But in terms of the substance of the exam, your preparation is going to look no different. We've already made the point that you shouldn't be relying heavily on notes in the exam anyway, so although you might have more space than you would have in the exam hall, doesn't mean you need to fill the space.

RS: I agree entirely with Kevin's point. And I think that is one of the key messages coming out of everything that has been said so far, that in terms of the static side of exam preparation, not all that much is really different. I think where the difference arises is perhaps in the physical preparation and also what you do during the exam, and even some of that is not all that different. But I do think that in the conduct of the exam, students will need to be much more alert to issues around time management, and obviously also alert to some of the technical aspects of accessing and submitting an exam online.

GT: In an in-person exam, you're used to having a time limit; and now there will be word limits on some exams, if not all. It's important to make sure that you are aware of the word limit before you start. If you've got more of an extended-release take-home exam, plan when you're going to actually complete the exam: are you going to leave yourself time to go back and proofread it, and make sure that you've built all of that in before the submission deadline?

PG: Prepare a nice space for yourself. Make sure that you've got everything ready to go before the day. Perhaps a cup of coffee or whatever else you might need and put up a notice on your door that you're doing an exam so that people don't disturb you. Really make sure that everything is working well technically, well before the exam period so that it doesn't hit you on the day and create a massive panic.

KW: Just as you would in an in-person exam, you should be putting your phone away. It shouldn't be next to you while you're doing the exam, it's going to distract you. But also you have no reason to have it because you're not going to be communicating with anybody during the exam and certainly not about the exam itself. Just as you're going into the exam hall and there are certain things that you shouldn't have with you, you shouldn't have that device sitting next to you.

GT: And I would also put it on airplane mode because I know, for example, I get notifications on my watch. If a message has come through on my phone and I would find that distracting. As well as putting my phone completely out of reach, I would put it on airplane mode so that there is no unexpected distraction at all.

KW: And turn off notifications on your laptop as well. 

How do you think the reading time should be used in an online exam/open book exam?

PG: In the same way that you would do in an in-person exam. Even though we cannot enforce reading time, because you're in charge of the time yourself, I do think it's important that you spend 20 to 30 minutes planning your examination. I think that the initial period of looking at the exam problems, making an initial assessment of what you're going to attempt and initial issues is how you should use the time. Once you see what you need to do, attempt to allocate a number of minutes to each question, in order that you are able to complete the examination on time. The reading time is a time of deep reflection to identify issues, key facts, etc. before you actually start answering the question. If you just start immediately, you will get bogged down in your writing and you will miss things. That’s the essential answer. 

RS: From some of the emails I received from students, there is a particular concern around how to manage word limits. Perhaps adding to Peter's suggestions around planning and allocating your time in the exam, there may also be some benefit to thinking about how you're going to allocate word limits so that you can keep track of those word limits as you're progressing through your exams.

If I am going over the word count of an online exam, what should I do? Should I keep writing and cut later or stop and start cutting?

KW: Peter has provided some great advice on this, which is "maximum strategy of the maximum meaning and the minimum words". We've set the word limit in such a way that you should have plenty of words in order to answer the question. And what you shouldn't be doing is quoting slabs of a judgment, or sections in legislation; that's a waste of the words that you've been given. You should be mindful as you're planning your answers; treat each part of the answer as something quite separate, and be aware that if you have gone over the limit in one part, you're going to have fewer words to answer other parts. Try and avoid that as you're going and always have in your mind Peter's advice that you're trying to be pithy and capture the crucial principles and rules in as few words as possible. Unless there is a particular inspiration that's very important, there's no need to be reproducing sentences.

RS: Also resist the temptation to cut and paste from other word documents from the electronic version of your notes, for example. Cutting and pasting into your exam risks, first, taking you over the word limit, and secondly, opening you up to plagiarism. So students should think really carefully about cutting and pasting into their exam answer.

Generally speaking most exams have specified an overall word limit. And that word limit has been made very clear in the cover sheet and will be strictly adhered to. When that word limit has been reached, the marker stops reading.

PG: When you are preparing, spread out the words evenly between the questions that you've been asked, as you're doing each question. Once you're reaching a particular self-allocated word limit, then you should start self-restraint to not go over too much. The word limit is ample in order for students to be able to, not just have a solid answer, but an excellent answer. One way to assist you in this word limit scenario where we're applying word count is in the preparation for examination notes. Now that you have the time, state the key principles or as many as you think is appropriate in very pithy language, but very fulsome in meaning. You won't be able to do that in the examination. Part of preparing for exams is being able to do that and not be very long-winded in the statement of principles.

GT: If you're trying to determine how many words you want to allocate to specific parts of the question, look out for whether marks allocated to parts of the question have been indicated by the examiner, because that's obviously a guide to how many words you want to be spending on each question.

Are students expected to include a record of the work count, or can the work count be viewed by examiners without students stating it?

RS: The word limit can be independently checked and will be checked and verified through Turnitin.

If we are running out of time in the exam, should we be covering every issue briefly, or a couple in more detail?

PG: As many issues as you can briefly, I think, although it depends on the examiner. One of the things that the mark is based on is the identification of issues. It's far easier to get from naught to 50 than it is to go from 50 and above. So if you get a couple, in detail, and you've missed five other issues, it's very difficult to get a pass; whereas if you identify five issues and deal with them briefly, it's indicative to the examiner that you know what you're talking about, you just haven't had the time to go through it all. Then, you might find that you actually do get to the 50% mark on that question. Applying that across the examination as a whole, it's far better to answer all the questions. Say, if there are five questions, to answer four really well and not answer question five, you'll get absolutely zero and that last question does affect your others. It's better to attempt everything. If you do run out of time, just even in dot points, identify as many issues as you can. Then if you still have time, start to go into more detail with a couple. That's very general advice. It really depends on the examination, but I think that's probably a general principle that most of us tend to agree.

KW: I agree. And just as with the word limit, we've been generous with the time limit as well, in recognition of all these complications of sitting online exams. And so, as with the word limit, you should have plenty of time to produce, not just a pass answer but even an HD answer.

How can I get into a mindset that is similar to being in an exam room? It’s often very easy to get distracted at home.

GT: I would say treat it as if you're going into an exam room. When you go into the exam room, you take your pens etc. in and you've got everything you need. Make sure you've got everything you want before you sit down to do the exam so that you're not distracted by getting up to get a drink and things like that. It helps to define your workspace. I know not everybody has an ideal workspace at home. Personally I don't either, I'm working at my dining table, and so I've got a load of my textbooks and I've marked out a desk space with those textbooks. They're like a little book barricade. That means that my eye-line is surrounded by work things, even though I'm in my dining room and kitchen. I think in terms of a workspace, doing the best with the space you have is the tip that I would give.

PG: If students are anything like I was before an exam, I didn't really need much to get me into the mindset, as it were. I would think ‘I'm doing a law exam’, and that really puts the pressure on and I think most of you will already be there in terms of your mindset. Just don't be complacent. Because you're at home, it takes away that little bit of anxiety, which I think is always a good thing to spur you on; not so much that it's debilitating, but just that sense of seriousness to help you. Another point that I make to students every year is to be kind to yourself. The first thing that you will notice when you see the factual scenario in front of you, you immediately think ‘I haven't got a clue what this is talking about’ and you start to panic. My advice is to allow yourself to panic for ten, twenty seconds and then say to yourself ‘well that's enough, I've got that out of my system’ and then you'll see, if you've prepared sufficiently, that your own ability, your intelligence, the fact that you've picked things up by osmosis more than you realized, will kick in. Just acknowledge that element of anxiety or panic at the start but allow yourself to experience that and then give yourself a time limit, and then get on with it. A positive mindset is key, which says, ‘I can do this’. It's not a pep talk, it's a statement of truth. The mere fact that you're in law school indicates a very high level of intelligence. Just let that intelligence come to the fore. Don't let panic or anxiety debilitate you in any way.

Do you have any tips on typing exams? I often feel more fluent when writing with pen and paper.

RS: Be really aware about what settings you have in place, in terms of autocorrect. I've been quite horrified lately, to discover the ways in which my autocorrect has actually been set up and has been working and what default words it's using. That's just a very practical example of what to be aware of when you are typing.

GT: I would add that, some advice that we've already given which is that you should be practising with past exam questions where possible. And so when you're practising with those, set yourself the same conditions that you will when you're doing the exam and practice typing them. That's a habit that you start to get into while you're studying, rather than doing it for the first time in the exam. If you're more comfortable with pen and paper, you've got your reading time and you might want to be jotting down a few notes or a structure for your answer, and then you type your answer. If actually sketching something out on paper helps, then perhaps use that during your reading time.

Questions from the floor:

What is the significance of the extra time that has been provided in assessments? Assuming that we don't have any internet issues or uploading and downloading issues, how should we be using this extra time?

RS: The examiner has determined what time should be set for completing the particular paper in a holistic way. The exam duration has factored in the reading time that students would require, as we've been discussing, and has also made account for the fact that this is an online exam, and students may experience some technical difficulties. There's an allowance for the time that it would take to access the paper, the time that it would also take to finalize your written submission, and upload, and there is an allowance for the possibility that something might go wrong in that process as well. It's useful for you in your planning phase, to think about how you're going to allocate your time and ensure that you do allow sufficient time to deal with those technical aspects. 

KW: We've given students plenty of time in order to do the uploading. If you only leave five minutes for uploading, you could get unlucky and experience some problem in that last five minutes. If the worst happens - you'll be given these instructions on the cover sheet - there is an email address to which you should send your answer as soon as possible, once you are able to re-establish internet connection. We've thought about the concerns that students will have about sitting exams in this way, and we try our best to put in place processes that would deal with that. That takes me back to a previous question as well about getting into the mindset, not being distracted during the exam. You could be in shared accommodation and there's noise in the place that you live in. You've done your best and yet there are these distractions. In the event that happens, students are able to apply for special consideration. There are a number of issues that might arise through no fault of your own, and the university has tried to anticipate those. If the worst comes to the worst in the exam, there are processes to go through and adjustments and accommodations that can be made.

RS: I totally agree with everything that Kevin has just said, but I would like to emphasize that not allowing yourself enough time to upload your exam of itself isn't a justification, or a basis for special consideration. Be mindful that it is your responsibility to ensure that you allow adequate time to submit your paper online. So don't be tempted to leave it until the very last couple of minutes, that's a free take home message. Factor that into your planning, and allow adequate time, assume that there might be a glitch. 

In relation to online exams, what would be the impact of referencing on plagiarism? What style of referencing are examiners expecting?

PG: It depends on each exam and I'm sure you'll get instructions if it were to the contrary. It's just what would happen in a normal examination. I'm not expecting any 'referencing' at all in the examination, unless perhaps there is a direct quote that is particularly important, you may want to put the judge’s name or the case. But certainly very lenient as far as that's concerned. 

RS: I would emphasize that it will be very important for students to familiarize themselves with the exam cover sheet for your unit of study. That exam cover sheet, which has very clean and very explicit instructions, will be provided to you well ahead of your scheduled exam. A very simple piece of advice is to read your exam cover sheet very carefully, and be very familiar with what you're being asked to do in that particular unit of study.

Is it recommended to print out the questions?

PG: That depends on individual preference; I certainly would, but really it depends on each person. It might be useful just to have it there on the side, rather than on the screen and you're going from one screen to another.

RS: I would just like to highlight that you have an obligation to ensure that the exam remains confidential. And that you also have an obligation not to share the exam or any questions within the exam, either in hardcopy or electronically.

Would the expected standard of answers for a two-hour exam be different to that of a two day exam?

PG: Yes, because you have the two days. If you're doing an examination in three or four hours, the examiner will of course, take it on board that you have a very limited time and the expectation would be lower. But again it all depends on the examination, I should say. But yes, there would be a slightly different standard if you've got a short release examination, as opposed to a longer one.

GT: Check the instructions for your exam; if it's a longer one, there may be referencing requirements. Also check the instructions because you're going to be told whether you are expected to take those full two days or whether it is a short exam that you are being given more flexibility as to when you complete it.

RS: Just building further on that, with some of the longer release extended take home exams, you may find that the approach toward limits is different. So, once again, do ensure that you read the instructions, very carefully because those instructions will give you information about what is expected of you in relation to that particular paper.

Do you have any tips you would recommend for students to make the best use of past papers when they're unable to obtain feedback for their responses? 

KW: One thing you could do is, you can share practice answers with your friends doing the same subject, and give one another feedback. That would be a useful thing to do.

GT: You may want to see whether the generic feedback for those questions has been made available. Not model answers, but generic feedback. If that's the case then, my advice would be to answer one practice question, look at how your answer compares with that feedback, take that feedback on board, and then go and answer another one. I've seen students who will try and write four answers, and only then look at the feedback, and it's not a developmental process. 

RS: I think that's great advice. I would, again, use this as an opportunity to caution students on how any model responses, or general answers that have been previously circulated to students, are being used in the context of a take home exam. Students need to be really careful about not lifting sentences or parts out of the model answers or general responses and using them in their response in a take home exam, because that is plagiarism. 

PG: I wanted to share two things. The first is from my experience over the years. There are some students that I come across that say they have been relying on notes that have been circulating or model type answers. It seems that they spend a lot of time doing that, to the detriment of their own reading of cases. If your whole preparation is just gleaning answers from circulating notes or other people's responses, you're not reading the cases and letting the principles sink in. And who's to say that what other people wrote are correct? It is often the case that if you're just repeating past errors or repeating past quality. Have confidence in yourself. If I can just make one point, and this is purely personal relating to my view of things, people may disagree - but sometimes students are just so focused on getting the top marks in an examination, that their actual legal education is lost or diminished. You've got to balance that with true learning and getting away from this earlier secondary school type emphasis on maximizing marks. Of course I'm not suggesting that good grades are not important, but not at the expense of deeper learning.

The second thing is, from my experiences being in charge with the integrity unit in the faculty. Look, be very careful with passing around your documents to others. Sometimes it does lead to a form of academic dishonesty. And the person that is giving out their own work, which another person then plagiarizes even or especially after it's been marked from previous years, can find themselves also in a lot of trouble. So please be very conscious of that. No one is stopping you from collaborating before an examination in the sense of discussing points, or perhaps sharing your own responses to questions and that sort of thing, but be very careful, don't cross the line. And I think a warning should be put out there, that a lot of trust is being put in people doing a take home exam. And, you know, we're trusting that people will not use their mobile to phone a friend in order to assist them in answering a question. So, it's a question of personal honor coming to the fore here. One final remark; one of the things I never understood was when students try to cheat. I always thought that an examination is one test to yourself, of how well you do, don't you really want to know that? As opposed to gaming the system to maximize a result, what's the point of that? And I can guarantee you, from my years in practice, a day will come that you will not be able to do that, and the whole facade comes crumbling down. So, I'm not just saying this for the sake of honesty, per se, which it really should be, but also the practical consequences of dishonesty - not just being caught out, but also the effect it has on your actual ability and the way you can perform in the future. I do apologize it's a bit long winded of me, and a bit personal, but I just wanted to make those remarks.

RS: Just to add to Peter's comments, I would really encourage students to reflect on what has been included in the cover sheet by way of the combined statement, and to really reflect on what that statement entails on the part of each and every student in terms of academic integrity. I think this is a wonderful opportunity to think about those types of issues, and to think about what that means in terms of how you conduct yourselves in the context of these online take home examinations.

Thank you to Professor Rita Shackel, Dr Kevin Walton, Professor Peter Gerangelos and Dr Gemma Turton for sharing your experiences with us and taking the time to share your insight. 

GT: Good luck with your exams!

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.

Law School Basics Panel: Study Technique

This is a complete transcript of the SULS panel discussion for study technique held in Semester 1, 2020. The panel was moderated by Natalie Leung (Vice President (Education) 2020) and consisted of Dr Natalie Silver (NS), Dr Kym Sheehan (KS) and Charlotte Trent (CT).

How should I begin study for a unit?

KS: The first thing you need to do is to have a look at the unit of study outline to understand what the unit is about. The next thing I suggest you do is to look at the week by week schedule of what's going to happen. Finally, I suggest you look at the assessment schedule to get an understanding of the final assessment and what assessments might be on the way.

CT: Everyone muddles their way through the first weeks at least, before you start getting into a habit. You can find out what the unit is about through the unit of study, and through the reading list on eReserve. Try and make sure you’re on top of your notes and your readings, that’s a good way to keep at it.

What is the difference between a casebook and a textbook and is one better?

CT: I, personally, prefer the casebook. The casebook has all the cases in it, whereas the textbook tends to describe a lot more of the theory that might be in place or what is happening between the academics. Personally, I think you should pay a lot more attention to the case book.

KS: You can either buy the case book or just read the cases online. But I think reading the textbook can help a lot of students. Often if you don’t have an idea of what’s happening in this area of law, the textbook can help give students a really good overview. For the tutorials, I would read the cases. But a case book is probably going to be essential if it’s prescribed.

NS: If you read the textbook before the lecture, you’ll already have an idea of what they’re talking about. After the lecture, you can then look more in-depth into the case law.

Should I stick to the Unit of Study Outline or should I read beyond it?

NS: I would say stick to the Unit of Study because it’s very comprehensive. In fact, many students can’t always do the readings in the Unit of Study outline. In the subjects I teach, there is no research assignment so there’s no need to go beyond the Unit of Study.

CT: A few subjects will give you your case list in your exams, so it’s a very good idea to be familiar with them because it’s the bulk of your theory. If you want to do extra readings, out of curiosity, you can do that, but it’s not necessary.

How is preparing for a tutorial different to preparing for a lecture?

KS: I already said before that you should prepare for a lecture by reading the corresponding textbook chapter. However, to prepare for a tutorial, you need to complete the tutorial problems. The important thing is that you give yourself enough time for the problems. When you first do the problems, it’ll take some time because you don’t know where you’re going, but if you do that before you come to the tutorial, then you’ll get more out of it. You don’t want the first time you attempt a problem question to be in the exam.

CT: Doing a tutorial question every week is like practising for an exam. You’re doing, maybe 26 hours, of work that you won’t need to do at the end of the semester.

NS: We want to encourage tutorial participation, which may just be asking questions. 

What happens when I miss a tutorial or lecture? Should I try and catch up or should I just focus on the rest of the semester?

CT: Again, that’s really dependent on the subject. For the bulk of subjects, that one week’s worth of content will probably carry over to next week and the weeks after that. It's really important to at least try and catch up whether it’s by talking to your friends about what you've missed out on or talking to a tutor. If it does happen, as long as you catch up, it's okay.

KS: Lectures are typically recorded so if you can't attend a lecture then you listen to the recordings. One bad habit that some students get into is bulking up week by week, thinking “I'll listen to it eventually”. I suggest you try and catch up quickly. If you miss a tutorial, once again, you need to catch up on what you missed out on. But how you do that is a bit more complex because they're not typically recorded. One way is chatting with your friends and then another way is also chatting with your tutor. We always get impressed when people have done a bit of work. If you've missed the tutorial, try the tutorial problems and then ask for help.

NS: For some subjects, you can attend a makeup class.

KS: Certainly. But there’s a courtesy thing that is expected. Make sure to let the tutor of your makeup class know, and to let the tutor for your normal class know.

NS: Another thing about falling behind is that, in compulsory units, you've got compulsory mid-semester exams or assignments that are going to be on those early topics, so you want to keep up with the material.

CT: Another good way to figure out what you have missed are PASS sessions, or Peer Assisted Study Sessions. They’re an hour of peer-directed study sessions. They’re not going to be much help if you didn’t do any of the material, but it might be a good way of figuring out the key ideas of materials and figuring out where to start. They’re not the be-all and end-all, but they’re a very good resource in order to kickstart studying sessions.

What are your favourite study methods or study techniques?

CT: I’m a big proponent for studying pretty much from week two onwards. I've already started making scaffolds and making case notes and, for me, the process of writing out things over and is a really good method. If I’m going into an open book exam with my scaffold, there are one or two dot points along with key case names and so I'm not worried about running out of time and just flicking through my notes. It also means I've entrenched a lot of that knowledge in just my brain through the process of repetition.

KS: When you come with answers to the tutorial question, you should write out a fresh answer to that problem within 24 hours of the tutorial, when the information is still fresh. That way, you have an answer to the questions before you get into the exam period.

Do you have tips and strategies for avoiding procrastination?

CT: I think it’s just sitting down and doing something. There is nothing better than just trying to start. If you’re inundated with readings, you’ll probably push it off. So, it’s important to make it more manageable. And it’s highly dependent on you as a person.

KS: I think it’s really important to use your time well which might mean reading on the bus or train. I strongly recommend getting into exercise or some other good habits. One thing you want to do is to keep healthy and exercise can also help clear your head.

NS: One thing that becomes really important in law are study groups. This might be going over tute questions, building sets of notes and sharing information but they also bring in the social aspect of studying.

CT: Study groups do help because they force you to dedicate time to subjects. I think the biggest thing I struggled in through first year was the inundation of guilt if I wasn't studying or reading. But it’s perfectly fine to go a day without law study.

Check out the 2020 SULS Education Guide here: suls.org.au/publications

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.