Interview | Janelle, Sarah and Dayna (Helix Legal)

Helix Legal describes itself as ‘not just another law firm peddling the old ways of doing things’. The Courier Mail says Helix Legal has ‘obviously done a good job of disrupting the traditional [law firm] business model since launching…’ Helix picked up the Queensland Law Society’s Innovation Award, and was described by Law Society President Christine Smyth as ‘a ‘newlaw’ firm, not quite a tech company but not quite a stock standard law firm’.

Recently Milan Gandhi (TLF) caught up with co-founders Janelle, Sarah and Dayna to get to know them better and find out more.

Helix

What is something the three of you believe that other people think is insane?

A lot of people think we have completely lost our minds so there are many, many things we believe that other people think are insane, but here is a snap shot:

  1. Law firms don’t need time sheets
  2. You can be friends with the people you work with
  3. you can come to work and have fun
  4. everyone in the business has the same capacity to contribute
  5. the best outcome for clients involves more than just the legal answer

 Do any or all of you have a quote you live your lives by or think of often?

Janelle:  I have artwork in my house that I got years ago at a Women’s Legal Service fundraiser and it says “I am the master of my fate, I am the captain of my soul”.  I love that one and really feel like I am now living this!

Sarah:  When I made senior associate back in the day Janelle brought me a painting from the same artist which says “Accept the challenges so that you may feel the exhilaration of victory”

Dayna:  I have been on a massive journey to a happy and healthy life so my inspo quote is “Building a better life one step at a time”.

Helix 2

Janelle, Sarah and Dayna, please tell us a bit about yourselves and how you each came to the point that you decided “we need to start a law firm… and not your average one…”? 

It really started small, we decided to break some old habits –  Janelle gave up TV, Sarah gave up facebook, we all signed up for a Tri and things spiralled from there.  Once we started to do things differently there was no going back!

Janelle, we understand you were a Partner at a pretty well-known law firm. What can you do now, at Helix Legal, that you couldn’t do before? Is there anything you miss about your old life?

The major advantage is being able to be incredibly quick to market with ideas.  LawLancer was a concept we cooked up in September and we are running the pilot program with Bond in May.  From idea to implementation has been intense but we have been agile and bold in our approach and it is paying off.

I made some wonderful friends in my old life and I miss seeing them every day.  I don’t miss the time sheets!

Janelle, Sarah and Dayna, Helix Legal describes itself as ‘not just another law firm peddling the old ways of doing things’. What are the ‘old way of doing things’? What is the traditional law firm business model (and why is it no good)?

We don’t think it is no good.  We just want something different and so do our clients.

How did you design your offering as a law firm to ensure that your clients would perceive your services as valuable and not just necessary?

By building a legal business, specifically designed to deliver value.  Everything we have established is constructed around the needs of our clients, not our needs as a business.

We have taken a good hard look at what quality is and remeasured it from the client’s perspective.  We have come to appreciate that a legal product is not “quality” because it is hard to make and costs a lot of money.  At Helix we want clients to pay only for what is useful to them and gives them value.  To us, that is real quality.

We’ve read that you’ve gotten ‘rid of extensive internal hoops, and out dated billing processes’ – can you unpack this for us? What have been the consequences for your clients?

Our clients have price certainty, no shocks when they receive their invoices.  We do not wait until end of month to do our billing.  Every job has a project plan and a price guaranteed and invoiced once a milestone is reached within the plan.

What is the Queensland Law Society’s ‘Innovation in Law award’, why do you think you won it (we assume it has something to do with your answers to the above) and what has it meant to Helix Legal?

There are a lot of firms who have changed just one or two things that they do, they are virtual or they offer alternative fee arrangements.  In starting Helix, we went right back to the start and designed a business which reflected the way that we wanted to live our lives and they way that we wanted to do business.  There is not a single thing that we do at Helix that is not by design.  We have not had the challenge of turning a moving ship but have built an entirely new watercraft exactly how we wanted it to work.

We thought it was awesome that you came to the Disrupting Law event last year that was hosted by The Legal Forecast and QUT Starters –  what role do you think youth play in driving change in the legal sector?

This is a really exciting time for people new to law and those still studying.  The “new law” movement is opening up a whole range of new opportunities for people who are interested in law and have a background or experience or skill set outside of law.  We think that the best change comes when people from all different backgrounds and generations come together to collaborate and solve problems.

Are you looking for law students or graduates? If so, how do people apply!?  

Yes – All of our recruitment is undertaken through LawLancer – go to lawlancer.legal for more information.

We are going through a period of major growth and will be taking on more people as we forge ahead.  We don’t have a regimented intake program and we are looking for actual humans with bright ideas to work with us to build Helix Legal.

What advice would you give your law student selves with the benefits of hindsight?

Keep going you little worker-ant it will pay off”.

 

Event Review | AFR Summit 2017 | What do innovation and technology mean for the future of the legal marketplace?

Article written by TLF (NSW) Board Member, Angela Metri

The recent AFR Summit gave the public an opportunity to better understand the opportunities and perhaps come to terms with the anxiety felt by many in a global economy that is shifting faster than you can say ‘newspeak’. It can mean opportunity for players in the legal industry. But that means change – vital in a successful business process. It has been successful for some, even if only incrementally. But the legal industry must respond to the urge to nurture the competitive advantage that derives from our ambitious, educated workforce and wealth of natural resources.

Changes So Far

Big changes to the industry have not gone unnoticed.

Expansion of the legal arm under full service accounting firms has proven to be hugely successful for larger clients who enjoy the one stop shop solution, particularly as a seamless and economical answer to opportunity and risk prevention. Clients no longer have to go to different service providers to understand financial or legal risks or structural business concerns. I understand this is not necessarily a practical avenue for law firms, whose services are deliberately legalistic (particularly in areas like litigation), but I do think that law firms could consider creating new offerings to allow forward-thinking .

There are some brilliantly devised tech-based answers such as Law Path, LegalVision, Litimetrics as well as spaces for younger professionals to create discussion and awareness and drive change from a grassroots level (see The Legal Forecast). Tertiary institutions have begun to play their part by introducing electives for law students to better understand the digital world they will be working in, and law firms are redesigning offices to create working environments conducive to collaboration and better client relationships.

Legal analytics have also paved a solid path in the legal industry with statistical big-data analysis, collecting and aggregating important commercial information from court decisions and government documents and making the information available through a user-friendly database. Other AI services deploy data mining and analysis to determine individual lawyer win rates before judges.

The College of Law has introduced The Centre for Legal Innovation, acting as an incubator for research, discourse and discussion on the impact and practical application of the changes taking place in the legal industry.

Relatively recent opportunities for young professionals like the Disrupting Law competition, startups have made a name in the legal industry creating broader opportunities for client access and serviceability, using applications like Facebook messenger to communicate with clients.

Collaborating on Solutions for the Future: Necessity As The Mother of Invention

These initiatives have proven resourceful, but for them to be fully effective, the stakeholders in the legal industry would benefit from solutions being given a collaborative and innovative stage. The most successful products in the legal marketplace reflect thoroughly considered design for the future rather than a fusillade of ad hoc answers. Industry players can begin to consider one stop solutions; platforms for collaboration; a system that thrives on new opportunities between networks rather than answers to clients that rely on competition and risk. This offers so much more than just narrow process efficiency.

Collaboration and awareness for innovative legal products (like those mentioned above) will prevent stagnancy and create a future platform for innovation in the marketplace, expanding the framework of services offered and redefining a client’s experience with the legal industry.

 

Book Review | Designer Law School by Christine Moody | Legal lessons for design entrepreneurs

Designer Law School – Legal lessons for design entrepreneurs

The following review of ‘Designer Law School’ (a book by Christine Moody) was written by Daniel Owen, a member of The Legal Forecast’s Student Executive Committee.

In Designer Law School, author Christine Moody draws on her own trials and tribulations navigating the legal system to impart wisdom, in layman’s terms, to design entrepreneurs who will inevitably be required to do the same.

The core theme of Moody’s book is that designers can use their inherent creativity and professional planning skills to solve legal dilemmas to which they are not typically accustomed.

Of course, the inverse is also true: design entrepreneurs may hold innovative solutions for legal practitioners.  Read from the perspective of a lawyer or law student, Designer Law School is a powerful insight into how lawyers themselves might better serve creatives, designers and startup entrepreneurs.

Christine Moody

Christine Moody is not a lawyer. She is one of Australia’s leading brand strategists and the founder of Brand Audits.

Moody’s career took a unique turn after her once thriving business encountered financial difficulty in 2009. She was forced to undertake drastic action to prevent her companies being wound up, yet after six months of hard work, found herself $100,000 short of her financial target.

Moody entrusted a property developer friend to lend her the remaining funds and to act as trustee over her home. The developer committed fraud and Moody lost the family home. Her book offers advice on addressing the intersection of law and design entrepreneurship based on her lived experience.

IMG_1321

Finding the right lawyer

Moody treats lawyers as team members and sees the value in both a generalist lawyer to handle day-to-day legal work and the hiring of a specialist lawyer on an as-needed basis.

According to Moody, the selection process for hiring legal counsel should begin with the designer creating a shortlist of candidates based on said candidates’ personality and experience-based compatibility. The shortlisted candidates should then be interviewed in person.

She encourages designers to:

  • negotiate legal fees; and
  • to ask for written estimates, matter outlines and itemised invoices.

Be a great client

According to Moody, a great client is a proactive one. Designers are encouraged to consult their lawyers sooner rather than later, conduct their own research and form an understanding of their own matters.

Moody suggests designers can increase the effectiveness of the lawyer-client relationship by preparing briefs, agendas, and questions for meetings where appropriate and by following-up with emails attaching meeting minutes and other relevant documentation.

Designers should also understand how their engaged lawyer prefers to operate, and are encouraged by Moody to show appreciation for work well done.

Respect the contract

Moody emphasises “Contracts 101”, namely, that each contract should be respected as binding, and verbal agreements (though also binding in certain circumstances) should be avoided as a matter of good practice. Contracts should aim to capture even the minute detail and Moody advises that one should not sign a contract until 100% assured of its substance.

Designers should exercise their power to negotiate after thoroughly researching and considering the short and long-term implications of what they intend to sign.

Standard form contracts may also be useful in certain circumstances.

Respect the details

Moody cautions her audience to carefully read all documentation rather than assuming their accuracy, and encourages people to insert provisions for worst-case scenarios.

An abundance of caution should be exercised in the drafting, proofing and signing of documents, and Moody suggests that when sent to a lawyer they should be accompanied by a ‘where-to-from-here’ email. This needs to request a follow up phone call or face to face meeting, an indication of the process moving forward and any crucial dates that need to be kept front of mind. It is also a good time to take inventory of costs to date. It is also the time to request that an additional cost estimate be provided for any out-of-scope work that has emerged.

Understand IP issues

As a designer, the first step in dealing with an IP matter is understanding the various subsets of IP law and how they fit into the bigger picture of your matter. It is important to recognise that trademark, copyright and designs are all subsets of the bigger category of intellectual property law.

IP ownership should be decided for each individual project, noting that particular mind must be paid to the different obligations imparted to designers dependent on whether they are operating as an employee or an independent contractor.

It is important not to assume the legitimacy of the IP attached to any material received from a third party. This applies to all sorts of materials ranging from photographs to illustrations, videos and other similar works. The most effective way to combat this risk is to utilise a standardised form that protects you. It should be native to your business and essentially becomes a modus operandi for whenever you deal with the IP of a third party.

While it is true that it is any third party’s responsibility to ensure they are complying with IP law in any work they produce, this is only true insofar as you are able to ensure your own protection. To this end it is important to gain approval for any material used and then establish a protocol for staff to follow in terms of how to access any documents or images to ensure ongoing compliance.

Moody encourages designers to be wary of the pitfalls of third party IP and to factor the costs of legal IP work into the fee structure they present. Due to the often times unforeseen costs that can emerge in IP due diligence, Moody suggests engaging financial advice to ensure this cost does not spiral out of hand.

Visualising the issue

Moody approaches legal problems undertaking a free-flowing mind-dump exercise from which she progresses to identifying links, themes and relationships. Eventually, everything is simplified down into digestible pieces.

This begins by jotting down every idea and concept you can imagine. Once the ideas are on the page, you can begin spotting the relationships between them. Moody uses a unique colour to link up each set of ideas. On a separate page, draw boxes and insert the issues identified in each one.

Moody’s ultimate goal is to make seemingly confusing and complicated topics simple. In line with this sentiment, once all the issues are identified she further separates them into ‘can controls’ and ‘can’t controls’. The ‘can’t controls’ are dispensed with in favour of things over which she has influence. From this point she proactively begins addressing the issues, but suggests undertaking the entire visualisation process numerous times throughout the project.

To this end, creating what she calls a ‘status report matrix’ can help determine the stage that each process within the project has reached and what next steps need to be actioned to edge closer to completion. This involves illustrating the progress made by shading in boxes as items on the various lists are completed (this also doubles as a form of self-motivation).

As a general rule she also advocates numbering and dating all documents.

Tame the paperwork

Moody suggests that paperwork can be combated with organisation. This will assist in the avoidance of legal fees, which can be minimised if the client understands fee structures and takes the initiative to complete the work that can be done and present the instructions to the lawyer in clearly. Moody also advocates for the establishment of a robust and synchronised digital and hard-copy filing system.

Moody herself sets aside one day per week for filing and makes the process more enjoyable through attractive stationary and fun work strategies.

A final suggestion

Perhaps Moody’s most valuable offering is the idea of prioritising fun to maximise effectiveness. She suggests viewing every task as a project and quarantining issues into manageable portions.

After her own financial ordeals she prefers to see the lessons in what has happened rather than the negatives, and follows her ‘emotional flow’ rather than resisting it. This means accepting the days where she doesn’t feel like pushing herself or when her energy is low. She advocates for days of ‘white space’ that she calls ‘no decision days’ that allow her mind time to rest and recuperate. Conversely, on days where she feels motivated, or even angry, she embraces the idea of harnessing this energy and channels it into greater productivity.

In many ways this strategy flies in the face of conventional wisdom, which typically suggests trying to avoid negative emotions at all costs. But then again, nothing about Moody’s story has been conventional and by approaching the law from the unique perspective of a designer, she has offered an approach to legal problem solving that manages to be as refreshing as it is original.

Designer Law School

 

 

TLF Brainstorm | Ep. 1 | Redefining access to justice

What is TLF Brainstorm? 

TLF Brainstorm is an opportunity for our community of legal forecasters to share their creative ideas in response to an interesting question about the role of the lawyer.

TLF Brainstorm is one part philosophical, one part creative, and most of all, it is a space to share new ideas.

Some of our responses may be genius and change the world forever, some may completely lacklustre, some may be riddled with typos (having been typed and sent through on someone’s mobile phone while on the bus). This is the beauty of TLF Brainstorm.

Please feel free to use the following widget to vote for the below response that most resonated with you:

The legal forecaster who wins will receive a certificate and small gift from TLF. 

The Question: redefining access to justice 

For our inaugural TLF Brainstorm, we considered the following question, which was posed by Emma Kendall (Partner, DLA Piper & avid sneaker collector):

Is the current definition or common understanding of “access to justice” too narrow (e.g. access to justice = (merely) pro bono work) and, if so, how should it be redefined, expanded or reframed?

Consider in your answer whether your expanded/ reframed/ redefined concept of “access to justice” could be used to improve the relationship big commercial law firms have with “access to justice”.

The Answers 

Adrian Agius (TLF, NSW)

I feel like there is no problem with the current definition of access to justice. I do think however there is a total disconnect between what firms feel improve access to justice and what outcomes actually are. Justice is a construct of transparency, accessibility and affordability. They are all concepts which, to be properly realised, require firms to move beyond actions for the sake of PR, small scale technology adoption and monetary support, to a more transient culture that reflects such values in every aspect of work. In a partnership model however, this renders itself impossible or at the very best, limited. Could you imagine telling partners that they need to relinquish their partnership and restructure so as to realise access to justice.

Andrew Dibden (TLF, QLD)

Let’s break this down.  “Access” and “to” are commonly understood enough words to cause little problem of their own within the phrase “access to justice”.  Their meaning, however, is broad and often driven by context (access to a computer network vis-a-vis access to the roof of a building).  In most (if not all) cases, “access to” contemplates both the following elements:

  • An ability to obtain the “thing” to which access is pursued; and
  • Permission (be it societal, legal, moral etc) to obtain the “thing”.

The difficulty, in my view, comes with the nebulous nature of “justice” and, more importantly, the lack of a clear articulation of society’s formulation of justice.  Instead this formulation can be found in the meandering river of our legal system, which cuts off certain private freedoms in the interest of public safety, or which discourages certain activities in favour of others.  Consequently, we are left in a position where we are seeking appropriate ways to obtain a thing which cannot be clearly seen and which, by definition, is constantly morphing and changing.

I do not propose here to answer the question: What is justice?  However I do hope that when “access to justice” is discussed, discussions of justice (or the policy settings which society, through the Parliament, decide to achieve justice) do not cloud, confuse or frustrate progressing improving access to those mechanisms by which justice is provided.

Mollie O’Connor (TLF, QLD)

In terms of my personal understanding of the term ‘access to justice’, I have always associated it with improving the ability of the legal profession to provide services and assistance to those members of society who otherwise could not access the law because of financial, social, educational or other reasons. In that sense, my understanding of access to justice has always focused more on the pro bono side of the legal profession, and ensuring that the law can be accessed by all, not just by those who can afford it. I don’t feel that this understanding is too narrow, as ensuring the law can be accessed by disadvantaged or impoverished members of society is a major issue to tackle on its own without widening the scope of the term.

However, I do feel that as access to justice in its current understanding is better improved, there is more scope to broaden the definition to include a more commercialised aspect. Access to justice could be expanded to focus not only on accessing the law itself, but to include a focus on accessing a greater range of services within the profession. Access to justice could be given a more commercialised viewpoint, wherein commercial law firms engage with local businesses or start-ups on a more affordable basis and provide access to a greater range of legal services that they otherwise could not access.

However, such an expansion of access to justice to include a wider section of society would be reliant on the current understanding of access to justice being embraced and achieved successfully. Whilst I believe a transformation of the concept will occur into the future, currently the legal profession needs to focus on providing services and access to justice to the marginalised sections of society.

Angela Metri (TLF, NSW)

A universal understanding of ‘access to justice’ is difficult to define. But it is given underlying principles – an expression of protecting and promoting the public interest and enabling the legitimate participation of citizens in society.

Other links to access to justice might be seen in effective competition for availability and affordability of legal services, and whilst this could lead to greater access to justice for citizens it could also mean a reduction in the number of providers who can compete effectively. Loss of service could also mean a potential loss of access to justice. A more competitive marker could result in concentration on transactional activities that are not normally associated with access to justice.

Amongst the public, a better education and understanding of legal rights and duties could instigate better-informed defences of claims, but it may also lead to a claimant not pursuing or defending a claim because of informed risk understanding and uncertainty, even where the defence is otherwise valid.

In a legalistic conceptualisation of access to justice, we consider protecting and promoting the public interest and supporting the rule of law; equally we might consider encouraging independent, strong and effective legal advice and representation, and court processes that are equal for all who access it, and those who wish to access it. But it can be viewed more broadly – the legal system should lead to results that are individually and socially just. Access to justice is not just limited to access to legal services, lawyers, law firms or the courts.

Akaash Singh (TLF, QLD) 

I think we have to consider what is ‘justice’. Justice is a broad concept and can mean different things to different people – to a lawyer, it’s fair application of the rule of law and certainty in the law to resolve disputes between citizens; to an accused, it’s fair and due process; to the victim, it’s a sense of satisfaction knowing that the wrongs done to them have been corrected; to popular media, it is harsh punishment on criminals. 

So corporate law firms need to understand that justice can differ when talking about different interested parties. I think it is a process of these law firms identifying what types of parties they want to act for and then aligning strategies according to that party’s conception of justice. That would provide better “access” to justice.

Angus Murray (TLF, QLD)

In response to the question, it is important to understand the historical context for access to justice. In this regard, the Magna Carta states that “[t]o no-one will we sell or deny of delay right or justice”. The common and contemporary understanding is that every citizen has an entitlement to be able to seek justice. Although this understanding is (relatively) clear, there are a number of important elements that must be considered when responding to the question. These considerations are broadly and generally (and in no way exhaustively) expressed as follows.

  1. Knowledge of the areas in which justice may be sought.

This point is relatively simple – you must be able to recognise where you have been wronged to be able to seek just remedy(ies). The law is complex, convoluted and often overwhelming for the “average person”. This complexity often makes it difficult to identify (let alone understand) when justice is able to be sought.

2. Financial ability to access justice.

The identification of issues (as briefly enunciated above) wherein justice may be sought requires years of training and experience – thus, the role of lawyers. Unfortunately, a large majority of society is financially incapable of seeking legal advice, and this is without the cost of seeking access to justice through the Courts. The Legal Forecast focuses on this reality and has attempted to address this issue via hackathons, publication of blogs and articles and engaging in a community-wide discussion about the way(s) that technology may alleviate some of the financial strain of accessing the Courts (and this brief response does not attempt to delve into the complexities associated with community legal centres, government funding and the financial disparity between certain applicants, respondents and parties to litigation or the role of experts).

3. Literal ability to access justice.

This is literally the ability to access justice. For example, the availability of information regarding the means to seek justice, the physical accessibility of a (for example) courtroom or the geographical location of a person (i.e. rural v urban).

In sum, the expression “access to justice” should clearly be redefined and expanded.

It is my view that this issue may be alleviated by:

  1. Increasing the focus on legal education (or at least the concept of justice);
  2. Increasing the technological solutions within the legal system to make justice more accessible (in a financial and logically driven manner); and
  3. Ensuring that the democratic discourse around justice remains central to society.

Kate Timmerman (TLF, QLD) 

My understanding of ‘access to justice’ is the ability for all members of society to be able to access the legal system – whether that be in the form of:

  • advice in relation to their rights and obligations;
  • legal remedies available to them; or
  • the resolution of a dispute.

There is significant pressure on the legal profession to support those who are deemed to not have access to justice, usually as a result of their financial circumstances or physical or mental disability.  This results in law firms providing pro bono services, often on an ad hoc basis.

If the purpose of redefining ‘access to justice’ is to allow greater accessibility to legal support, then the principle to be considered is whether our legal system requires significant overhaul to allow ‘access to justice’ rather than merely facilitating access to the present legal system.

That said, I do not propose to provide a detailed analysis of the overhaul of our legal system.  Rather, I propose there are stages or steps to achieve access to justice.  The current definition of providing pro bono services is step 1.  The next steps need to include:

  • changing the law, court procedures and legal practice to enhance the power of the legal system for all members of society;
  • providing functions for resolving disputes without enforcing complex rules and procedures; and
  • utilising technology to assist those who are disadvantaged in respect of physical or mental disabilities.

As such, the definition of ‘access to justice’ does need to be expanded, but in a practical context to change the system as opposed to attempting to facilitate access to a system that does not provide justice equally to all members of society.

Michael Bidwell (TLF, QLD)

I do believe the current understanding of ‘access to justice’ is too narrow.  It is based off the traditional model of someone with a legal problem going into a building looking for someone to help them.  My personal view is that the legal and business professions are not doing enough to advocate for those who need it most.  

Access to justice should be expanded to mean professionals using their skills to benefit their communities.  This does not have to be a pro bono service although that is clearly one direct avenue.  It can incorporate offering community groups your drafting or advocacy skills if they need to make a submission.  It can incorporate speaking at public gatherings on topics you are passionate about and want changed in the community.  It can incorporate empowering diverse young people to pursue professional careers because that will inherently create broader understanding and respect in the professional community.  Justice is not necessarily legal because it encompasses all social issues that we face.

I believe this expanded definition would improve the relationship big commercial law firms have with access to justice.  While direct pro bono services are absolutely essential, our duty to the community should not be something as simple as measured hours.  We have so much to give back in our privileged positions in society and any action to benefit access to justice should be celebrated.  Removing the legal focus will allow big commercial firms to create interdisciplinary teams with clients to effect justice in their communities.

Samara Cassar (TLF, QLD)

Whilst a plenary definition would hinder the capacity to adequately adjudicate the success of an initiative in achieving ‘access to justice’, I believe the contrary – to prescribe a settled definition to the concept – would be largely reductionist. A flaw in the present system is the tendency to resolve to traditional ideas of ‘justice’ and for legal practitioners to assist in static programs (i.e. in fixed pro bono initiatives for ‘key’ issues). Instead, I think a more ‘bottom-up approach’ would better serve the greater community in ensuring the actual issues experienced by those less fortunate are identified.

In sum, I believe it worthy to continually redefine and challenge our understanding of ‘access to justice’.

Milan & Josh’s Speech to UNSA | UN climate change regime, the Paris Agreement & tips for redesigning the UN

The below are speech notes compiled by Milan and Josh for the purposes of their presentation to the United Nations Student Association at UQ on 16 March 2017. 

UNSA Speech

Today we are going to take you through a basic overview of the UN Climate Negotiations – how they came about, what they are and some key points flowing from the Paris Agreement (which many of you have no doubt heard about).

Beyond our interest in international law, Josh and I are with an organisation called The Legal Forecast – we are a group of early-career legal professionals interested in the future of law.

Therefore Josh and I thought we might try to get through the climate stuff so we can talk to you about the future of the UN and specifically the plans of a Swedish billionaire to award 5 million dollars to anyone who can come up with a better system.

Josh and I are unashamed optimists and we genuinely believe that it could be someone in this room who wins that money. So stay tuned and we’ll give you some tips to get started.

UN CLIMATE CHANGE SYSTEM

(1) 60s – 90s

The Paris Agreement is an international treaty which deals with greenhouse gases emissions mitigation and other things like adaption to climate change and climate finance.

Before we drill into some key points about the Paris Agreement, it is important for tonight’s purposes to explain to you, as briefly as we can, how the agreement came about.

60s

In the two decades after the UN’s establishment (the 1940s – 1960s), environmental issues did not rank highly on the global agenda.

The Economic and Social Council is one of the six main organs of the UN (established by the UN Charter in 1946).  It is the United Nations’ central platform for reflection, debate, and innovative thinking on sustainable development.

On 29 May 1968,  the Economic and Social Council became the first UN organ to include the environment on its agenda by deciding to hold a UN Conference on the Human Environment.

This was later endorsed by the UN General Assembly (which you’ve heard about).

70s

The Conference, called the UN Scientific Conference and also known as the “First Earth Summit”, occurred in 1972 in Stockholm.

Like all UN Conferences, it was essentially a meeting of governments, who had gathered to work out how they were going to solve some common issue – in this case, a bundle of environmental ones.

The First Earth Summit produced:

  • a declaration setting out principles for the preservation and enhancement of the human environment and a plan for international environmental action. In this declaration, the issue of climate change was raised in a section concerning the control of pollutants.
  • The Conference also produced the United Nations Environment Programme (UNEP), which is a UN agency that guides and coordinates environmental activities within the United Nations system.

80s

Over the next 20 years, as a part of efforts to implement the decisions of the First Earth Summit, concern for the atmosphere and climate change gained importance on the international agenda.

In the 80s, the international community designed and adopted several treaties to regulate transboundary air pollution and to limit the production and use of chlorofluorocarbons in order to protect the Ozone layer.

90s

The United Nations Conference on Environment and Development (UNCED), also known as the Rio Summit or the Second Earth Summit, was a major United Nations conference held in Rio de Janeiro from in June 1992.

  • 172 governments participated;
  • Over 2400 NGOs were in attendance and there was a parallel NGO Forum
  • Several documents came out of the Rio Summit:
    • Agenda 21 – a non-binding, voluntarily implemented action plan of the United Nations with regard to sustainable development.;
    • the Rio Declaration on Environment and Development;
    • the Statement of Forest Principles – non-legally-binding principles on the preservation of forests;
    • the United Nations Convention on Biological Diversity – its objective is to develop national strategies for the conservation and sustainable use of biological diversity; and importantly for our purposes,
    • the United Nations Framework Convention on Climate Change

(2) The UNFCCC & the UN Climate Conferences – what are they?

  • As the name suggests, the purpose of the United Nations Framework Convention on Climate Change was to create a framework for international cooperation to combat climate change  or (in the words of the treaty)
    • “[stabilise] greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”
  • The Framework Convention established an annual meeting of the states parties called the COP or Conference of Parties.

This is really where the path of diplomacy leading to the Paris Agreement begun

  • To date there have been 22 of these Conferences of Parties – they have developed a multitude of international treaties and soft law instruments to try and progress international cooperation and action on climate change
  • Conferences of Parties are common in the case of major prescriptive and proscriptive Conventions – often they are convened every year or every second year and are a means by which countries can progressively negotiate how action can and will be taken
    • In the case of settled Conventions, these conferences are largely a reporting mechanism – example of UNTOC – where new trends and challenges can be identified and negotiated
    • In the case of the UN Climate System, the COPs were integral to building consensus towards new legally binding international treaties to give effect to and flesh-out the goals set down in 1992 in the Framework Convention

While we do not have time to cover all of the 22 Conferences, there are a few worth mentioning and which you may have heard of:

  • At the Kyoto Conference in 1993 (COP 3), states parties negotiated the Kyoto Protocol.
    • Despite the fancy term “Protocol”, like the Framework Convention, it too is simply an international treaty.
    • It was ground-breaking in that it was the first to legally bind certain nations to emissions cuts.
    • It adopted a bifurcated system whereby developed country parties were given different obligations to developing country parties
      • in essence, the former were legally bound to emissions reductions targets (these were the Annex B parties); and
      • the latter were given aspirational or non-binding targets.
    • This split has always played a role in the history of the UN Climate negotiations – it reflects that the industrialised, developed world is disproportionately responsible for climate change whereas less developed countries have largely borne the brunt of its effects.
    • It reflects also that cheap energy, be it from dirty sources like coal, is vital to alleviating the conditions of poverty for many developing nations and therefore “binding commitments” are a much bigger ask for these nations.
  • The Copenhagen Conference in 2009 (COP 15) is an interesting one to mention merely because it was a notable low point in the negotiations.
    • There were lots of reasons for this – one was that the conference venue could not physically hold the amount of people in attendance and there were issues and frustrations flowing from mismanagement by the host nation.
    • There was a failure of consensus, negotiators were refusing to compromise and then when the heads of state like Obama and Rudd and others finally arrived the mess worsened.
    • To save political face, the US along with China, India, South Africa and Brazil drafted a “political agreement” which is now known as the Copenhagen Accord – the Conference of Parties did not adopt it, they merely “took note” of it (whatever that means)
    • A further interesting point was is that in January 2014, documents leaked by Edward Snowden revealed that the US government negotiators were in receipt of information during the conference that was being obtained by spying against other conference delegations.
  • At the Durban Conference (COP 17) in 2011, nations agreed that they would adopt a universal legal agreement on climate change as soon as possible, and no later than 2015.
  • Milan actually attended the 21st Conference of Parties in Lima, as a Global Voices Scholar, in 2014 (see the video)
  • That brings us to the Paris Conference in 2015 – it was the 22nd Conference of Parties.
  • The result of the Paris Conference was achievement by the international community of the goal that they had set themselves in Durban – namely, to adopt a universal legal agreement on climate change.

The Paris Agreement

  • The result, the Paris Agreement, is a unique treaty – it is an example of how compromise is often the name of the game in international negotiations
  • Parties are legally bound to volunteer individual commitments – called Nationally Determined Contributions
  • But the actual content of a Nationally Determined Contribution, and how ambitious it is, is left entirely to the country itself
    • This of course contrasts the approach of the Kyoto Protocol, which was to prescribe certain nations’ targets
  • The Paris Agreement is therefore sometimes referred to as taking a bottom-up approach as opposed to a top-down approach
  • This in the eyes of many was a compromise; however, by this compromise it did achieve universal participation among nations and is groundbreaking for this reason
  • In the coming years, states parties to the Paris Agreement must establish effective mechanisms to facilitate, encourage and enforce compliance with its provisions. If such modalities are too stringent, they will fail to achieve widespread participation. If they are too weak, they will be ineffectual.

(3) Opportunities to get involved – Global Voices scholarships & other opps

Global Voices scholarship:

  • The Global Voices scholarship allows students to undertake a research fellowship on foreign policy and international relations, which involves trips to, inter alia, the UN, the World Bank and meetings of the G20

Endeavour Mobility Grant

  • Prof Alan Davidson is involved with the UNCITRAL Working Group on Electronic Commerce and takes two students to New York every year to attend the annual meeting of the Group

UN Internships

  • A number of UQ students have interned for various UN bodies, including the UNODC
  • UN Youth Australia appoints a Youth Representative every year to travel to the UN in New York as part of the Australian delegation, with the view to providing a perspective on youth issues

(4) UN 2.0 – Swedish billionaire has issued a $5 million award for anyone who invents a UN 2.0.

Laszlo Szombatfalvy, one of Sweden’s most successful investors of all time, is urging on the younger generation to rethink global governance. Now he has issued a large award for the best idea to replace the current global governance system, through a competition called ‘A New Shape’.

Potential shortcomings of the UN

  • The UN has been criticised on a number of grounds, often on the basis of its ineffectual composition and functioning
    • There is a view that the UN is Western-centric and does not adequately respond to issues outside the Anglosphere and Europe; the example of Rwanda and insufficient action on climate change, which most immediately affects Pacific Islands
  • The UN Security Council vests permanent seats in five nations (US, UK, France, Russia, China), who also all carry vetoes which can defeat any proposed resolutions
  • Votes in the General Assembly do not account for the population of each of the voting countries and also do not take into account those countries who may have a greater stake in what is being voted on
  • Because passing resolutions, or agreeing treaties or conventions is an inherently diplomatic exercise, the final versions of these agreements are often severely watered down from their original form, or have diverged substantially
    • Paris Accords as an example – no firm targets, only firm reporting
    • UNTOC Trafficking in Persons Protocol – originally tabled as a means of suppressing sex trafficking in women by Argentina, but quickly took on a broader ambit over the course of negotiations
      • An example of diplomacy being good for the final result
  • Unnecessary sophistry and bureaucracy – Milan spoke earlier about ‘Protocol’ meaning much the same thing as ‘Treaty’, which itself has basically the same function as the term ‘Convention’. There are reasons why these terms are used differently, but in a sense, it is sort of emblematic of the diplomatic red tape that in many ways characterises the UN

Need for a new UN?

  • Laszlo Szombatfalvy clearly is of the view that the UN is not representative of global interests
  • He particularly criticises the ineffectiveness of the UN, citing a lack of action on climate change as a key example
  • He espouses the view that individuals should think of themselves as global citizens, with a forward-facing view (i.e. what world are we leaving for our grandchildren)

What form could a new UN take?

  • Shortcomings of UN are arguably in many ways a product of the UN’s socio-historical context
    • Previously League of Nations, UN formed to prevent another World War
    • History by the victors – Allied nations dictated the terms by which the UN was to operate
  • Changing complexion of the globe?
    • Issue of African development – industrialisation of Africa has been a slow process; famine and drought in Africa are exacerbated by the effects of climate change, yet Africa has little political influence on the UN relative to the ‘major players’
    • Are the P5 representative?
  • Is the UN as it currently stands truly democratic?
    • Direct democracy vs representative democracy: is there any argument for a more proportionally representative form of representative democracy; would this further marginalise smaller nations, particularly Pacific Islands
  • Where should a new UN sit relative to domestic governments and other regional supra-national bodies?
    • Like the EU, where certain directives and conventions have overriding effect?
  • Can the UN ever truly be binding on its member states in a meaningful way?

By Milan Gandhi & Joshua Keenan

Selection of sources

UNGA Resolutions

43/196 of 20 December 1988

44/172 A and B of 19 December 1989

44/228 of 22 December 1989

45/211 of 21 December 1990

46/168 of 19 December 1991

Links

UNFCCC Timeline: http://unfccc.int/timeline/

UNFCCC Essential Background: http://unfccc.int/essential_background/items/6031.php

Agenda 21: https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf

Other:

https://unchronicle.un.org/article/stockholm-kyoto-brief-history-climate-change

http://www.nytimes.com/1975/10/20/archives/un-environment-effort-a-start-a-long-way-to-go-un.html?_r=0

http://www.un.org/documents/ga/res/47/a47r190.htm

http://www.un.org/documents/ga/res/46/a46r168.htm

http://publications.gc.ca/Collection-R/LoPBdP/BP/bp317-e.htm#(9)txt

http://www.un.org/geninfo/bp/enviro.html

Milan’s video (that was playing in the background): https://player.vimeo.com/video/113989770?autoplay=1&loop=1&title=0&byline=0&portrait=0

 

 

Review of Convergence 2.0: How do we drive high performance in an era of exponential change?


Review of Convergence 2.0: How do we drive high performance in an era of exponential change?

By Michael Bidwell (The Legal Forecast/ McCullough Robertson Lawyers)

Photos by Dream Oz Photography

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On 14 March 2017, dozens of innovators, tech junkies, corporate professionals, leaders and other interested individuals gathered at Flight Centre’s new office in the Southpoint development in South Brisbane.  There were incredible views of our river city and the featured speakers were very thought-provoking.  Ticket holders were scanned in and provided a ‘boarding pass’ with allocated seats at tables to network.  Furthermore, each table was assigned a ‘Sidekicker’ to connect people with similar interests.

The wonderful Daniel Morcombe Foundation also made an appearance announcing their international charity drive and commitment to child safety on and offline.  I will outline some of the key themes below that were focused on throughout the night by the speakers relevant to The Legal Forecast.

Are we experiencing exponential change?

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Joel De Ross, VR Thought Leader, absolutely believed we are in a period of exponential change.  He commented on the notion that your mobile phone will be one million times more advanced in ten years time.  Joel uses virtual reality to assist event and festival planners to visualise the risks and potential losses before their event occurs.

Dr Emily Verstege, Author and Thought Leader, acknowledged that technology is changing exponentially but people are not.  She commented that transformation of people takes time and there will always be that human element connected to technology.  Dr Verstege said we should be doing more to train people for transformation.

The remarkable founder and CEO of Top Deck Travel and Flight Centre, Graham ‘Skroo’ Turner, was against the idea that we are experiencing exponential change.  He followed on from Dr Verstege’s human element comment and added that we have innate human behaviours that will not change exponentially.  While companies may use an app like ‘Sidekicker’ to fill temporary or casual work vacancies, we will still have a recruitment process in place to ensure we receive the best employees.

What is the difference between technology and innovation?

Aaron Birkby, Entrepreneur of the Year, said there is a very big difference between technology and innovation.  It comes down to technology making life easier or disrupting an industry but it does not shape the industry.  Mr Birkby is the chief executive of Startup Catalyst which inspires young Australians to visit Silicon Valley and come back to start their own companies here.

Andrew Flannery, Executive General Manager of Flight Centre’s Australian corporate travel business, clarified that innovation does not require technology.  He gave two examples from Flight Centre’s perspective.  One was operating Flight Centre with dozens of ‘small-business’ brands to ensure each one had a clear target audience and specific expectations.  The other example was allowing managers of their stores to have a stake in the business so they felt connected and engaged.

Jess Anscombe, General Manager of Flight Centre’s Corporate Traveller, discussed how technology can enable companies to provide gender equality in the workplace but the innovation comes from the people within the company to actually achieve gender equality.  Although she has never felt disadvantaged as a confident woman in the industry, she acknowledged many women will not put their hand up for a promotion.  As a society, we need to innovate how we inspire, enable and encourage women to put their hand up when they deserve the promotion or opportunity.

Should failure be a measure of success?

Every single speaker recognised that failure is necessary in order to achieve success but there were some lasting comments I believe every person should hear.  Aaron Birkby argued failure should actually be something measured like a KPI because he tells his young tech gurus that, if they are not failing 70% of the time, they are not moving fast enough in the industry.  Dr Verstege noted that every failure enables us to become the best version of ourselves the next day.  Graham Turner reflected on moments during his initial trial and errors with Top Deck Travel and said there was once a time when they did not have enough cash flow to pay for their brochures.  Call it innovation or the Australian way but he took investors out for some beers and they all agreed to offer some extra cash.

Final thoughts

I do not believe society is experiencing exponential change but I believe our traditional methods of thinking and behaviour are being challenged exponentially.  I agree with Dr Verstege that people will always hold resistance to change but we will transform over the years to our new convenience and efficiency driven lives.  Innovation does not require technology but technology is encouraging everyone to think more outside the box.  I know many people who reflect upon their failures to learn but I believe it would be innovative to have measurable KPIs for failure.  It was a genuine pleasure to attend and meet professionals from diverse industries coming together to inspire and encourage one another.  Thank you to McCullough Robertson for sponsoring my attendance.

 

Interview | Benedict Coyne (President of Australian Lawyers for Human Rights)

Recently, Milan Gandhi (TLF) caught up with Benedict Coyne, who we fondly refer to as Benna.  Benna is the President of Australian Lawyers for Human Rights.  He has an immensely interesting past and we spoke to him on a range of topics relevant to law students and early-career-professionals including the importance of creativity (specifically, dancing), whether the UN is broken, Benna’s role as President of ALHR, and, of course, human rights and the future of human rights.

Disclaimer: the  following views are Benedict Coyne’s personal views and do not reflect the opinions of Australian Lawyers for Human Rights (ALHR) or Anderson Fredericks Turner Lawyers & Advocates.

Benna, what is something you believe that other people think is insane?

That we are all intergalactic sky beings transplanted from interdimensional star systems and life is a mere lucid simulation in which Steve Bannon wrote the algorithm of Trump… ?

On a serious insane note, I believe that Australia will be a Republic and have a federal human rights act or bill of rights within the next 10-20 years and some (insane) people think that is insane which balances out well!

Benna - Slam Poetry

 

Do you have a quote you live by or think of often?

Nature does not hurry, yet everything is accomplished” – Lao Tzu

What advice would you give your 20-year-old self

[My caveat on the answer to this question is that after coming to study law late and realising that I loved it, I spent a number of years kicking myself for not having had done so earlier and instead feeling like I had “wasted” years of my life travelling etc and that, had I not, my legal career would be much farther progressed by now etc etc. However, I have gradually come to realise that there is a wealth of worldly experience in all facets of life and aging all of which has great utility in a legal career in its various manifestations so I have eventually and finally arrived at the point where I can groundedly say that I accept my reality with the law and largely do not regret the early choices I made in my adult life]

  • Dreadlocks on a white-Anglo Aussie aren’t cool and eyebrow piercings are SO 1990s!
  • Don’t worry everything will work out just right;
  • Be yourself and don’t overly worry about what other people think;
  • Do exactly what you just did all over again i.e. follow your heart and passions; avoid studying law like the plague for at least 8 years; travel the world have adventures, try new experiences, challenge yourself; ride a bicycle across Australia, trek the Inca trail, do a 10-month overland trip through SE Asia with a one-way ticket, bungy jump off a 160m suspension bridge on the Nepal- Tibet border in the midst of a Maoist insurgency and civil war; get involved in many movements for positive social change and social & environmental justice; study philosophy, politics; investigate and explore many different religions and spiritual paths; go see the Dalai Lama teach in residence in McLeod Ganj; yoga retreats; Vipassana meditation; deep ecology workshops; eco-Catholicism and Eco-philosophy; interfaith and human rights; vision quest in Death Valley California; shamanic rituals in Bolivia and Ecuador; make music, write poetry; be spontaneous and random; write, produce and direct a hip hop puppet show; rap with a 10 piece New Orleans Brass Band; get a paid job as a travelling slam poet; work as a roadie, a labourer, a landscape gardener; do a Diploma in Holistic Counselling; live, live, LIVE!

What is/ who are the ‘Australian Lawyers for Human Rights’? And what is your role as President?

ALHR was established in 1993 and is a national association of Australian solicitors, barristers, academics, judicial officers and law students who practise and promote international human rights law in Australia. ALHR has active and engaged National, State and Territory committees and a secretariat at La Trobe University Law School in Melbourne. Through advocacy, media engagement, education, networking, research and training, ALHR promotes, practices and protects universally accepted standards of human rights throughout Australia and overseas.

The organisation was started by the amazing Kate Eastman SC of the Sydney bar after she returned from working for a public interest law firm in London and realised there was nothing similar in Australia. Former executive members have included Kate Eastman SC, Professor David Kinley (Business & Human Rights international thought leader from USYD), Robin Banks (former Tasmanian Anti-Discrimination Commissioner who is returning now to head up our national Human Rights Act Subcommittee), former ALHR Presidents: Dr Susan Harris-Rimmer, Stephen Keim SC, John Southalan and Nathan Kennedy.

The organisation has expanded markedly over the past few years and we now have nearly 8 national thematic subcommittees as follows:

  • Disability Rights Subcommittee – chaired by the incomparably lawesome Natalie Wade 2016 Law Council Australian Young Lawyer of the Year and 2016 South Australian Young Lawyer of the Year;
  • Indigenous Rights Subcommittee – chaired by the magnificent Dr Amy Maguire of Newcastle University and David Woodroofe (Principal Legal officer at NAAJA);
  • LGBTI Rights Subcommittee – co-chaired by the both marvellous Nicholas Stewart and Kathryn Cramp;
  • Business & Human Rights Subcommittee – chaired by the excellent Amy Sinclair;
  • Refugee Rights subcommittee – co-chaired by the both superbly erudite UNSW academic Khanh Hoang and former UNHCR worker Rebecca Dowd;
  • Freedoms Subcommittee – chaired by the indefatigable and diligently brilliant Dr Tamsin Clarke who is always applying the finest precision sharpening to all of our submissions and media releases;
  • Women & Girls Rights Subcommittee – co-chaired by the both highly esteemed Associate Professor Rita Shackel (USYD) and Anna Kerr (founder/ Principal Solicitor of the Feminist Legal Clinic)
  • Human Rights Act Subcommittee – chaired by former Tasmanian Anti-Discrimination Commissioner Robin Banks and former ALHR President Nathan Kennedy will be focusing on progressing the campaigns for a Tasmania human rights act, a NSW human rights act, a WA human rights act and a federal human rights act. I founded the HRA subcommittee in December 2014 to reignite the conversation for a federal human rights act and to accord with my Masters dissertation on a similar topic. However, in February 2015, the work of the Committee changed its focus to co-creating a campaign for the Queensland human rights act and we have had great success in the past 22 months campaigning and lobbying for a Qld Human Rights Act. Now our eyes are firmly fixed on igniting campaigns for human rights acts in Tasmania (which the Tasmanian Council for Civil Liberties has already kicked off), NSW (which Amnesty people have kicked off), WA and federally.
  • We are also hoping to have a Children’s Rights Subcommittee launched this year.

We also just had our first ever ALHR National Human Rights Conference at La Trobe University Law School city campus in Melbourne. Although we were nervous about our first run, it was a great success with an amazing line up of speakers and a very collaborative collegial atmosphere where many strategies and ideas for the coming year(s) were shared and pitched – it was not an academic conference which is exactly what we wanted!

We are also excited that in transitioning to paid memberships in the past 2 years we now have some funding to better increase our visibility and advocacy impact in the media and generally. We are also increasingly sending national committee members to advocate in Geneva and hopefully New York at various United Nations events and related events.

My role as president involves essentially a second full-time job and includes overseeing all ALHR’s national/international activities with my brilliant colleague Vice President Kerry Weste and our executive. We are a very democratic and non-hierarchical organisation which brings its own challenges and benefits and during a recent period of unprecedented expansion we have experienced some growing pains with the national committee facing an ever-growing workload – this is essentially a very excellent “problem” to be confronting!

In day to day terms this includes but is not limited to:

  • Overseeing all ALHR’s national/international activities with my brilliant colleague Vice President Kerry Weste and our executive. We are a very democratic and non-hierarchical organisation which brings its own problems and benefits and we are experiencing some governance growing pains at the moment due to our increasingly burgeoning impact which is essentially a very excellent “problem” to be confronting!
  • Governance issues and convening regular national committee meetings and related;
  • Attending events around Australia including for example, the recent DFAT Human Rights NGO roundtable at the National Museum in Canberra, the Law Council of Australia Death Penalty Symposium in Melbourne;
  • International work: Attending UN events such as Australia’s Universal Periodic Review in Geneva and we are hopefully getting a team to attend Australia’s CERD Review in Geneva as well as this year’s UN Forum on Business & Human Rights in Geneva;
  • Corresponding with colleagues internationally about setting up similar organisations;
  • Engaging in the Human Rights Act for Queensland coalition including attending meetings with various organisations and politicians;
  • Media engagement: Drafting and finalising media releases, radio, television and newspaper interviews at local, national and international levels;
  • Drafting and finalising submissions on substantive law reform or legal issues to State/Territory/Federal Parliamentary Inquiries and United Nation Bodies
  • Giving evidence before Parliamentary Committees of inquiry for example the recent Freedom of Speech/ Section 18C inquiry
  • Meeting with various UN Special Rapporteurs when they visit Australia and our various national
  • Giving speeches, presentations and lectures on human rights topics at universities, conferences, high schools, around Queensland and Australia
  • Coordinating campaigns, organising events and always thinking up more audacious ideas

Why were you on Channel 10’s the Project last week!?

Yes, on Friday 26 Feb 2017…. for a whole 8.5 seconds (extracted from a 15 minute interview where I tried to align with the parlance of The Project’s demographic with lines like “Tony Abbott has a history of being hysterically hostile to human rights…. he is a human rights hater from way back…He should pop another onion in his gob to stop all the cray cray from leaking out”…they didn’t use it!)

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You have forged a career navigating the legal system to seek justice for underdogs and voiceless people – what is one thing you would change about our legal system with such people in mind?

There would not be one thing but many things…in fact very many things! However, to limit my response, I would properly enhance access to justice via significantly increasing the quantum of legal aid funding from State/Territory/Federal budgetary allocations such that access to justice can become an actual realisable reality – we are far from it currently and drifting dangerously further with the federal government’s incoming cuts! Access to justice and proper legal representation for the marginalised and disenfranchised in our society is what protects the dignity of our democracy from dissolving into the increasing dysfunction of highly polarised rich-poor cavernous gaps which destabilise and make insecure our societies and economies (notwithstanding that the human-greed-impulse and fictional-infinite-growth-bottom-line-lustful-clutching paradigm always albeit erroneously appears to be the most pragmatic pathway for our corporately-compromised political class). There is an abundance of places to easily source such funding. The perennial and pernicious obstacle (to most of our human-rights-violation-problems in Australia) is political will! For example, one could introduce a small (0.01% – 0.1%) levy on corporate and large scale financial transactions to fill a national legal aid fund and thereby boost the economy by providing increased employment for many of our legal graduates who are currently entering a balloted market a situation of diminished employment opportunities (and don’t even get me started on tertiary institutions irresponsibly marketing aspirational legal career mythologies to fill their pocketses…). Substantively providing access to justice in Australia via an enhanced well-funded legal aid service(s) would go a significantly long way to solving a lot of persistent human-rights-violation problems in Australia.

What will the major challenges to human rights be in 4 -6 years’, time and 20 – 30 years’ time?

Historical amnesia will be the perennial challenge to human rights forever. As long as humans have memories and power biases. Currently we have the Trump/Briedtbart Spoilt Brat White Man syndrome and rise of right wing nationalists.

Really you can’t sum it up any better than British historian and moralist, Lord Acton, who expressed this opinion in a letter to Bishop Mandell Creighton in 1887:

Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.

Until Homo sapiens evolve into a more compassionate, wise, considerate and eco-collaborative species of Homo-more-selfless-sapiens or even better Homo-all-my-relations-sapiens, we are going to be stuck with innate (human) nature of corruption and erroneous-scarcity-motivation toward small “s” selfish greed and gluttony at the expense of others. It is up to human rights advocates to keep watch and maintain vigil at the doors of democracy and, in the vein of former UN Secretary General Dag Hammarskjöld’s famous statement, not “to take (hu)mankind to heaven, but to save humanity from hell.”

How must human rights law “keep up with the times” and what role can lawyers play, particularly young lawyers, in ensuring that it does?

The term “human rights” is as amorphous as it is ambiguous, broad as it is specific and encompasses a myriad of contexts, perceptions, perspectives, circumstances and thematic areas. I believe that most lawyers are human rights lawyers. Certainly, criminal defence lawyers are human rights lawyers of the first degree on the front lines of access to justice, as are employment lawyers and civil and administrative lawyers. Even if you are a prosecutor you play an important part in the machinery of access to justice and human rights and equally if you are defending corporations there is an increasing exciting global movement in business and human rights emanating from the 2011 unanimous adoption of the Guiding Principles on Business and Human Rights by the UN Human Rights Council.

Human rights law keeps up with the times by virtue of there being an active, creative and innovative body of (human rights) lawyers actively, creatively and innovatively engaging with the myriad of human rights issues in all their multi-faceted complexity, whether that be: writing algorithms to enhance access to justice or bringing human rights cases before any of the courts (well-considered audacious arguments to expand the law or otherwise); or lodging complaints about human rights issues with the various United Nations Treaty Bodies and Special Procedures; to the diligent conduct of one’s legal practice and adherence to all one’s ethical obligations to courts and clients.

Some other things young lawyers might want to do is join ALHR and The Legal Forecast, and every other human rights legal organisation. Volunteer at a Community Legal Centre. Take every opportunity to enhance access to justice and creatively, innovatively and passionately address the myriad of human rights-violation perennial problems throughout Australia and the world. Write about it! Talk about it! Sing about it! Rap about it! Dance about it! There is plenty of work to be done and an abundance of opportunities to do it so get up, get down, get excited and get engaged!

Is the UN broken? A Swedish billionaire has offered a $5.6 million reward for anyone who can come up with UN 2.0. What would your UN 2.0 look like? (We promise not to submit your answer…)

No. The UN has many systemic problems as do all institutions that are dependent on the corruptible  natures of human beings. However, on a cost-benefit analysis I think the UN provides far more benefit to the world and humanity than the problems it has. I think detractors and critics of the UN often fail to acknowledge the momentous amount of work UN bodies do every day, hour and minute throughout the world and the innumerable people that they do help albeit not everybody. My question for such detractors/critics is “Would you prefer a world without the UN?” Again, a perennial problem for the UN and its bodies, such as the UNHRC, is funding (from UN member countries) and political will and the Westphalian conundrum of nation-state sovereignty and its intersection (or obstructions) with international diplomatic collaboration.

For example, please imagine/envision the following – Australia could have easily and humanely solved its alleged border security problem in complete adherence with international law (ICCPR & 1951 Refugee Convention & 1967 Updating Protocol) by investing just one-fifth of the approximate $5 billion of taxpayers’ money it cruelly, wastefully and idiotically injected into the private shareholder coffers of Transfield/Broadspectrum/Ferrovial/Wilson Security/etc (without taxpayer consent) into the UNHCR and related bodies creating a properly funded holistic regional processing infrastructure with Indonesia, Malaysia, New Zealand etc Further, in adherence with international law, the Australian government could lead the way globally in the climate of the current and looming global refugee crisis, and fund adequate legal representation for asylum seekers which again would enhance the economy by providing more jobs for university law graduates

As stated above, I think the best summary realistic (as opposed to optimistic or pessimistic) assessment of the United Nations was made by former UN Secretary General Dag Hammarskjöld when he famously said that the United Nations “was not created to take mankind to heaven, but to save humanity from hell.”

I think it is excellent that Laszlo Szombatfalvy has offered such incentive for younger generations to engage in enhancing global governance. For a healthy socio-economic global climate, our systems require constant reassessment, questioning, disruption and updating just like our technologies. Let’s not forget what an amazing job former UN Secretary General Kofi Annan did with his visionary overhaul of the UN with the realise of his report “On Larger Freedom” in 2006 which led to the inceptions of the excellent Universal Periodic Review (UPR) system which has, at the close of its second cycle of reviewing the human rights records of 196 UN member countries in 4.5 years for each cycle, proved to be largely successful albeit not perfect.

What my United Nations 2.0 would look like is perhaps the subject of another article and a PhD and it would involve many changes and renovations to existing models and most certainly would include the establishment of a World Court (or Global Tribunal) of Human Rights as recommended by Australian Gallipoli hero Colonel William Roy Hodgson during the drafting of the 1948 Universal Declaration of Human Rights. Hodgson was a person with disability after being shot at Gallipoli and went on to become an excellent and compelling international diplomate and ardent advocate for small nations at the inception of the United Nations. He was also one of the members of the 8-person drafting party of 1948 Universal Declaration of Human Rights under Eleanor Roosevelt. We need to renovate and enhance the ANZAC legacy (and the Australian national identity) to include our proud history of leadership in the establishment of international human rights law.

We understand you are a slam poet of some renown and presently dabble in ballet classes and acting classes and also that you are reading Joseph Campbell’s seminal book about storytelling and mythology, Power of Myth. Two related questions–

In your experience, what is the importance of “storytelling” and “theatre” in the court room or in a royal commission?

Good and effective advocacy is all about good and effective storytelling and theatre. Looking at life in a Bard-ish “All the world’s a stage” context, I believe that we all follow scripts in our lives to some degree whether that be:

  • In our own internal narratives (that allow and limit us in our beliefs/thoughts/endeavours);
  • In our professional lives and careers which allow us to market ourselves as “experts” in certain fields of service-provision, knowledge and inquiry;
  • In our social, personal and intimate interactions with others;
  • …etc

Humans are social creatures and life is about relationships and communication and the field of law and the legal profession are no exception. The development of good law requires to a significant extent good advocacy inter alia, which requires good storytelling about the theatre of life within the theatre of the courtroom.

Does creativity matter in the context of a legal career? Why is it important for lawyers to dance?

I like the idea of dance as a metaphor for actively engaging with, reacting to, and communicating in life in a wide array of contexts and on macro and micro levels. Dancing is also about being creative and having fun, it can be energetically active and devoutly spiritual. I think creativity is of indispensable important to a legal career both in one’s practice (running innovative and creative cases to attempt to actively develop the law) as well as creative pursuits to counter-balance the cognitive-headiness of law.

However, I don’t think there is any blanket prescription for creativity, each to their own. I am expressly here going to avoid the term “work life balance” (noting the irony that I just used it to disabuse it) spewed across corporate websites has become such a trite, meaningless and often utterly disingenuous cliché. However, a balanced life for all people in all careers is fundamentally important for a fulfilling life. Human are creative and social creatures, not merely number-crunching-balloted-billable-unit-bible-bashing-sausage-factory- automatons. I have worked for large firms and I found it particularly dehumanising, Machiavellian and, notwithstanding I learnt some important life lessons and some legal things, it really wasn’t for me. That said, I have colleagues and friends who really enjoy working for large firms and it works very well for them which is great. The beauty of studying law and “the legal profession” is that is broadly diverse and accommodates all kinds of personality types including extroverts, introverts and us acrobatic ambiverts!

I have had a few experiences of burn-out in my life both during and prior to my legal career. Passionate people need to be careful that their passion, as benevolent as it might be, does not become all consuming. My latest lesson especially at the moment with effectively working almost two full time jobs is that I need to balance my law with creative pursuits, exercise and meditation – so slam poetry, taking classes (of things I have never done before which challenge me). However, I don’t think there is a blanket prescription for everyone and some people thrive from being immersed in the law and when you’re young you can do that but perhaps not-so-much when you’re oldies.

In terms of periodic existential assessments which we all experience from time to time, I generally future- think in terms of being on my deathbed. That is, when it comes to making decisions in life and in periodically assessing my life I imagine looking back on my life at the point of being close to death in order to ascertain what I might ultimately regret having done or having wasted time on in my life. This is why I avoided studying law like the plague for a good eight years. I have used this methodology for many years I think initially since reading the Tibetan Book of Living and Dying when I was about 18yo and subsequent multiple Vipassana meditation retreats and increasingly after my first child died in tragic circumstances just after he was born when I was 27yo and had just started my law degree. I have also taken on a more spiritual perspective I guess in focusing on gratitude and not being attached to outcomes such as being a lawyer for the next XX years or becoming a barrister or running this kind of case or that kind of case…etc Exercise, meditation and creativity make present and grounded which is, for me, an important pre-emptive antidote for burnout.

In the context of TLF and the age of digital disruption I think the dancing metaphor is very apt because dance is about responding to your environment – music, rhythm, dance partner, space etc. We hear a variety of corporate fitness buzz words ad nauseum these days like “stronger” “leaner” “agile” “ready to respond to changing markets and the challenges of today…blah blah etc”. However, notwithstanding how quickly corporate generics can manufacture cliché, it is not untrue! I think the randomly rapidly expanding multi-versic marketplace is all about creative adaptation which is of course the basis of evolution generally and therefore (i) corporations on the ASX are buzzing on about nothing new and (ii) we all need to be strong, lean, agile dancing thinkers to robustly respond creatively to changing and challenging times!

The other thing I like about the dance metaphor that it can be about core soulful individual expression. For example, if you put people a room turn on some music and ask them to freestyle, everyone will dance differently. Dance can be the expression of the essence of our individuality. So, while we don’t have to all be literal get down dancers, I think that in order to sustain longevity in the law it is important that you find your own groove and of course if it does not exist you apply creative robust will and persistence and you carve it out!

How can our readers assist and get involved with ALHR?

It is very easy for lawyers and law students to become involved in ALHR – simply visit our website and become a member!

Membership of ALHR offers legal professionals the chance to have a voice on human rights and law reform in Australia and internationally. They can get involved and impact state and federal legislation through work on submissions and our thematic subcommittees listed below:

  • Disability Rights Subcommittee
  • Indigenous Rights Subcommittee
  • LGBTI Rights Subcommittee
  • Business & Human Rights Subcommittee
  • Refugee Rights subcommittee
  • Freedoms Subcommittee
  • Women & Girls Rights Subcommittee
  • Human Rights Act Subcommittee
  • (start up a new national Children’s Rights Subcommittee)

Lawyers and law students can also get involved in their local state or territory committee and help with events and strategic advocacy at that level.

If you are not a lawyer you can still support ALHR by becoming a Friend of ALHR.

AND for any readers that would like to give more than their membership and time toward assisting ALHR to maintain and grow our current presence, donations can be made to ALHR here. ALHR accepts no funding from governments or political organisations. We rely solely on the revenue we raise from paid membership and the generosity of donations.

Also members get actively involved in our State/Territory committees and national thematic subcommittees.

Thank you very much, Benna!

Interview | Lyria Bennett Moses (UNSW’s ‘Designing Technology Solutions for Access to Justice’ unit)

Recently UNSW launched a course to teach “students how to design legal information systems, integrating expert systems, hypertext, text retrieval and other technologies, for use in generating legal documents from precedents and assisting users to navigate solutions to legal problems.”

Angela Metri, from The Legal Forecast, caught up Lyria Bennett Moses to find out more about her newly introduced unit, ‘Designing Technology Solutions for Access to Justice’, and her thoughts on the future of law and technology.

Lyria is an Associate Professor in the Faculty of Law at UNSW Australia. She is also:

  • the Chair for the IEEE Society on the Social Implications of Technology;
  • Chair of the Law, Technology and Innovation Research Network at UNSW Law;
  • a PLuS Alliance Fellow;
  • Academic Co-Ordinator for an Academic Co-Director of the Cyberspace Law and Policy Community; and
  • convenor of Designing Technology Solutions for Access to Justice.

Lyria is currently a Key Researcher and Project Leader on the Data to Decisions CRC. Her areas of expertise are law and technological change, data associations in law enforcement and national security, property law, equity.

Do you have a quote you live by or think of often?

“I took the path less travelled by, and that has made all the difference” (Robert Frost)

Technology is still a murky area to the majority in the legal profession; both in its use amongst legal professionals and in relation to the discussion around the area. So how did you come to study your field of work?  

When I was a law student, the most interesting part of any course was the classes when we explored interesting “new” issues. This included e-commerce in contract law, property in human tissue, intellectual property and domain names, and so forth. I always wondered whether there were any underlying currents that tied these kinds of problems together – that was the question I set out to answer when I did my doctorate at Columbia Law School.

In your work, you suggest that the way lawyers look at technology is different to the way it is viewed more generically. Lawyers consider how the law ought to relate to activities, entities, and relationships made possible by a new technology. Can you give us an example of this from the legal industry as we know it today? 

One example might be the giving of automated personalized legal information or the drafting of automated personalized documents. These fit uncomfortably with pre-existing categories which assumed that one can either give general information about the law or can give “legal advice” (which requires that particular ethical and competence standards be met). Currently most providers attempt to avoid legal liability by stating that the information or documents provided are not legal advice, but it remains unclear whether in some cases a line may be crossed legally or ethically.

Can you give us a key issue from your findings on legal and policy issues surrounding the use of data and data analytics for law enforcement and national security? 

This is work I have been doing with the Data to Decisions Co-operative Research Centre.

A significant issue here is the complexity of legislation concerning the circumstances in which different kinds of data or information can be passed between government agencies. Some of this is due to federal/state differences and others follow from the patchwork manner in which different Acts have been passed (relating to different agencies or data sets). Another issue is the terminology used in legislation, which can be a poor match for current data access and storage platforms. Overall, the goal is to ensure that those engaged in intelligence analysis and criminal investigations can use data effectively, but also appropriately.

In 2017 you will be offering a new unit for law students, Designing Technology Solutions. What were your aims when you created this unit? Do you view it as a gap being filled or an proactive opportunity? 

It is, in fact, an old course, albeit re-invigorated by heightened interest from the legal profession in these kinds of tools. Graham Greenleaf taught a similar course in the late 1990s / early 2000s. These skills are increasingly important to the legal profession, and thus students taking the course will open up new career opportunities. At this stage, it is not a core expectation that every legal graduate have these skills, so I would lean towards proactive opportunity.

We know that technological developments are rapid due to their highly competitive market; inversely changes introduced by the law are incremental and at a reactive and slower rate. But you  suggest that technological change is a type of social change — so law pre-dating technological change can apply in the new circumstances without any confusion (for example, electronic signatures). Can you give us another example, perhaps a modern trend or social issue that stems from technology that law students can relate to? What can law students do to instigate change and create awareness? 

Most technologies do not require legal change. Oliver Wendell Holmes once famously mocked a Vermont Justice of the Peace for suggesting that he could not resolve a case involving churns because there was no “law of churns”. We do not need a “law of iPhones” to know that you can enter into contracts to buy and sell them, that they are chattels (or personal property), and that they need to comply with relevant telecommunications standards. However, at the same time, there may be some legal uncertainties or other new legal questions arising from their use – such as the use by members of juries of social media platforms during a trial.

As for law students, I think it is important to ask questions about how the law applies (and should apply) to new activities and new technologies; stay curious! You can do this in every subject (AirBnB and land law; synthetic biology and environmental law; algorithmic decision-making and administrative law). Once law school is over, you are likely to have to solve new problems as well as old ones.

What is one thing you would change about our educational system with technological developments in mind, specifically for law students?  

At UNSW, we are asking ourselves that exact question! I should have the answer later this year. But in general I think there are two things that need to change. Law students should be encouraged to gain technical skills that will be useful in practice – this can be done through a combined degree or by taking subjects such as Designing Technology Solutions for Access to Justice. In addition, law students should be encouraged to think about legal challenges presented by technological change, not simply in a one-off subject but throughout the curriculum. The issues have changed since I was a student (contract law needs to engage with how smart contracts work, not simply e-commerce), and they will continue to change. But if lawyers don’t think about the appropriate governance frameworks for the use of automated decision tools (for example), then the future will be built without them.

Does creativity matter in the context of a legal career? If you have a good technical understanding, is it enough to get by? 

As automation takes over more “routine” tasks, creative and critical thinking will remain important.

What has been the most rewarding experience of your academic career so far? 

That is a very hard question! I enjoy the opportunity to follow rabbits down holes without worrying about billable hours.

What will the major challenges to law firms be in 3 -5 years’ time with technological developments? Do you think they are keeping up with other industries?  

Working out how to use automation to drive efficiencies while maintaining professional and ethical standards as well as the social benefits that have accompanied the rule of law, which is not the same thing as the rule of algorithms programmed to mimic law.

Your most recommended book(s)? 

There are too many, but the best course I studied was during my masters. It was called “Modern Legal Philosophy: The Books” (taught by Jeremy Waldron) and it made me read works such as HLA Hart’s the Concept of Law, Ronald Dworkin’s Law’s Empire as well as Raz, Kelsen and Finnis. I am very grateful for this solid grounding. While I get a lot out of books addressing current legal issues (and my favourite at the moment would be Mirelle Hildebrandt’s Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology), I still refer to the classics.

What is your biggest tip for law students starting law in 2017?

Think carefully about your “other” degree (in a combined program) and what skills will most benefit you. Often, there are advantages in not following the crowd as you will gain skills that your fellow job applicants don’t have. I studied Pure Mathematics in my Science degree – it gave me a logical thoroughness and conceptual creativity that it is hard to find elsewhere. There are also good reasons to combine with other Science and Engineering programs, such as Computer Science, to gain skills and understanding that are often sought but hard to find among law graduates.