Saturday, 17 November 2018

Australian Bar Association and NSW Bar Association Biennial Conference International Convention Centre Darling Harbour, Sydney

Speech

E&OE

Good morning and thank you for that kind introduction.

Acknowledgments

May I begin by acknowledging the Gadigal people of the Eora nation as the traditional custodians of the land on which we meet.

I would like to thank Mr Noel Hutely SC, President of the Australian Bar Association and Mr Tim Game SC, President of the NSW Bar Association for the invitation to address you this morning.

Members of the judiciary and esteemed members of the profession.

Introduction

We all live in a time of immense change.
When I think of change my mind is drawn back often to a passage from a favourite book,

Evelyn Waugh's Brideshead revisited.

The scene is at an engagement party between Lord Marchmain's daughter (Julia) and Rex Motram; a wealthy but boorish Canadian entrepreneur.

The scene is relayed by the narrator Charles Ryder, who much later describes his own fate as that of being homeless, childless, middle aged and loveless.

Rex has given Julia - a present of some significant novelty.

Charles Ryder describes it this way:

  • It was a small tortoise with Julia's initials set in diamonds in the living shell, and this slightly obscene object,
  • now slipping impotently on the polished boards,
  • now striding across the card table,
  • now lumbering over a rug.
  • Now withdrawn at a touch, now stretching its neck and swaying its withered, antediluvian head, became a memorable part of an evening,
  • One of those needle-hooks of experience which catch the attention when larger matters are at stake.

I love the language.

But the point of reading the passage it not the language but the context – it's the larger matters at stake

While everyone is looking at the tortoise; Julia is about to enter into an ill-judged marriage, her brother Sebastian is fast approaching a self-inflicted death from alcohol.

AND the grandeur of the British aristocracy obscures the inevitability of the impending horror and global reordering of Second World War - which will scatter the Marchmains' extravagance and end Britain's hegemonic prosperity for ever.

The book is about many things BUT centrally for me it tells a story of how THE truly important things at stake in your life and your society can be very easily obscured.

AND in times of change it is often past SUCCESS and the self-satisfaction that accompanies it - which can be obscuring.

We are very used - AS AUSTRALIANs – to success.

Obviously, I am not proposing that the lawyers or Australians generally engage in that gluttony of the finer things that Evelyn Waugh was describing – few people here have boater hats and estates with diamond encrusted tortoises lumbering across your floor.

Australia of course is imperfect BUT After 26 years of continuous economic growth a record in the history of modern economies - young AUSTRALIANs are the only generation in modern history that have never lived through a recession let alone a full blown economic downturn.

That growth has brought jobs and high standards of health, education and social support – standards of living far beyond that existing in most other countries on earth.

That type of success combined with all the shallowness and nasty shallowness of the modern Twitter cycle where minor issues are given the major treatment by hyperbole and repetition - means in public policy it can be hard to see or difficult to explain the truly important issues, risks and threats that necessarily accompany the opportunities inherent in times of rapid change.

Change for Legal Profession

The dangers in failing to identify and comprehend the need make or prepare for important changes – is not just a difficulty of modern politics.

Quite clearly the Australian legal profession like many Australian business sectors has enjoyed and worked hard for very considerable success in modern Australia.

But it would be foolish to conceive of some form of immunity for our profession from the rapid change around us.

If I had to nominate the single biggest issue facing the profession – it would be an issue dealt with in a recent University of Melbourne paper that highlighted the reality of increasing use of automated legal advice to reduce costs and open-up latent markets.

This type of technology offers remarkable opportunities particularly in the context of current debates around enhancing cost efficient access to justice.

But ALA also highlights enormous challenges to historically very successful market incumbents across the legal industry as technical legal expertise becomes increasingly open to automation.

For legal practice in Australia the very real looming question of how we harness and manage Artificial Intelligence in the provision of legal advice will be the most important next question for us as practitioners.

Regulatory and governmental issues in this area are in a sense secondary; in that the primary FORCE of this change will be felt by and require the adaptation of the profession itself.

These are many interesting issues being considered at this conference but I had an observation it would be that as curious as the session entitled day in the life of an Attorney General that may offer a little space for a session next year on the impact of emerging technologies and the law and specifically advice drafted through AI.

Identifying the need for changes

Identifying the truly important issues and the key needs for change in professions or policy is not easy.

Before becoming AG, as Social Services Minister (with a very close working relationship with Alan Tudge, then Human Services Minister); in a 150Bn worth of welfare expenditure funded by the taxpayer there were no shortages of issues to deal with.

So we went through an early process of identifying precisely what we considered to be biggest issue facing the portfolio.

Amongst the many we identified (with significant reliance on long term data sets); that the most important issue in the welfare system was the too many people being unnecessarily welfare dependent – and the intergenerational dependency that this gave rise too.

So we engaged in a coordinated range of administrative reforms culminating in a complete structural re-write of the nation's social security laws (turning seven payments into one Jobseeker payment with a completely new simplified welfare compliance system).

Everything was directed at the single problem we had identified, and building on the work of previous Ministers; that portfolio has seen the lowest rate of welfare dependency in Australia since 1980 and seen 150,000 people move from welfare into work – making for better lives and brighter futures for young and older Australians alike.

In trying to discern what is more or less important – I wanted to speak briefly today about what I perceive to be the two most important recent reform issues in my portfolio.

One in national security and one in domestic law.

National Security Reform

In the National Security environment there is sadly again no shortage of threats.

But this is how the Head of ASIO, Duncan Lewis described a core problem we face.

"Hostile foreign spies are currently conducting harmful activity against Australia on an unprecedented scale ….. cheap and easy international travel, globalised communication technologies, and the global trade and finance systems that we take for granted in our modern society have also opened the door for hostile foreign spies, and they are, necessarily, ruthlessly exploiting these vectors to covertly harm our Australian interests .... espionage now ranges from its classical form — early John Le Carre stuff, if you like—to what is now complex cyber intrusion that's conducted typically from overseas to enable the theft of sensitive technologies"

So in the first 6 months of my stewardship of the AGs role - the decision was to deal as quickly as possible with two pieces of legislation.

The Espionage and Foreign Interference Bill and the Foreign Influence Transparency Scheme Bill.

The first Bill was a complete redraft, for the first time since the 1970's, of all the Commonwealth's existing criminal offences for espionage, sabotage, treachery and treason so that they were fit for purpose.

It critically creates a new series of foreign interference offences which will not rely on a BRD intention that a foreign actor intended to specially damage Australia's national interest by an act of modern espionage.

Rather foreign interference will be criminal conduct where any person on behalf of a foreign principle uses deception to influence a political or governmental process – such as an election or other vote.

The second Bill - creates a requirement for people to publicly register when they are undertaking certain activities on behalf of a foreign government, political organisation, or a person or organisation that is closely connected to them.

The offence of foreign interference is meant to proportionately criminalise conduct which is harmful because of its inherently deceptive nature - the foreign influence register is meant to provide transparency of conduct that in most instances is not inherently harmful (but which can be if conducted in secret).

Every embassy in the world is established for the purpose of foreign influence.

It's when that influence is carried out in a way designed to be secret that it risks undermining democracy.

For example – if a former politician decided to use his or her position as a leader in public policy to write an opinion piece critical of any government policy – that would be entirely appropriate.

If that former politician was being paid by a foreign government or political party to write that opinion piece, utilising their position and reputation to give credence to a view that ultimately was being advanced by a foreign power – then that connection is not inherently wrong BUT it should be publicly known.

Likewise if lobbyists, consultants and media professionals are advancing a view on behalf of a foreign principal then that connection should be readily knowable.

The threat these substantial legal changes are designed to combat should not be underestimated.

For instance, it is now an increasingly common practice in modern democracies for advocacy groups to use anonymous twitter accounts - flooding Twitter with demands for boycotts of certain media outlets or companies.

Calling for a public boycott itself is a traditional method of influencing democratic outcomes, but what is fundamentally deceptive about the modern practice is the use of anonymous dummy twitter accounts designed to exaggerate the real level of support of the group calling for the boycott.

At a purely domestic level this sharp practice is bad enough, but there is considerable destructive potential for this sort of campaigning to insert itself into our democracy at the hands of foreign principles who are not actually motivated by the desire to effect an outcome of a political type, but are trying to affect the ultimate outcome of weakening our democracy outright.

The Robert Mueller indictment in the United States of Russians accused of interfering in the 2016 presidential election depicts behavior as dangerous to a democracy's as it was audacious.

That indictment alleges that the "Internet Research Agency"

  • was funded by a Russian oligarch with close ties to Vladimir Putin specifically for the purpose of interfering in US electoral and democratic processes
  • employed hundreds of people
  • created false US personas and stole identities to pose as US persons;
  • operated social media accounts, pages and groups designed to attract US audiences and
  • used sophisticated data analysis and social media to deliberately and strategically undermine candidates and institutions.

Operatives for the organisation are alleged to have obtained US visas and travelled across the US collecting intelligence in order to create social media groups and profiles designed to seed discord and division on what their intelligence told them were contentious political issues.

They created fake accounts spreading misinformation, with some pretending to be state branches of political parties, including one pretending to be the Tennessee Republican Party, which had more than 100,000 online followers.

All of this was by the end underpinned by a budget of $1.25m USD per month – a huge amount of resourcing in campaign terms.

The indictment demonstrates that this methodology is not about benefiting particular political sides in a democratic system - most fundamentally it is about achieving the end of damaging the operation and therefore public faith in the entire system.

SO for instance in November following the election, on the same day in New York City the same Russian actors organised one rally to "show your support for President-Elect Donald Trump" and another called "Trump is NOT my President" – so pro and anti Trump rallies organised by Russian agents in the same city on the same day.

With the passage of these laws Australia is now legislatively prepared for this type threat when rather than if it arrives.

Family Court Reform

The domestic issue of importance I wanted to close with today is the reform of the courts dealing with family law cases.

Where the importance of the National Security Reforms related to a need to adapt to a rapidly changing threat environment.

The need for reforms to the family courts system arises because so many people experience a court system which has not changed for so long but which has been long accepted as structurally flawed.

For almost 20 years, family law cases in Australia have been split between two courts.

Originally the FCC did 20% of family law matters. Now it does 80% – a trend which shows no signs of abating.

The result of this split is that now the FCC has the greatest concentration of specialist family law judges in Australia - 41 specialist family judges EACH with an average of 25 years in family law.

The NSW Bar Association sums up the present state of affairs by saying "we agree with the Government that the experiment of sharing jurisdiction between two federal courts and running family law matters in separate courts with separate rules and procedures has failed".

This central and pervasive structural problem has been the subject of extensive consultation and reporting for 10 years.

Both I and my predecessor, following the endorsed process for consultation between government and the judiciary required by the Guide to Judicial Conduct, consulted exhaustively over more than 12 months with the heads of each jurisdiction - the Federal Court, the Family Court and the FCC.

Ultimately we chose the least radical and most cautionary approach.

The new proposed structure is for the existing two Courts to be merged and preserved as divisions inside a reformed management structure that allows a single point of entry with requisite assessment and triaging of applications of individual matters to individual judges.

With family law appeals from the new merged court (and Family Court of Western Australia) to be heard in the new Family Law Appeal Division of the Federal Court.

This structural change described above clearly is less radical than other alternatives that because it does not abolish any existing Court.

Professor Patrick Parkinson has described the structure Government's, as "very sensible".

This new structure critically provides for the single leadership and management of both Courts by a Single Chief Justice and Single Deputy Chief Justice.

And the critical feature of these reforms is that they will enable the court itself to achieve the key improvement that has eluded our Family law system for 20 years.

THAT being a single – unified – clear and simple – consistent set of - Court rules, practice notes and directions AND case management, practice and procedures.

The Government recognises that this project of consolidating Court Rules is properly the domain of the Courts.

What we are seeking to do is simply create the unified structural administrative and management environment that will allow this to happen.

While the unified court rules is a court led process the observation I would offer is that THAT new COURT RULES - will need to pay great attention to devising a single effective point of entry into the new merged structure; where there is no wrong door for litigants.

AND for the first time provide a thorough early, accurate and detailed triaging of individual matters.

In having read in detail all of the data analysis of a wide range of reports, on the court structure issue one issue struck me as both perplexing and revealing.

IN comparing one Court to another there was OF COURSE clear recognition that the complexity of matters dealt with between the Family Court and FCC was different.

And that some variations could be explained by that differential.

Ultimately, the view taken by PwC was that while there are recognised differences in complexity did not explain the large extent to which output in final order resolutions differ between each court.

BUT What I found most interesting in this process was that for a dual court system that relies fundamentally on early assessment of case complexity to drive allocation (and reallocation) between two courts – the method for assessing complexity has been so rudimentary.

This is not a criticism of Judges. It appears to me that this is the product of a long standing dual rather than unified management, registry and listings system.

I was expecting something on excel - a detailed multifactor analysis weighted to produce measures of complexity based on a list of salient criteria (of which estimated trial length would be just one).

In operational reality, allocation is driven by an estimate of the possible length of a future trial.

If the estimate is for more than 4 days it is allocated to the Family Court. If less than 4 days, it is allocated to the FCC.

The central problem is that for a dual system underpinned by an early assessment of complexity the estimated length of a possible future trial is a very unsophisticated proxy for complexity.

For instance, in a recent document that was co-authored by a small number of Family Court Judges, they offered a central rebuttal to the data – based on their assertion that the Government had somehow overlooked that the average length of a trial in the Family Court is 4.5 days.

That argument that differences in finalisations could be explained wholly by differences in complexity might have been more plausible if the Judges document itself contained an accurate statement of average trial length.

BUT the average length of trial in the Family Court in 2016-17 was 3 days – not 4.5 days (It is only the top 25% of cases in the Family Court that have a trial greater than 4 days)

So, oddly, the Court whose mandate is to be dealing with matters longer on average than 4 days, actually deals with matters whose average trial length is 1 day short of that marker.

Ultimately noting that finalisations in the Family Court were lower than those in the FCC even taking into account trial length (which is a poor proxy for complexity but the best measure we presently have): is not meant as a criticism of judges.

Rather it indicates that a failure to unify the court structure and leadership appears to have been the hard barrier to a single set of rules and single point that will allow for appropriate assessment of the complexity of matters that would ultimately allow for better case management, which in turn will mean that risks are more easily identified and managed, and families with complex needs receive the support and assistance they need to resolve their disputes.

Conclusion

By way of conclusion I wanted to end with a comment by His Honour Justice Thackray.

Fair to say His Honour is not a fan of the reforms I have just described and he said recently said about the Reforms that, "we should be wary of law reform driven by statistics produced by firms of accountants in the guise of measuring or quantifying the productivity of the courts."

As a fellow Western Australian I know and respect His Honour and so elegantly written was his sentence I had to read it three times to work out if it was criticising me or the PwC Report I commissioned.

In the end I saw it criticised both.

But one thing I must differ on is the notion other professions, particularly, the data and management based profession have less rather than more to tell us as modern lawyers.

I mentioned earlier the volume of family law has steadily increased to the FCC since its formation almost 20 years ago.

Something fascinating that the PwC Report found was that that trend has accelerated rapidly in recent times.

In 2015-16, the Family Court had around 3,000 matters filed for final orders; one year later it was 2,750.

That is a very significant decrease in a 12 month period and it represents court users and counsel making choices about where to try and have matters heard and resolved.

There can be no real complaint about this year-on-year comparison not being a like-for-like comparison - the complexity of cases coming into the same court WE would not expect to change significantly from year to year.

Usually, when workload decreases, output, measured in finalisations, should increase. However, here, the reverse occurred and finalisations also dropped from about 2,950 to 2,750.

This is a significant driver of increasing backlogs in the family law system.

Again, this data is not a criticism of one judge or type of judge over another – It's a systemic observation about the confusion and complexity of having two systems operating in one area of law.

But what this graph demonstrates is that data based reports are valuable because they tell policy makers new things.

The PwC Report estimated that through the common structured case management process that will result from the Court merger, up to 3,000 additional family law matters will be finalised each year.

If that seems a lot, consider that the in the FCC in the last 9 months the His Honour Justice Alstergren's has achieved and extra 1,107 finalisations through better management of matters.

If there is a realistic ability to finalise thousands more matters each year inside existing resources by merging the courts then the best reason for supporting this reform is that this represents improved outcomes for thousands of Australian families - more families being in a position to move on with their lives much quicker than they can at the moment under the present structure.

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