Monash Law Alumni News

MAY 2020

In this issue

In crisis there is also opportunity: Welcome from the Dean of Law

The COVID-19 pandemic provides an opportunity to contribute vital expertise to the legal profession and the area of better policy and governance for the new world that emerges, writes Professor Bryan Horrigan. Read more

 

A new era for legal education

In the space of a few weeks Monash Law has become a fully virtual law school; we’re going to be better for it, writes Associate Professor Luke Beck. Read more

 

Providing vital community legal services

In the COVID-19 climate Monash Law Clinics are more important than ever before, providing legal help to those who need it most, writes Professor Jeff Giddings. Read more

 

Former Supreme Court judge joins Monash Law

Professor The Honourable Kevin Bell AM QC has been appointed as the new Director of the Castan Centre for Human Rights Law. Read more

 

What does the COVIDSafe app mean for your privacy?

The pandemic is forcing us to rethink how privacy and technology interact, writes Dr Maria O’Sullivan. Read more

 

Get your LLM in 1 year

Will 2020 be the year you Master your career? Turn a challenge into an opportunity and study the 1-year Monash LLM online. Learn more

 

Making headlines

Catch up on the latest expert legal commentary on COVID-19. Learn more

 

Online learning events

From cybercrime to mental health in the legal profession, this collection of online learning events provides you with the latest expert insights. Learn more

Welcome from the Dean of Law

In crisis there is opportunity

COVID-19 provides an opportunity to contribute vital expertise to the legal profession and the area of better policy and governance for the new world that emerges, writes Professor Bryan Horrigan.

The COVID-19 crisis presents once in a lifetime challenges for everyone associated with Monash University and the Faculty of Law. Like so many industries, the tertiary and legal sectors face challenges unforeseen only a matter of months or even weeks ago. ‘There are decades where nothing happens, and there are weeks where decades happen’, according to Vladimir Lenin. But in crisis there is also opportunity, and I would like to share four opportunities with you.

Firstly, in the space of less than a month after the onset of the COVID-19 pandemic, Monash Law became a fully virtual and remotely engaged law school. The scale and speed of this remarkable transition has seen everyone working from home, online and remote legal education and assessment, and connectedness and continuation of research and other essential academic business through innovative use of technology. This was a major undertaking for our students and staff. We have been heartened by the feedback we have received so far from our students for keeping the feel of personal classroom contact going through technological means. Out staff are finding new ways of staying close to our students, and our students are appreciating it. We look forward to a phased return of our students and staff to on-campus life as soon as feasible.

Secondly, as we know, the way out of the pandemic is through the fruits of research, innovation, and resulting behavioural and regulatory change. Scientific research is vital, and just as vital will be legal and policy responses to the effects of the pandemic. In everything from healthcare to business, ethical considerations and notions of the common good moved more sharply and quickly during the COVID-19 crisis from the slipstream to the mainstream. It has also brought into stark contrast major areas in need of legal responses such as domestic violence, privacy, and surveillance, as well as corporate governance.

Additionally, the legal system and legal services industry are undergoing profound change at a rapid rate. Our justice and dispute resolution systems are moving online, and knowledge of the interplay between courts and technology is more relevant than ever before. Our legal industry as a whole, already in the midst of a shake-up with the advent of NewLaw, is pivoting and changing rapidly yet again. We are ready to respond with a range of new initiatives, ranging from our research-based contributions on the legal dimensions of COVID-19 in Victoria and beyond, to our new masters specialisations and courses such as the Master of Digital Law and various new graduate certificates.

Thirdly, Monash Law Clinics - our community legal clinics that have operated for over 40 years - are on the frontline of some of the major emerging legal problems. From family violence, to tenant/landlord disputes, to infringements that people can no longer afford to pay, our clinics are playing an important role in delivering access to justice to some of the most vulnerable members of our community, while continuing to educate the lawyers of tomorrow. Like the technology-enabled educational experiences happening for our students during the COVID-19 crisis, the immersive experiences of law in practice for clients that our students gain through the Monash Law Clinics under our Clinical Guarantee are transferable knowledge and skills for a variety of career destinations.

Finally, this is an opportunity to show your support for the next generation of Monash Law students. You can do this in a variety of ways. If you are in a position to do so, I encourage you to consider donating to Monash University’s COVID-19 Student Hardship Appeal, set up to support our most vulnerable students. Monash University has committed to match every donation made to this appeal, dollar for dollar.

Alternatively, you can show your support for Monash Law students by sponsoring a clinical legal experience or student leadership program, or becoming involved with our student mentoring, industry seminar series, and educational offerings.

We are committed to providing an unrivalled experiential legal education for our students, and we make this commitment not just through this current crisis but into the future. With the recent appointment of two recently-retired members of the judiciary as new professors - Professor the Hon Clyde Croft AM SC and Professor the Hon Kevin Bell AM QC –  we affirm this commitment to our students by giving them access to the best of the best.

These distinguished professors join other former heads of jurisdiction, judges, and royal commissioners as members of the Monash Law scholarly community in one capacity or another, including our Vice-Chancellor’s Professorial Fellow, Professor the Hon Marilyn Warren AC QC, and also Emeritus Professor the Hon Marcia Neave AO, Professor the Hon Nahum Mushin AM, Prof the Hon Stephen Charles AO QC, the Hon Ray Finkelstein, the Hon Robert French AC, the Hon Peter Gray, the Hon George Hampel AM QC, and the Hon Christopher Jessup.

We stand with our Monash Law alumni and industry community in these times of crisis, as we preserve the four Ls – Lives (eg the health and safety of our staff and students), Livelihoods (eg student career-related education), and Learning through Law (eg existing and new courses and delivery modes, together with necessary research that matters during COVID-19 and beyond) as Monash Law once again responds and transforms beyond the pandemic. As an academic institution, Monash Law is ready to deliver the legal expertise, innovations, and research needed to navigate these challenges, and to convert them to opportunities. We take our role seriously in helping our society find a way out of the problems it faces. We do so while educating law students to develop an understanding of their important role in society, so that they become graduates and lawyers armed with the expertise and the community-mindedness to work to make our world a better place.

Kindest regards

Prof. Bryan Horrigan

Executive Dean, Faculty of Law

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A new era for legal education

In the space of a few weeks Monash Law has become a fully virtual law school; we’re going to be better for it, writes Associate Professor Luke Beck.

Monash Law successfully pivoted to remote delivery of teaching and learning almost overnight thanks to the extraordinary efforts of our academics and support staff.

The content of our courses and units remains the same. But the delivery has changed. Lectures are now online. Interactive face-to-face seminars, workshops and tutorials are now all also online. Interactive teaching has always been a central part of the Monash Law experience, and it remains so in the new environment.

Students are learning even more than they did before the pandemic. The pivot to online goes beyond ensuring that students continue to receive a full legal education. Students are now also developing skills in being agile and adaptable in a changing environment that will serve them well in their future professional careers.

Take Criminal Law 1 under the leadership of Professor Liz Campbell, the inaugural Francine McNiff Chair in Criminal Jurisprudence, as an example. Students attend online lectures. They then participate in a series of online workshops, in which students engage in active learning activities in groups of around six. Students also participate in a series of online tutorials mostly centred on legal problem problem-solving.

Assessment has also pivoted to online. Some traditional assessment tasks, like research essays, require little adaptation. Innovative approaches to other types of assessment tasks have been adopted.

Take Criminal Law 1 again as an example. For a number of years, students have been required to research and prepare an oral sentencing submission or plea in mitigation as an assessment task. Now this is happening remotely. Students need to undertake their research to prepare their written submission, liaise with their partner student to organise a virtual case conference, and then present an online oral presentation of their submissions.

Just like practising lawyers, Monash Law students are learning what it’s like to participate in online justice at the same time as learning the law.

Library skills training is now online too. Students can book one-on-one online sessions with a librarian or with a learning skills advisor. The Law Library is also running online seminars about study skills, reading strategies and approaches to assignments.

Students continue to receive support with equity issues. The Law Library has increased its holding of ebooks, so that disadvantaged students who would previously have relied on library copies of prescribed texts still have access to their readings. Where ebooks are not available, the Law Library is assisting students to obtain gratis hardcopies from publishers. So far, the Law Library has facilitated access to more than one hundred copies of gratis prescribed texts.

Teachers have greatly appreciated the many thank-you emails they have received from students for ensuring that high quality teaching and learning can continue.

For practising lawyers looking to upskill during the downturn, Monash Law’s full range of postgraduate study options have all also pivoted to online. Lawyers can choose to enrol in single units or enrol in a full masters.

Likewise for non-lawyers looking to upskill. Other professionals seeking the legal skills and knowledge needed to make better managerial, commercial and policy decisions in their career can choose from Monash Law’s suite of Legal Studies units.

The Faculty is also planning to very soon offer graduate certificates made up of four units for busy professionals who want a postgraduate qualification but do not want to commit to a full masters.

The pandemic has disrupted normal life, but legal education at Monash Law continues as strong and dynamic as ever.

Will 2020 be the year you Master your career? Study the 1-year Monash LLM online.

Associate Professor Luke Beck is the Associate Dean (Education) and Associate Professor of Constitutional Law in the Faculty of Law at Monash University. Associate Professor Beck is a leading scholar in the field of separation of religion and government, and religious freedom under the Australian Constitution.

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Providing vital community legal services

In the COVID-19 climate Monash Law Clinics are more important than ever before, providing legal help to those who need it most, writes Professor Jeff Giddings.

Monash Law Clinics (MLC) and Springvale Monash Legal Service (SMLS) needed to respond quickly in mid-March when it became clear that we could not continue to have students and staff working closely with clients. Much to our disappointment, we had to halt our normal services to comply with social distancing requirements.

Our clinics have put in place remote arrangements with our student supervisors going ‘back to the future’, taking on a more conventional lawyer role and conducting file work without student involvement. At MLC, more than 300 current files required close attention in this challenging and rapidly changing situation. At both the City and Clayton clinics, MLC staff are working with new clients as well as assisting ongoing clients to pursue their cases. Feedback has been very positive with clients appreciative of the clinic’s capacity to continue to offer valuable services in such testing circumstances.

SMLS made an effective transition to virtual service delivery, offering telephone advice sessions, reaching out to its client base through the channels they are likely to access. SMLS is taking on new clients where there are significant social justice considerations and where urgency is paramount, for instance, employment law. SMLS is also running its duty lawyer services remotely, working very closely with Dandenong Court and Victoria Legal Aid in Dandenong. SMLS has also developed digital versions of its community development programs.

A new model of remote clinical experience ... will operate from late June 2020. Students will be involved in telephone interviews with clients and will then work with their supervisor and other clinic staff to address the legal needs of their clients. They will also be involved in community engagement activities.

MLC service delivery recommenced on 20 April with a telephone interview and advice service. Demand for appointments is strong with all appointments filled weeks in advance. Family law, tenancy and consumer law remain prominent in the case load. This work is taxing on clinic staff with many clients feeling particularly vulnerable and lonely. Clients are in desperate need of legal advice and assistance in these challenging times.

The clinical team is anticipating what needs to be done into the future and making sure our arrangements provide the best outcomes possible for our clients, students and staff.

MLC Director, Associate Professor Rachel Spencer, SMLS Academic Director, Jackie Weinberg, and SMLS Executive Director, Kristen Wallwork have led the way for the Monash Clinical Program to create a new model of remote clinical experience that will operate from late June 2020. Students will be involved in telephone interviews with clients and will then work with their supervisor and other clinic staff to address the legal needs of their clients. They will also be involved in community engagement activities.

This remote placement model will be in place for our flagship Professional Practice units from late June. In addition, MLC will run the following In-House Clinical Placements to also be operating from mid-2020:

  • Anti-Death Penalty Clinic;
  • Australian Law Reform Commission Clinic;
  • Climate Justice Clinic;
  • Human Rights Clinic (with the Castan Centre);
  • International Economic Law Clinic (with TradeLab);
  • Start-Up & Innovation Clinic (with the Monash Generator and the Eastern Innovation Business Centre).

We are also developing a Recovery Plan to allow for the gradual return of our conventional services when COVID-19 restrictions are eased.

Advocacy opportunities are also part of our planning for future clinical offerings. With generous support from the Pratt Foundation and the Cybec Foundation, we are developing plans for clinic staff and students to engage in advocacy activities in a range of legal areas. These include tenancy, guardianship and administration, family law, social security as well as criminal law. We have conducted a needs analysis and are now talking with existing service providers about how to best implement our new ideas.

Want to support Monash Law Clinics? You can show your support by sponsoring a clinical legal experience.

Professor Jeff Giddings is Associate Dean (Experiential Education) and Professor of Law at Monash University. Jeff has written extensively on clinical legal education and established the Griffith University clinical program in 1995. Jeff has researched and practised in the areas of access to justice and Alternative Dispute Resolution.

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Former Supreme Court judge joins Monash Law

Prof. the Hon. Kevin Bell AM QC has been appointed as the new Director of the Castan Centre for Human Rights Law.

We are delighted to announce the appointment of our new Director of the Castan Centre for Human Rights Law, Professor the Honourable Kevin Bell AM QC, who joins the Faculty of Law at Monash University as a Professor of Practice. His Honour was a Justice of the Supreme Court of Victoria from 2005-2020, is a leading human rights jurist and a long-term supporter of the Castan Centre. He retired from the court on 12 March 2020 to devote himself to the Castan Centre, and the promotion and development of international human rights law and human rights education, especially in Australia and the Asian region.

Professor Bell has been a tireless and highly effective advocate for human rights, equality and access to justice throughout his career. As a Justice of the Supreme Court of Victoria, his Honour played a key role in the implementation and operation of the Victorian Charter of Human Rights and Responsibilities within the Victorian legal system. His Honour has been instrumental in enforcing human rights as fundamental legal rights within the Victorian justice system.  His Honour’s judgments have been highly influential in the human rights field in Australia generally.

Justice Bell has made a significant and enduring contribution to the jurisprudence under the Charter, writing many leading judgments on how the Charter should regulate the work of government, Parliament and public authorities, and how the guaranteed rights apply to protect individuals from unjustified violations of their rights. His Honour is particularly known for his work in enforcing the rights of persons with mental disability, minors and unrepresented litigants, among others, and his Honour’s judgments address a range of rights, including freedom of expression, the right to a fair trial, the right to liberty and security, and the right to respect for private life. His Honour’s Charter judgments include Kracke v Mental Health Review Board (2009), Patrick’s Case (2011), Secretary to the Department of Human Services v Sanding (2011) and PBU and NJE v Mental Health Review Board (2018), to name only a few. He has also been a strong proponent of a federal charter of human rights to enhance Australian democracy, one of the Castan Centre’s long-standing advocacy goals.  His Honour’s judgments are regularly relied upon to demonstrate how effective legislative human rights can be to protect the fundamental rights of persons, for example in the enactment of the Queensland Human Rights Act and the work of the Australian Human Rights Commission promoting the enactment of a federal charter.

During his time on the Supreme Court of Victoria, Justice Bell also served as President of the Victorian Civil and Administrative Tribunal (VCAT) (2008–2010). During his Presidency, his Honour undertook a comprehensive review of the tribunal and led VCAT in implementing the Charter in its adjudicative work as well as its administration.  His Honour was also President of the Forensic Leave Panel (2015–2020), during which he led a reform program.

Prior to his judicial appointment, Professor Bell practised as a barrister at the Victorian Bar for twenty years, eight years of which he served as Queen’s Counsel. During his time at the bar, he worked on leading native title cases, including Rubibi Community & Anor v The State of Western Australia & Ors (2001), as well as many human rights, administrative law, constitutional law and industrial law cases.

Professor Bell’s early career was dedicated to the community legal sector, in further support of human rights and access to justice for all. In the early 1980s, he served as Director of the West Heidelberg Community Legal Centre (when a Lecturer in Legal Studies at La Trobe University) and co-established the Victorian and National Federation of Community Legal Centres.  Prior to this, he worked as a solicitor for a number of community legal centres, including the Tenants Union Legal Service (he was its first paid lawyer) and the Footscray Community Legal Centre (which he co-established).  Professor Bell also co-led the Community Campaign for Tenancy Law Reform, which resulted in the enactment of the Residential Tenancies Act in Victoria.

Professor Bell was an elected councillor for the City of Essendon for five years in the 1980s, during which period he was the Chairperson of the Council’s Human Services Committee, and personally led the establishment of the Essendon Community Health Centre, among other things.

In 2017, Justice Bell was recognised as a Member of the Order of Australia for his ‘significant service to the law and to the judiciary, to native title and human rights, and the community’. He holds a Bachelor of Arts and Law (Hons) from Monash University, and a Masters in International Human Rights Law from Oxford University.

It is with great pleasure that we welcome Professor Bell to the Castan Centre and Monash University. We look forward to working together and continue our vital work of promoting human rights in Australia and abroad.

Further reading: COVID19 and Human Rights in Australia. Professor Bell AM QC is authoring a four-part series on COVID-19. The series will examine why human rights matter in the pandemic, responses that involve limiting rights in Australia, impacts on vulnerable groups, and government accountability. Learn more

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What does the COVIDSafe app mean for your privacy?

The pandemic is forcing us to rethink how privacy and technology interact, writes Dr Maria O’Sullivan.

In 2020, human rights law is being tested to its limits.

In March this year, the World Health Organisation declared that an outbreak of the viral disease COVID-19 had reached the level of a global pandemic, and called for governments to take urgent action to stop the spread of the virus.

The role of law in this health emergency has been central. It's permeated all aspects of our lives. In Australia, executive directions have been issued that require the closing of non-essential businesses, placed limitations on public gatherings, and severely restricted the movement of individuals.

These measures have serious implications for various human rights protections, including the right to liberty, freedom of association, freedom of movement, and the right to privacy.

Normally, such restrictions would be unlawful. However, as I have noted elsewhere, a declaration of a state of emergency allows governments to enact restrictive measures in the interest of protecting public health.

For instance, Victoria’s state of emergency declaration gives state authorities wide powers under its Public Health and Wellbeing Act 2008 to issue directions to restrict people’s movement and regulate public behaviour. This is important, because officially declaring a state of emergency allows exceptional powers to be used in exceptional circumstances.

Because this emergency is testing the limits of our human rights protections in Australia, it represents an opportunity to consider how our legal system functions when society is tested. And, in particular, what the operation of the COVID-19 laws say about how human rights are protected in Australia.

In some ways, COVID-19 presents new challenges that can be met by "old solutions"; that is, our existing principles and oversight mechanisms. Importantly, however, COVID-19 also presents some new challenges that require human rights law in Australia to adopt new approaches and develop solutions.

Here, I want to highlight one particular aspect of COVID-19 that demonstrates we require some rethinking about human rights protections in Australia – the recent debates about mobile phone tracing to assist in controlling the COVID-19 outbreak.

A new challenge that requires a new solution

On Sunday 26 April, the federal government released, and urged Australians to download, the COVIDSafe app to help with coronavirus contact tracing. By 10.30 that night, one million Australians had voluntarily downloaded it. A week later, that number had risen above four million.

The app works by tracing every person who has been in contact with a mobile phone owner who has tested positive for COVID-19 in the previous few weeks. It does so using Bluetooth smartphone connections to record who has been near a person for 15 minutes or more (the period defined as a contact).

Obviously, this raises serious concerns for privacy, even though installing the app is voluntary.

International human rights law is clear that state parties have an obligation to protect everyone against arbitrary or unlawful interference with their privacy, family, or correspondence (Article 17 of the International Covenant on Civil and Political Rights).

This is where the COVID-19 emergency represents a new challenge, which human rights law must meet.

Many would probably agree that certain fundamental limits should be put in place to regulate such a surveillance tool.

First, any use of data should only be used for the purpose of responding to the COVID-19 pandemic, and cease once the pandemic is over. In this regard, the tracing app raises the issue of "mission creep" – that the government will use it for COVID-19 purposes, but continue to access the data once the pandemic is over.

Second, the data must be properly and safely stored. Here I note that there have been some concerns around how the Australian government is going to protect data privacy, particularly given that the contract for storing the app's data is going to a US-based company (Amazon).

Third, these technologies must address risks in relation to discrimination against racial minorities and marginalised populations.

But on a more conceptual level, I would argue that we must rethink how privacy and technology interact. This is something that's been highlighted by the COVID-19 emergency, but will remain a problem after that is resolved.

There are two aspects of concern here that require new legal approaches.

  • First, there is often a lack of transparency in how technology is implemented in Australia. This may be a problem that can be remedied by a public education campaign to ensure that those affected by technology have at least a rudimentary understanding of how data is used by authorities, and an understanding of their rights.
  • Second, given the nature of the information many people hold on their phones (photos, intimate messages etc), it could be argued that the phone is an extension of ourselves and is part of our private life, even perhaps part of our identity. This is because we reveal information that is reflective of our personal attributes.

For instance, the types of dating apps on a person’s phone will reveal their sexual identity. Other information and apps may reveal an individual’s political and religious beliefs.

Mobile phones are therefore not simply "telecommunications devices". This means that human rights law must reconceptualise the concept of privacy and a "private life" to deal with this societal fact.

In terms of specific changes to existing regimes, I would highlight that Australia does not have a statutory, legally-enforceable right to privacy. Therefore, as the Castan Centre recommended in a recent submission to the Human Rights Commission’s Inquiry on Human Rights and Technology, a tort for serious invasion of privacy should be adopted. This would allow for better protection against intrusion and misuse of private information, and serve as an accountability mechanism for governmental actions in this area.

Implications for human rights in Australia

Here I've discussed a specific example of an area in which Australia needs to reform its protection of human rights, specifically the right to privacy.

However, I would argue as a more general proposition that Australia relies heavily for its human rights adherence on oversight and accountability mechanisms (such as parliamentary processes). While some of those have continued to operate, it's becoming increasingly clear that we require greater entrenchment of our rights than our legal system currently provides.

The Castan Centre for Human Rights Law has long advocated for a federal human rights charter. When we've overcome COVID-19, I would argue that this should happen.

I also want to make some broader reflections about the implications for society of the current epidemic.

Most people in Australia have never undergone such extensive personal restrictions on our freedoms as we are currently experiencing.

It's my hope that this experience may lead us to have some insight into the plight of others – to deepen our understanding of the human rights abuses that many marginalised and vulnerable people in Australia and elsewhere have faced, and continue to face today.

The government has said many times that we must come together as a nation. This is true. But we must also reflect on inequality and disadvantage in our society, and come together as a nation to ensure our law protects us fairly and equally from those problems.

Dr Maria O’Sullivan is a Senior Lecturer in the Faculty of Law and a Deputy Director of the Castan Centre for Human Rights Law. Her teaching and research interests are administrative law, public law and international refugee law. Maria has completed a PhD thesis on cessation of refugee status under Article 1C(5) of the 1951 Refugee Convention. She is also the author of a number of international and national publications on the subjects of refugee law.

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