The trouble with the McGlade amendments to the Native Title Act

Lump-o-coal

The dominant discourse in native title amendments is that of … coal?

In June 2015, the Australian Law Reform Commission handed down its final report into the Native Title Act. Amongst its recommendations was the amendment of provisions for the process of authorising Indigenous land use agreements (‘ILUAs’).

Coinciding with the ALRC Report, the Northern Development White Paper proposed a fund to settle all native title claims within a decade.

There has been no response to either the Report and the White Paper that might indicate just how native title processes might be improved, let alone settled, in the short or medium term. All of a sudden however, native title reform is back in vogue. But the heat of debate over proposed changes to ILUA authorisation masks what is at stake.

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‘Add tech and stir’ is no recipe for innovation

AddTech.pngMy previous post gave an overview of the Law Society of New South Wales’ flip Report, on the future of law and innovation in the profession. My overall impression is that the Report might provide a useful and very gentle overview of the road ahead, but fails to engage in any real sense with the way in which technology will – and already is – changing law and legal practice.

Nowhere is this more apparent than in the chapter devoted to legal education. This poses a real limit on the possibilities for innovation – especially to the extent that regulatory bodies are likely to accept the Report’s statement that existing knowledge and skills must remain.

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A roadmap for the legal profession: flip

Robot Lawyer

‘The robots are taking our jobs!’*

The Law Society of New South Wales (‘LSNSW’) has recently released its flip Report (the Future of Law and Innovation in the Profession). Through submissions and a series of hearings between May and November 2016, the Futures Committee has provided the profession with a readable overview of the contemporary environment for the practice of law in New South Wales. And, I dare say, in the rest of Australia and probably beyond.

 

The Report responds to the exponential rate of change faced by the legal profession, notably through the advent of new technologies. It provides not only a series of key findings, but also a series of recommendations concerning the role of the LSNSW in supporting innovation in the profession.

In this post I provide some initial thoughts on the overarching approach of the Report.

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When should an MP claim expenses?

MPs are currently battling public perceptions of their use of parliamentary entitlements. On the radio this morning, the Trade Minister effectively told listeners that it was the core business of MPs – and ministers in particular – to use the entitlements system to attend corporate boxes at high profile sporting events where public companies showcase themselves.

Parliamentarians talk of reform to the system, but sadly, the lack of action reveals the pervasiveness of entitlement gratification.

To assist MPs in understanding whether an event warrants a call on the public purse, I have designed this modest flow chart.

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Centrelink, leaners, and the cyber

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The Australian government’s harassment of tax payers through its Centrelink data matching system is now well-documented. (See eg my own posts, here, here and here.) Yet today the Minister, Alan Tudge, again came out in defence of the system saying that ‘it is working and we will continue with that system’.

Accepting widespread criticism of the Centrelink robo-debt program, the question is whether it is a clever application of technologies to prosecute an ideological agenda, or further evidence that government does not cyber very well.

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Centrelink: A failure of government

arrows missing target

Centrelink is the latest government IT-dependent scheme to miss the target

Over the last couple of months, #Centrelinkfail has gained momentum as a news story. We knew from reports in 2016 that the Department of Human Services was introducing a data matching system that would check social security payments against tax records. But over Christmas, what began as a trickle of reports of incorrect allegations of debt, debt collectors, and tales of personal crisis turned into a flood.

Meanwhile, the government continues to defend the system, ‘confident’ in its operation.

Today, the former head of the government’s Digital Transformation Office, Paul Shetler, has commented on the government’s succession of IT failures – including #censusfail and Centrelink – describing them as

“cataclysmic” and “not a crisis of IT” but a “crisis of government”.

The Centrelink debacle – in particular when viewed together with the government’s other ill-conceived attempts at implementing digital services – demands an urgent and radical rethink about the nature of process of the exercise of state power in the face of pervasive digital technologies.

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Blockchain: is it the next big thing

Image result for accounting ledger book

Old school ledger

I will start by answering the question in the title: I don’t know.

This post is directed principally at lawyers and legal academics, arguing that whatever the trajectory of Blockchain technology, it is sufficiently significant that we must attempt to understand it at some level at least to think critically about its potential implications.

Some lawyers, principally in Big Law firms with a large banking and finance client base, are deeply engaged in Blockchain including to suggest that it will open new fields of practice. Other lawyers understand but dismiss its potential. In my experience however, the majority is unaware of its existence or cannot really say what it is. This latter position is fair enough, because in my view it’s not easy to find a simple explanation that lacks breathless proclamations of a new world order.

I’m a newcomer, having bitten the bullet after I observed ‘chatter’ about Blockchain had reached a tipping point. In my social media feeds, in recent months it has moved from random mentions (innovators) to dedicated early-adopter status even reaching mainstream media… This must surely mean that it’s time for lawyers to become conversant in the technology and its possibilities (and limitations). This post is a low-tech overview of some of the issues, from a lawyer’s perspective.

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Two former PMs and failure of ‘cultural competency’

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Swans are necessarily white only if you display a lack of critical thinking

I have just spent a stimulating and inspiring two days at ANU College of Law in a consultation workshop as part of an important research project into Indigenous cultural competency for legal academics led by Marcelle Burns of UNE. The project is funded by the (now sadly defunct) Commonwealth Office of Learning and Teaching. This is a project of substance, and of national importance. The standing of the project leaders and those who participated in the workshop is testament to this.

 

I emerged from this overall positive discourse to news that former Prime Minister John Howard found ‘appalling’  the idea of a treaty with Indigenous Australians, and that former Prime Minister Tony Abbott dismissed a treaty out of hand. In the first place, Mr Abbott said, a treaty is entered into between two nations – I suppose he means that as a definitional question this is a logical impossibility, for Indigenous Australians hold no seat at the UN (incidentally an institution of which Mr Abbott does not approve). In the second place, Mr Abbott said that going down the path of treaty would spoil the chance for constitutional recognition of Aboriginal and Torres Strait Islander Australians.

These two comments offer a case study in the very issues that occupied our thinking in the workshop. How could it be that two men could rise to be Prime Minister of Australia, senior lawmakers, with such an abject lack of the knowledge, skills, and attitudes that sound in inter-cultural competence – a necessity for all professionals but in particular for lawyers.

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The global lawyer

The legal profession has been concerned for some time with the capability of law graduates for transnational practice. While much of the discussion in the context of the Australian legal profession has centered on knowledge, for example of private international law, there is inevitably an array of skills and attitudes that must accompany such knowledge to develop what might be called the global lawyer. This post teases out what those skills and attitudes might look like.

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Say no to sexist language in public discourse

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In the week that brought to light television personality Eddie McGuire’s ‘banter’ about sports journalist Caroline Wilson, the voters of Leichhardt, have been treated to campaign signs depicting a witch. The signs have been placed adjacent to campaign signs of the only woman candidate in Leichhardt, ALP candidate Sharryn Howes.

The signs themselves entreat the voter to ‘put Labor last’ because winding back negative gearing is a ‘wicked thing to do’.

The incumbent MP Warren Entsch, who authorised the signs, has ‘angrily denied’ any comparison between his signs and the notorious ‘Ditch the Witch’ signs used in rallies in 2011, attended by former Prime Minister Abbott.  According to reports, Mr Entsch has said

“It has nothing to do with anything else. We think its a wicked and awful thing to do for small time investors.”

“I didn’t select the image and it has nothing to do with anything else. Anyone who knows me knows those claims are absolute bullshit.”

With respect, whatever Mr Entsch’s views, the LNP’s views, or the voter views of negative gearing and small time investors, it is not OK to use the language and imagery of witches about women. The implication of the image of the witch, deliberately positioned adjacent to Ms Howes’ campaign corflutes, is to invoke the comparison.

Today is not the first time I have written about witches. In fact, early this year I offered some advice for parliamentarians that warrants repeating:

‘Witch’ is a term used to denigrate women. It represents a woman who has outgrown her sexual utility, often imagined as a toothless old crone. It might also represent the threat women pose to patriarchy – through the magicke of their sexual wiles and fertility, the witch stands ready to trap unwary men. The vast majority of those burned as witches were women. That is no accident. It was an effective means of keeping women in their place.

Today, ‘witch’ carries its anti-women history even though many who use the term may not be conscious of it. As a word not used against men, and in light of the negative connotations it carries, use of ‘witch’ is sexist.

Advice to parliamentarians: find a different word without the sexist baggage.

The signs themselves go so far as to say ‘unfortunately , unlike the movies we can’t get rid of them by pouring water on them’. They express disappointment at a general inability to keep witches – women – in their place.

I accept that there may be an intent to express a desire to keep the ALP in ‘its place’ ie out of government. Sadly however, the clumsiness of the analogy and the language used instead conveys the time-worn expression of antipathy towards women. Women should not have to face sexist language. Women candidates for political office should not face sexist harassment in the course of doing so. We can be better than this.

Many will reject this interpretation. The metaphor is so deeply ingrained in our sexist culture that we have become immune to it. But let’s aspire to a higher level of discourse, that seeks actively, consciously, to deal with the issues without resorting to historical gendered slurs.

Even if Mr Entsch does not himself see the connection between the sign he authorised and the sexist implications for his opponent, he is now on notice that the posters sexist, and that many perceive them to be sexist. He is therefore in a position to step up, and to have the posters removed. That would be a fine contribution to public discourse.