Monash Law eNews

The latest news, events and expert opinions from the Faculty of Law at Monash University.

Quarter 1, May 2019

In this edition

Forget money, law is about saving lives

How a lawyer's generosity will help provide free legal advice to thousands of people in the future. By Andrew Marks

Monash Law welcomes back pioneering law students

Our very first law students, who started studying Law with us in 1964 and the early years, helped create a wonderful legacy of ambition, a pioneering spirit, hard work and community.

Global Legal Hackathon

The biggest legal hackathon on earth took place simultaneously in more than 40 cities around the world. Have we found the next big thing in legal tech?

Banking Royal Commission: why not prosecute corporate crime?

Deploying the criminal law in cases of corporate crime may serve to develop much-needed public trust in the system, writes Professor Liz Campbell.

Company directors brace for a perfect storm

After the Banking Royal Commission businesses are looking for clear guidance on what to do, writes Professor Bryan Horrigan.

High Court cites Monash Law research in landmark abortion clinic 'safe access zones' decision

A team of Monash Law academics' amicus curiae submission has been cited in the High Court judgment. Dr Caroline Henckels, Dr Tania Penovic and Dr Ronli Sifris explain what the decision means.

Moot Court nominated for design award

The state-of-the-art Moot Court has been shortlisted for the 16th annual Australian Interior Design Awards.

Making headlines

A Family Court shake-up, climate migration, Brunei's anti-gay crackdown - check out the many ways Monash Law academics are contributing to important public conversations.

Forget money, law is about saving lives

By Andrew Marks

Andrew Marks has left a gift in his will to support Monash Law’s community legal clinics. These clinics provide free legal advice to thousands of people who can’t afford or aren’t eligible for publicly-funded legal aid. The passionate Monash alumnus and accomplished lawyer explains his motivations for giving to a cause that not only serves our community, but provides students with the real-world experience they need to enter successful careers.

Immediately after I completed my law course in 1976, I commenced articles at a leading city firm in 1977. Aside from some interviews for articles positions, I had never been to a law firm. I was completely unaware of what really happened there, so I got quite a shock when I met my first client. This hands-on experience was something that was lacking from my education.

40 years on, the Monash Clinical Legal Education Program gives hundreds of students the chance to interact with clients and deal with real cases at the University’s community legal clinics, every year.

Despite what some people say, law isn’t about how much money you can charge a client, or how much you earn.

It’s far, far more than that.

The law is about saving lives, and assisting people, not just corporates.

You save lives and assist people when you stop a woman from being bashed in her home. You save lives and assist people when you reunite families. You save lives and assist people when you stop the breadwinner of a family going to jail because they didn’t know how to navigate the system to pay their fines.

Working in the community legal clinics and interacting with these clients humanises what is taught at Monash. And we now know that clients want someone who can relate to them. Similar to doctors needing a good bedside manner, lawyers must have a good benchside and deskside manner.

That’s what I see Monash Law trying to do now. The Faculty aims to produce socially-minded lawyers who have the genuine desire to help people, families and the most vulnerable.

And that’s why I’m so pleased to support this program, because it expands the experience of students and gives them a real-world understanding that is of great benefit, irrespective of what branch of the law they go into.

It was after I heard about Francine V. McNiff’s truly remarkable bequest to Monash that I was inspired to make the decision to leave a gift in my will.

It led me down the path of thinking that people who had the advantage of a free education at Monash, and have done well out of it, should have a responsibility to give something back.

And I hope that my and Francine’s decisions encourage others with a desire to give, and a social conscience, to think about doing something too. It takes more than one person to create an impact.

At Monash Law we believe access to quality legal advice shouldn't be confined to those who can afford it. Tens of thousands of Victorians are turned away from community legal services each year. We believe this is unacceptable.

Learn more:

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Monash Law Pioneers Reception

In March, the Faculty of Law was delighted to welcome back a number of our very first students.

Our pioneering law students, who started studying Law with us in 1964 and the early years, helped create a wonderful legacy of ambition, a pioneering spirit, hard work and community.

In the early 1960s, when our first students arrived, Monash University had a closer resemblance to a farm than a university campus.

Indeed, Clayton campus would now be barely recognisable to many who hadn't set foot on campus in the intervening years.

We welcomed them back to the iconic building where they either started or ended their legal studies, given that Law used the Engineering building at the outset, with a reception in our newly furbished premium facilities on the ground floor at Clayton.

Our pioneers were also treated to a special tour of the Moot Court, and the very welcome surprise of an appearance by video and personal message for them from Emeritus Professor Louis Waller AO who announced, thanks to generous philanthropic support, an endowed scholarship fund in his honour.

The fund honours Professor Waller’s extraordinary contribution to society, teaching and the law. These prestigious scholarships will be awarded to our very best staff and students, enabling them to study both in Australia and internationally.

We are undertaking further fundraising to build the corpus, thus ensuring we can offer a range of meaningful scholarships well into the future.

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Global Legal Hackathon

Earlier this year Monash Law was the proud local host of the Global Legal Hackathon, the biggest legal hackathon on earth, which takes place simultaneously in more than 40 cities around the world. The event was supported by KPMG Legal.

Monash Law was thrilled to welcome over 100 participants who formed themselves into teams to work together over 48 hours to create a tech solution to some of the legal industry’s biggest problems. Tech solutions had to fit into one of two streams: they must either benefit the business and practice of law, or benefit good government, legal systems and access to justice.

The winner of the Monash Law hackathon was team Cynapse (formerly named Classify). They designed a platform to help parties to Class Actions navigate the system and stay engaged throughout the entire process. Their end-to-end platform addresses two key issues associated with class actions: disengagement and costs.

Cynapse were then selected as one of the top ten Global Legal Hackathon teams in the world, progressing to the final round in New York.

VIDEO: Cynapse's video submission which got them through to the finals of the Global Legal Hackathon.

Congratulations and thank you to everyone who was involved in making it a successful and vibrant event.

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Banking royal commission: why not prosecute corporate crime?

By Professor Liz Campbell

Deploying the criminal law in cases of corporate crime may serve to develop public trust in the system by showing that the state is recognising the harm and the gravity of the wrongdoing, writes Professor Liz Campbell, Francine V. McNiff Chair of Criminal Jurisprudence.

I’m glad – if that’s the right term – that I managed to attend one of the public hearings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in the Federal Court building, just around the corner from Monash Law Chambers. Seated in the front row (between two Monash alumni and Rod Culleton, as it happens), I could get a real sense of the significance of what was unfolding.

Of course, I was watching the hearings online and reading the transcripts, but there was something special and visceral about being present, if only for a few hours. Something about the formality of the setting and the process, Commissioner Kenneth Hayne's interjections and expressions, and, in particular, Rowena Orr QC’s questioning, brought home the importance of revealing and interrogating suspected wrongdoing and poor corporate cultures in public.

We all know by now that the Banking Royal Commission unearthed and confirmed systematic, extensive harmful behaviours by banks. Often referred to euphemistically, and legalistically, as "misconduct", the final report concluded that some practices clearly were criminal, though they were neither seen nor pursued as such.

It would be a lost opportunity if the corporate culture provisions, seen as a prototype in the common law world in respect of corporate criminal law, remain untested and unused.

It’s evident that ASIC was averse to litigation, prompting Commissioner Hayne to recommend that “the critical question whenever ASIC is considering any contravention of the law must be … ‘Why not litigate?’”.

ASIC’s preference has been for negotiation and settlement, meaning that the boundaries of the law in this space weren’t tested and that only the rarest, "safest" civil actions and prosecutions pursued. The regulator has been urged to reflect on why not litigate rather than vice-versa.

In the final report, Commissioner Hayne emphasised that “too often, financial services entities that broke the law were not properly held to account”. Though we might think that holding wrongdoers to account can happen in a variety of ways – through this work of the Royal Commission, for instance, or in civil litigation – Commissioner Hayne was at pains to differentiate the paying of compensation from holding to account.

The quintessential and most powerful way we as a society can hold wrongdoers to account is through the criminal process. The reason for this is twofold: the criminal trial involves a distinct procedure, as well as a particular potential outcome. Generally speaking, criminal trials are heard in open court, before a judge and lay jury, with certain due process protections for the defence, and there's an examination of both prosecution and defence argument, with cross-examination of witnesses. And the possible outcome of the criminal trial is unique – the convicted party will be punished, whether through a fine and/or imprisonment, and the label of "criminal" ascribed to them/it.

These are the practical and symbolic consequences of the criminal trial, which demarcate it from other state and individual responses to unlawful behaviour. It’s the absence of this, in respect of both banks and individuals, that Commissioner Hayne is lamenting.

There's a clear conclusion in the final report regarding the criminality of taking fees for no service. In the final report, Commissioner Hayne considers section 1041G of the Corporations Act, which makes it a crime for a licensed bank to engage in dishonest conduct in relation to a financial product or service. He determines that three institutions breached this provision, and has written to ASIC to advise it of this. There were no other firm determinations regarding criminality.

Commissioner Hayne alluded to Part 2.5 of the Commonwealth Criminal Code, which enables a corporation to be held criminally liable for an offence through proving that a culture existed within the corporation that directed, encouraged, tolerated or led to non-compliance with the relevant provision, as well as through the conventional attribution model of liability that has proved problematic in practice.  However, Chapter 7 of the Corporations Act excludes the culture provision from application to finance offences. This means that Part 2.5 does not encompass individual directors or senior managers, even if they presided over a problematic corporate culture.

Lost opportunity

Given the close focus in the Royal Commission hearings and the reports on the role of culture in permitting and engendering dubious and criminal behaviour, it would be a lost opportunity if the corporate culture provisions, seen as a prototype in the common law world in respect of corporate criminal law, remain untested and unused, and unavailable for certain offences.

Linked to this, and in response to the final report, the federal government has announced that it's extending the jurisdiction of the Federal Court to cover corporate criminal misconduct, so as to expedite cases that are considered by state courts and commonly take more than two years to be heard. And the Australian Law Reform Commission (ALRC) is undertaking a comprehensive review of the corporate criminal responsibility regime, so further change is likely.

New tool for misconduct

An important and relevant change on the horizon in relation to corporate crime is the likely introduction of deferred prosecution agreements (DPAs) by means of the Crimes Amendment (Combating Corporate Crime) Bill 2017. DPAs are negotiated settlements that allow the Commonwealth DPP to intervene and impose conditions on a corporation for criminal behaviour (such as under s1041G, as mentioned earlier), while permitting the corporation to make reparation without the collateral damage of a conviction, which may unduly impact on employees and shareholders.

DPAs are seen as quicker, cheaper and more predictable than the conventional criminal trial with its costs, risks and delays. They allow conditions to be imposed on banks and companies, which might be helpful looking forward in preventing future harm and in improving culture.

DPAs are seen as quicker, cheaper and more predictable than the conventional criminal trial with its costs, risks and delays.

That said, DPAs centre on negotiation and agreement with corporations, which take place behind closed doors, so the exposure of wrongdoing is lessened. Regardless, DPAs will provide a tool in responding to corporate crime in Australia. Indeed, extra funding has already been allocated to the Commonwealth Director of Public Prosecutions to prosecute cases of financial misconduct.

Trust is visceral – intuitive, ephemeral, hard to define and quantify, but by now sadly lacking in the financial system and its institutions. And while deploying the criminal law more robustly might not restore trust in the banks, it may well serve to develop some trust in the wider sense that the state is recognising the harm and the gravity of the wrongdoing.

An earlier version of this article was first published on Monash Lens. Check out the full text of Professor Campbell's presentation on deferred prosecution agreements (DPAs) in her inaugural Francine V. McNiff Lecture, Trying corporate actors – why not prosecute? The lecture recording and highlights are available here.

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Company directors brace for a perfect storm

By Professor Bryan Horrigan

The ripple effects of the Hayne royal commission are spreading from banks to business generally. Corporate boards and in-house counsel are looking for clear guidance on what to do.

Some industry players are slow to recognise the approaching perfect storm. There are some clear steps that all corporate boards should be taking now. Profound changes are afoot. No one yet knows the perfect antidote to the breach of trust that customers, shareholders, and communities are feeling. Meanwhile, calls for business action on climate change and social responsibility refuse to go away. Climate risk management and disclosure is in the eye of the perfect storm facing directors. However, other things are in the mix too, so holistic approaches are needed. Regulatory and business attention is refocusing on every company’s intertwined legal, economic, and social licences to operate. Even the famous advocate of shareholder value, Milton Friedman, accepted that corporate profitmaking operates within boundaries of business ethics, legality, and fair competition, as reinforced by Hayne’s findings.

Corporate regulators are cashed up and eager to pursue the tougher Hayne-endorsed ‘why not litigate?’ approach. More prosecutions, test cases, class actions, and strategic litigation are just part of the approaching perfect storm that is worrying Australia’s boardrooms.

Banks and companies generally are struggling to understand what pursuing shareholder value means in that environment. Hayne has blown unethical and illegal behaviour, lax oversight, and profitmaking at all costs out of the water —but what will take its place? Creating sustainable value for a business requires attention to environmental, social, and governance drivers of that business over time. In that sense, ESG is the new route to shareholder value. Its full potential is yet to be realised.

For example, Blackrock chief executive Larry Fink has affirmed the importance of every company’s social licence to operate. He calls for “a new model of shareholder engagement” that properly integrates environmental, social and governance matters in investment. In other words, sustainable profitability for business enterprises that seek investment and regulatory moderation now turns significantly upon how they respond to the preconditions for sustainable economies, communities, and environments.

Business action on climate change must be understood within that broader global concern for sustainability, and how various regulatory ducks are lining up behind it. No business can ignore the new global coalition in favour of regulatory action and corporate disclosure on climate change risks. That coalition includes the Climate Action 100+ Group, UN Principles for Responsible Investment signatories, and others responsible for multi-trillion-dollar investments, as well as a line-up of Australian regulators including the Reserve Bank, ASIC, APRA and the ASX. While changing the form but not necessarily the substance of controversial requirements about a company’s “social licence to operate”, the ASX Corporate Governance Council has affirmed the importance of social and environmental risk management and disclosure in its updated standards for listed companies. At the same time, climate change disclosure is amplified.

In a landmark 2016 legal opinion, two Australian barristers belled the cat on how and why Australian company directors risk breaching their directors’ duties if they ignore or mismanage climate change risks. Subsequent actions from financial and corporate regulators underscore the correctness of that opinion by Noel Hutley SC and Sebastian Hartford Davis. Recently, those barristers issued a supplementary legal opinion, unequivocally affirming

and extending their original analysis.

According to their latest opinion, advances since 2016 in scientific knowledge, public concerns, investor expectations, and regulatory standards on climate change “elevate the standard of care that will be expected of a reasonable director”. They warn that climate risk disclosures “will attract increasing scrutiny”, and that “the exposure of individual directors to ‘climate change litigation’ is increasing, probably exponentially, with time”.

Their three-pronged “monitor, manage and respond” advice to company directors on climate change is to “consider climate change risks actively, disclose them properly and respond appropriately”. They conclude that courts will view climate changes risks as reasonably foreseeable for liability purposes, and that such risks therefore “require engagement from company directors in affected sectors”, including the banking, insurance, transport, construction, and agriculture industries.

What should Australia’s boardrooms do, in the wake of this advice? First, Australian boardrooms do not have the luxury, legally speaking, of being climate change sceptics or deniers. The jury is in on that issue. Company directors and their lawyers therefore ignore both legal opinions at their peril, at the risk of their professional indemnity insurance. The agenda papers for upcoming board meetings should include reference to both legal opinions, because the climate risk issue is that pervasive and important.

Secondly, companies need to reimagine both their corporate purpose and their approach to corporate governance through the lens of ESG considerations, including the specific physical, transitional, and regulatory risks of climate change for their industry and business. Doing so is now mainstream corporate governance. The latest edition of the ASX Corporate Governance Council standards simply reinforces that result.

Thirdly, directors and their advisers should become familiar with ESG guides, climate risk disclosure frameworks, and associated integrated reporting requirements that are quickly gaining traction in Australia. At the very least, boardroom and corporate training should cover the leading standards mentioned in the latest edition of the ASX CGC standards on corporate governance, including importantly the work of the Taskforce on Climate-Related Financial Disclosures.

Finally, all companies need to examine the skill sets they need in their board membership, beyond conventional industry experience and technical expertise, to cope with the transforming regulatory and business landscape. Companies that take these steps can future-proof their business model and minimise exposure to strategic litigation. They can also improve investor and customer relations, stakeholder management, organisational decision-making, and in-house training.

Professor Bryan Horrigan is Dean of the Faculty of Law at Monash University. 
This article was originally published in The Australian.

High Court delivers landmark ruling validating abortion clinic ‘safe access zones’

By Dr Caroline Henckels, Dr Ronli Sifris and Dr Tania Penovic
The High Court of Australia has handed down a judgment upholding Tasmanian and Victorian laws that created “safe access zones” around abortion clinics. The Court held that both laws were constitutionally valid. A team of Monash Law academics from the Castan Centre for Human Rights Law - Dr Tania Penovic, Dr Ronli Sifris and Dr Caroline Henckels - was instrumental in this decision.  They were given leave to appear as amicus curiae ("friend of the court"), and their submission was cited by Justice Nettle in his judgment. Dr Penovic, Dr Sifris and Dr Henckels explain the High Court's judgment.

The High Court of Australia handed down a judgment on April 10 that upheld Tasmanian and Victorian laws that created “safe access zones” around abortion clinics. The court ruled the laws are constitutionally valid.

Safe access zones prevent anti-abortionists from targeting patients, staff and others within a specific radius of abortion clinics. They protect the privacy, safety and dignity of women accessing health care. Safe access zones now operate in all Australian jurisdictions, except South Australia and Western Australia.

The current case stemmed from two appeals to the Victorian and Tasmanian laws. The challenge to the Victorian law was brought by Kathleen Clubb, who approached a couple within the safe access zone and tried to hand them an anti-abortion leaflet. She was found guilty of engaging in communication about abortion reasonably likely to cause distress or anxiety within the safe access zone.

The challenge to the Tasmanian law was brought by John Preston, who was found guilty of engaging in a protest about abortion within the safe access zone by displaying anti-abortion placards, one of which depicted a foetus.

Clubb and Preston both argued that the law was invalid because it impermissibly burdened the freedom of communication on governmental and political matters that is implied in the constitution.

The High Court unanimously rejected both appeals

All judges agreed that the purpose of the laws – to protect women’s rights to health, safety, privacy and dignity when accessing abortion services – was a compelling objective that was compatible with the Constitution.

In relation to the Victorian law, the judges found that it had not been established in the Magistrates’ Court that Clubb’s actions were political in nature. Nevertheless, four of the seven justices held that any restriction on political communication in the Victorian law was constitutionally valid.

All judges agreed that Preston’s conduct was political communication, and found that the Tasmanian law was valid.

The judges unanimously affirmed the importance of the laws. Justice Nettle, for example, said that:

women seeking an abortion […] are entitled to do so safely, privately and with dignity, without haranguing or molestation.

Chief Justice Kiefel and Justices Bell and Keane delivered a joint judgment, which noted that the aim of safe access zone legislation was to protect the right of women to access abortion clinics, rather to punish those who interfere with women seeking abortions.

Restriction on political communication

The judges had differing opinions about how much the laws restricted political communication. Four judges (Chief Justice Kiefel and Justices Bell, Keane and Gordon) found that the burden was “slight”, “minimal” or “insubstantial”.

The law regulated only the time, place and manner of the conduct. People could engage in the same conduct at other times and places.

Although three judges (Justices Gageler, Nettle and Edelman) thought that the law’s impact on political communication was significant, these judges agreed that the importance of the law outweighed its impact on political communication.

Laws creating safe access zones are valid

Six of the seven High Court judges now use a technique called “proportionality analysis” to determine whether a law that limits political communication is valid.

Briefly, this approach requires judges to determine:

  • whether the law is rationally connected to its objective

  • whether there are any “obvious and compelling” alternative ways of drafting the law that restrict political communication to a lesser extent

  • whether the law adequately balances the competing interests at stake.

One factor that the judges considered was the size of the safe access zone, which both laws set at a 150 metre radius.

Justice Edelman, for example, decided that a smaller zone would not be as effective. Justice Edelman said it was not the court’s role to decide whether, for example, the zone should have a radius of 130 or 120 metres. Rather, this was a decision for the “parliament as advised by stakeholders, experts, and committees”.

Some of the judges observed that the Victorian law restricted political communication to a lesser extent than the Tasmanian law, in the sense that the conduct needed to be “reasonably likely to cause distress and anxiety”. But the judges decided this did not mean that the Tasmanian law was unconstitutional.

In this respect, the judgments recognise policy choices like these are for parliament to make, and not the courts.

The High Court has unanimously affirmed that safe access zones comply with the Constitution. The decision makes it clear that the freedom of political communication is not a license to infringe women's rights to access lawful medical services with safety, privacy and dignity.

The Court’s decision should reassure the South Australian and Western Australian governments that there is no constitutional impediment to enacting safe access zone legislation. We hope that 2019 will mark the end of the long history of harassment of women accessing abortion services.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Moot Court shortlisted for design award

Monash Law's Moot Court has been shortlisted for the 16th annual Australian Interior Design Awards.

The court, designed by Jackson Clements Burrows Architects, is up for an award in the Public Design category.

The Moot Court is a state of the art multi-functional facility, best-in-class for:

  • Clinical education
  • Public lectures
  • Teleconferencing
  • Witness training
  • Training in use of paperless courts.

You can take a 3D tour of the Moot Court here.

The winners of the Australian Interior Design Awards will be announced at a gala event on May 31st.

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Making headlines

Monash Law academics have been in the news a lot this year. Here's a selection of some recent contributions to important public conversations.

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