Marque Lawyers acknowledges the Gadigal of the Eora Nation as the traditional custodians of the land we now call Sydney.
QUARTERLY IMPACT STATEMENT Law, done differently. January - March 2022 Emma Stenhouse 'WALK TO THE WATERHOLES' Emma Stenhouse is taking the first steps on her journey in belonging and becoming connected with her Ngarrindjeri heritage. An emerging artist, her work is predominantly inspired by nature and connection to country, using elements of contemporary art and traditional iconography. Emma ignites the flame of love for Country in other hearts and minds. A multifaceted creative, she explores diverse practices. Each of Emma's pieces are a platform of cross cultural exchange between artist and viewer. Emma is one of our lovely clients. Jen Johannesen has advised Emma on the commercialisation and protection of her intellectual property rights as she continues to grow her brand and business. ACKNOWLEDGEMENT OF COUNTRY EMMA STENHOUSE WALK TO THE WATERHOLES 2 QUARTERLY IMPACT STATEMENT | Q1 2022 Marque Lawyers acknowledges the Gadigal of the Eora Nation as the traditional custodians of the land we now call Sydney. We recognise their continuing connection to land, skies and seas and thank them for protecting this coastline and its ecosystems since time immemorial. We acknowledge that sovereignty was never ceded. We pay our respects to Elders past and present and extend that respect to all First Nations people. QUARTERLY IMPACT STATEMENT | Q1 2022 OUR PURPOSE Michael Bradley NOTE FROM THE MANAGING PARTNER "USING THE LAW FOR GOOD. This is the reason Marque exists." We are in our fourteenth year of doing law differently, and the thing that keeps surprising us most is our impact. That may seem odd for a firm that launched itself on an unsuspecting world loudly proclaiming its ambition “to completely change the way law is practised”, but to be honest we would have been happy if we’d made a small splash. Instead, our journey as a business has been paralleled by the constant development of our own appreciation of our place in the world as lawyers, and how much power we have to affect it – for better, or worse, or just to maintain the status quo. On our plate right at the moment is a dizzying array of cool things to be doing: we’re running two potentially game-changing test cases against the Commonwealth for the benefit of refugees caught up in Australia’s Kafkaesque migration system; we are playing a central role in the ongoing LetHerSpeak campaign, Future Women, the re-emergent Purpose conference, TEDxSydney, BCorp and many other amazing campaigns, groups and initiatives changing the world for good; we are deeply involved in the political world, acting for a large number of candidates in the lead-up to the federal election; we are providing legal support to the campaign to make NSW the last Australian state to introduce voluntary assisted dying laws, and working closely with the Digital Publishers Alliance in its advocacy for reforms essential to keeping our vibrant independent media sector alive; we’re working with many of the most exciting innovators and participants in the exponentially expanding renewables sector; and, most importantly, we recently hit 50,000 Twitter followers. I’m often asked how we can be a serious commercial/corporate law firm while taking on so many causes and being so outspoken on issues of social justice. It’s simple: there’s nothing inconsistent or incoherent in it. We are lawyers, first and last. We choose to use our skill for good. Who doesn’t want that? We measure our success not in dollars but in our own meaning and in the impact we have. We’re proud of that impact, and we’d like to share some of it with you here. Quarterly Impact Statement: Issue 1 Welcome to the first issue of our Quarterly Impact Statement. In the course of doing law differently, the team at Marque has met inspiring clients and involved itself in projects that seek to make the world a better place. We are excited to share some of the work we have been doing so far this year. These quarterly statements will include updates on the advocacy and not-forprofit work we do, law reforms we are interested in and have submitted on, community events we have worked with or attended and clients that we think you might want to hear more about. We also will include highlights from our regular updates that focus on areas of impact we are working on. Like all our work, these statements are a collaboration across our firm, and captures the breadth of work our lawyers do and issues we all care about. We hope you enjoy and if you want to get in touch with us about anything in the statement, please email [email protected] Climate 200 Kiera Peacock 5 Proposed competition law reforms Hannah Marshall & Danielle Kroon 5 Designs Act 2003 changes Justin Cudmore & Emma Johnsen 6 Future Women Leadership Summit Sophie Ciufo 6 Empowering story holders and Marque's partnership with Our Race Jen Johannesen 7 Articles with impact 8 TABLE OF CONTENTS QUARTERLY IMPACT STATEMENT | Q1 2022 PROPOSED COMPETITION LAW REFORMS QUARTERLY IMPACT STATEMENT | Q1 2022 Have you heard? There's a federal election coming up. It will be an election like no other. An exciting array of community independents have popped up in electorates around the country. They are driven by one thing: a desire to provide better representation for their community in federal parliament. We're excited by the way this has engaged both disillusioned parts of the community and inspired change in politics. We're delighted to be in the midst of this, working with Climate 200, an organisation which seeks to level the playing field for independent candidates. Many of these independents are driven by a desire to secure a science-based response to climate change. We've written many times about government policy and law being the last key to unlocking huge potential for people in renewables. A proactive government policy on climate change would have the twofold benefit of driving innovation and solving the climate crisis! OUR WORK WITH CLIMATE 200 Kiera Peacock Hannah Marshall & Danielle Kroon The digital platforms operate globally. Their acquisitions typically impact competition internationally; digital markets ignore geographic boundaries. An international merger review body would be best suited to oversee their acquisitions and preserve global competition. Google and Facebook are slowly taking over the world. Competition regulators have noticed and are madly trying to figure out what to do about it. In Australia, this is happening via the ACCC’s Digital Platforms Inquiry (DPI). The latest instalment of the DPI is considering how we can reform competition laws to better manage Google and Facebook’s dominance. We had an idea, so we put in a submission. Digital platforms use acquisitions to cement their dominance. They can buy their competitors, like when Meta solved the Instagram vs Facebook debate by simply buying Instagram. They can also buy their way into new industries. Meta just bought a customer relationship management (CRM) and customer service software business called Kustomer. An audience management tool is a neat complement to their existing communication platforms. And with Meta behind it, Kustomer gets a big leg up against its competitors. Our competition laws already provide mechanisms for merger reviews. They look at whether an acquisition will reduce competition in any market, and whether it might produce ‘public benefits’. We say that these laws don’t fit digital platforms, and don’t protect us against their constant devouring of market share and new markets. That’s a bad thing; we lose innovation, choice, and control of our own data. They need their own regime. Here’s what it could look like. The merger review test needs to look beyond market definition. Digital platforms don’t operate in markets; they are entire ecosystems. Another way to measure their power and competitive impact could be to look at their adaptability; their ability to jump from one industry to another like a spot fire. Before Meta bought Kustomer, it had no presence in the CRM world. Now, it could easily become a (or even the) major player. Setting up an international merger review body is a big ask; but it’s entirely doable. It requires international agreement given local effect under legislation in participating jurisdictions. It could apply specifically to designated digital platforms and offer an alternative to country-based merger clearance in participating jurisdictions. To deal with the digital platforms, we need big, bold ideas that look ahead and don’t just tinker with the edges of our current, outdated laws. We don’t know if our idea is the right one, but we do know it’s important to join in the discussion. If you would like to read more, you can see our submission here. HOW IMPROVING DESIGN LAWS CAN BETTER PROTECT AUSTRALIAN DESIGNERS QUARTERLY IMPACT STATEMENT | Q1 2022 Unfortunately for designers, Copyright protection is generally lost in a design for a garment once it has been produced on an industrial scale. This is why protection under the Designs Act 2003 is creatively and commercially important for designers. Marque, in collaboration with the Australian Fashion Council, has been working with IP Australia to bring about changes to the Designs Act 2003 that secure greater legal protections for Australian fashion and industrial designers. Our involvement included gathering input from stakeholders in the fashion industry, meeting with representatives of IP Australia, and providing comment on the draft legislation. The most significant change is the introduction of a 12-month grace period from the date of disclosure of a design. Under certain conditions, designers can now file an application to register and protect their design. Previously, designers were required to file an application before any disclosure of designs, meaning that something as simple as a social media post by designers would mean losing any legal protection for the design. Now, if a designer unintentionally publishes a design on social media or were unaware they needed to file for protection before disclosing the design, the designer can still seek protection for it within the 12-month period. Essentially, these changes will better protect designers under the Designs Act 2003, allowing them to prevent unauthorised copying of their designs. Marque will continue working with fashion stakeholders and IP Australia to ensure design rights and copyright protection continue to improve for Australian designers and freelancers. FUTURE WOMEN Something that made an impact on Marque Lawyers recently was the 2022 Future Women Leadership Summit: The Power of Visibility, held over two days in February. We are proud supporters of Future Women, and this year we were also sponsors of the summit. We’re still distilling all the thought-provoking ideas and information shared at the summit, and buzzing from the energy that filled the conference room over the two days. The theme was the power of visibility and, while it was threaded throughout the summit, the discussion about visibility that had the most impact on us was the Keynote Address from lawyer, activist and Wiradjuri and Wailwan woman, Teela Reid. Reid implored us to consider our role in creating visibility, and whether we are giving visibility to the women who need it most. She asked the audience whether our efforts to give visibility to women were truly intersectional and representative of Australia, where sovereignty was never ceded by First Nations people. Justin Cudmore & Emma Johnsen Sophie Ciufo Discussions about visibility and gender equality often bounce around an echo chamber of people who already understand the issues and who often have firsthand experience of them. Tarang Chawla (gender equality and mental health advocate), Gaven Morris (former Director of ABC News) and Matt Comyn (CommBank CEO & Managing Director) participated in welcomed discussions about how to include people from outside the echo chamber in the discussions and subsequent actions, without taking away the voices of those affected. All in all, the summit was the best kind of sensory overload and we’ll be drawing on the ideas and conversations we took from it for months to come. QUARTERLY IMPACT STATEMENT | Q1 2022 A story holder is a person who shares their story, or peoples who are the custodians of a story. The story holder shares the story based on their own lived experience or on behalf of others, for example their family, with cultural authority or with permission from people with cultural authority. When story holders speak about communities who have less power than themselves, they must not inflict harm or remove agency from these individuals or communities. The story holder and the cultural knowledge contained in their stories are not always sufficiently protected at law. For example, intellectual property laws attach to the author (the person who puts the story into tangible form) as opposed to the story teller. Defamation laws protect the reputation of an individual who is alive, but the person must be identified and must prove that there has been damage to their reputation. Defamation proceedings are also complex and expensive. This leaves limited recourse for a story holder if a story is used without their approval. Organisations working with story holders often perpetuate the disempowerment of story holders by requesting story holders sign assignments and/or consents before a story is shared, which effectively grants the organisation the right to do as it pleases with it, including commercialising it, editing or modifying it. Marque has been working with Our Race for a number of years to consider how best to empower story holders and to educate organisations about how best to address this gap in the law. Our Race is a social enterprise made up of story holders, practitioners and researchers who advocate for ethical story telling. Grounded in First Nations’ Story Telling practices, Our Race develops tools, techniques and resources for story holders, empowering them to be the creators and directors of their own stories. Our Race has recently launched a Transformational Ethical Storytelling Framework. The Framework sets out 5 principles that centre the Story Holder and their communities, empowering them to create, curate and control their stories on their own terms. Importantly, the Framework also gives special consideration to Indigenous Cultural and Intellectual Property. Organisations can commit to implement these principles when engaging with story holders. Our Race offers workshops to organisations to support safe, ethical story telling practices. Marque prepared the first draft of the Framework and helped ensure the drafting reflected feedback from many stakeholders. Marque has also created resources for story holders (eg what to look for in a contract) and is helping Our Race to become a registered charity along with exploring DGR status. If you’re interested in learning more about Our Race or the Framework, please click here. EMPOWERING STORY HOLDERS AND MARQUE'S PARTNERSHIP WITH OUR RACE Jen Johannesen Entities with DGR status must be registered charities & Changes to charity reporting requirements By Jennifer Johannesen Climate cliffnotes: Blue hydrogen greenwashing By Rosehannah Lambert Why every employer should have a family and domestic violence policy By Wesley Rogers ARTICLES WITH IMPACT QUARTERLY IMPACT STATEMENT | Q1 2022 EDITING TEAM Jen Johannesen Netta Egoz Ben Kaufman Phyllida Behm Pamela Calvi QUESTIONS? Email: Jen Johannesen [email protected] FOLLOW US