Podcast: The impact of COVID-19 on the Legal System and the Community

Sally:

My name is Sally Nicholes, Managing Partner of Nicholes Family Lawyers, today I am joined by Michael Wyles QC to discuss his pro-active approach to the Covid-19 crisis and the associated impact this may have on the legal system going forward and also his views about the impact on the community.

Michael Wyles QC is a barrister with extensive experience in corporate and company law, competition law, commercial arbitrations, equity, trusts and economic torts.  More recently, Michael has taken an extraordinary initiative as a commercial silk and as a private citizen by monitoring the Covid-19 crisis and sending daily Covid updates to his network. Michael has become a well-relied upon and informed  influence in this space, especially given his expertise in corporate, administration and constitutional law, by keeping his network informed of the latest developments in what has been such a confusing time and moving feast.

Michael, can you explain what your approach has been to Covid-19 since the beginning of the crisis, and what inspired you to start creating the Covid updates; I rely upon them heavily.

Michael:

Thanks Sally, it’s a pleasure to be here.  I think what motivated me at the outset was the absence of information to the community.  I’m a great believer that if you want people to buy in, they need to know what is happening. It is true that in March there was a lot of doubt or a lot of grey areas as to what was actually happening.  We had some data out of China, we had some data out of Europe, but we really didn’t know much about Covid, so what I tried to do was to give people as much information as I could get.

I also found that the information was disparate, so you actually had to go looking for it to be able to understand things. In the Australian context, I was really keen for people to understand what was happening here relative to what was happening in what I regard as the sophisticated Western European countries, particularly such countries like Germany and the Nordic countries.  I didn’t look so closely at Switzerland because of its size, but countries like Italy where we have a lot of roots, and Spain and France and the UK, of course. The UK was especially interesting because if you go back to the press releases in March, the chief Medical Officer in the UK was advising the approach which has been adopted by Anders Tegnell in Sweden, that they should seek to develop some herd immunity. Then after a period of time, I think the British government determined that this approach would not be popular with the public and they changed their approach altogether to be more consistent with the lockdown-type approach.

Sally:

They seemed to have such a disastrous impact on the population and when their Prime Minister got infected, that was quite shocking to see this figure-head being infected, although now it has become common to see but that was a big shock and I think to him personally as well.

Michael:

Yes, I think that is right. As events transpired, I didn’t pay much attention to what was happening in the United States because there was just no measured, sensible, rational reaction coming from the White House, now I think we have seen the impact on the United States of that.  And so it seemed to me that the United States is not a great comparator for us because we have had at least a purposeful approach from government.

Sally:

And what should one expect to see in a Covid update, and what really inspired you to reach out to your network?  Did anyone ask you to do it? There was a lot of positive feedback about it!

Michael:

No, nobody asked me to do it. I have had lots of positive feedback.  So what I try to do with the figures….I try to analyse…I was concentrating on Australia up until a month ago, when Victoria was doing quite well, and what I thought was important in March was for people to be able to see that the lockdown here, which we raced into, if I might put it that way, had not necessarily been predicated on a sound factual foundation and as the figures continued through March, whilst is was true that we had some high rates of increasing infection back in March, I think we might have reached 26% or 27% one day, we had very low figures, and so all of that was relative.  What I was trying to explain to people was that if you took a 7 day average rate of increase of infection, the world standard appears to be a 5-day rate in the increase in infection, so once you start analysing those figures, then the daily numbers, just like yesterday’s daily numbers, which I’ve written to people about this morning, become less relevant.  What is important is the overall trend, and where you can predict that we may be heading.  So I try to give people a break-down of what has actually happened, a break-down of how many people we have in hospital – we are a bit over 400 in Victoria in hospital at the moment but our ICU take-up is running at less than 10% of that, so on any world standard, we ought to be very pleased with that.

Sally:

And if you compare that with the headlines, I mean it wouldn’t be unusual to see a headline: “Victoria’s deadliest day”….I think there has to be some responsibility on the journalists taking into account the impact on mental health with these continuous headlines which are not going to assist the community at all.  When I get your emails, they are informative and you are not trying to sugar-coat anything, you are actually trying to educate people as to where the trend is heading and that we are actually doing OK.  It is extremely sad, what has happened, and I am going to ask your view on that, in terms of the second wave and your comments are about what has happened and how it happened and some strategies that ….those alarmist headlines, the Herald Sun headlines for example, they don’t assist the community in my view.

Michael:

No, it is interesting…the use of fear as a motivating force and if I might put it, as an organising force …I haven’t done enough study, it would be interesting to study; there are famous examples in history.  We know that it is easy to lead against a common enemy, so in some ways that makes it easier for leaders, and I think the unknowns about Covid which made it susceptible to driving fear within the community, I suspect that this sells newspapers.  I suspect that people think the news is watched because of that fear.  I don’t know how far it extends into social media, Sally, but nobody really wants to examine the facts as such and even the Australian newspaper has been running numbers where they then talk about …this is the highest increase in new cases. But what the Australian never tells you is that whatever numbers are published about the increasing cases in Victoria, what there is (in public service discourse) – re-classification each day, sometimes they say mostly due to duplications, and we then find out that the number might have been overstated by a number of 49 or 50, and that is happening on a regular basis.

Sally:

That is incredible.  And why do you think…there have been statements in the Commission and the findings have been delayed or deferred, I’m not quite sure why that has happened.  But the statement has been made that the second wave can be attributed to one person, what do you think about that?

Michael:

I think that there are a lot of interesting things happening at the moment.  I should declare my hand – I have been retained by the Leader of the Opposition to obtain standing before the Commission or the Inquiry.  The Opposition was granted standing to appear before the Tri-Continental Royal Commission because it had such a significant impact on the Victorian community, both financial and otherwise, and at that time, there was no fuss about them appearing.  All I can say to you at the moment is that we seem to be being resisted for reasons which are not quite explained but we will pursue that.

I think the delay yesterday is difficult to understand. I think the original day set by the government was the 25^th of September.  Why it is going out to November, I’m not sure.  I can tell you, as it is on the public record, there are an enormous number of government departments that are involved, and I think, it is difficult to know what to call Ms Coate, I think they are referring to her as the Chairperson of the Board of Inquiry.  I think that she said yesterday that they had received a significant number of documents which seemed very surprising that there are so many documents, considering that hotel quarantine didn’t work. Which brings me full circle to Professor Sutton who has been quite definite in his attribution of the current position we are in, to the genomic sequencing which traces it back to the failure in hotel quarantine, so I doubt whether he would have made a statement like that without being fully informed and I would defer to him on that.  So that seems to be the source of the problem – put to one side why it happened, that brings us back to where we are now, and how we can possibly bring this under control.

Sally:

And we are an island, what do you think in terms of –  we had the issue of 1 in 4 people who were isolating but not being at home, well that is what we were being told by the Premier in the release – what do you think will shift community attitudes?  Do you think this current lockdown will change that behaviour?

Michael:

No, I have a firm view that the current lockdown will almost act in opposition to reducing the numbers.  The numbers yesterday, when I did the analysis this morning, we remain with a high number of active cases in the local government areas which are essentially based in the western suburbs – I haven’t had the time to do the socio-economic studies so I am generalising a bit.  The reality is, that when you say 1 in 4 people were not there, I’m not sure that we have done enough education of people in those suburbs, I’m not sure that the punishment attitude, if I can call it that, is any longer effective, Sally.  I mean I have been through an enormous transition, when I first started practising, if a silk said something to you, you would say: how high should I jump?  But if a silk says now to a junior: I want this done, and the junior thinks it is unreasonable, they just won’t do it.  So we have had to re-learn “Leadership Skills”: you have actually got to bring people on board.

I had the good fortune of undertaking a leadership course at Melbourne University about 4 or 5 years ago when I was chairing VCL, because it became abundantly clear to me that I had no idea what I was doing as a “leader”.

Sally:

We are not taught that at law school, are we?  How to manage people?

Michael:

No we are not and to my surprise there is in existence a whole body of academic literature. One of the things I took away from that was that actually the best leadership is small leadership, and motivating the team to actually out-perform themselves.  I don’t think Daniel Andrews has one iota of that concept, I don’t think he understands it at all.  I think the problem is that he is resorting to what he was taught when he was at school.  No doubt he was taught by the Marist brothers, that if you don’t do things you will be punished, but I’m just not sure it is going to work in Brimbank and I’m not sure it is going to work in Wyndham.  I think there are a number of factors going on: there could be just a quiet protest going on in the good old-fashioned Australian way just to ignore politicians and protest that way.  There could be just desperation to try to keep a living and try to keep things going as you know how to keep them going.  I think we shouldn’t discount the unspoken about but absolutely prevalent problem of ice in our community, so when you are talking about community transmission and not being able to track or trace, well of course they are not going to tell you who they were sharing their ice pipe with.  It’s just naïve.  So I think there are a number of social issues that we need to be addressing….there was an article in this morning’s Financial Review, by a fellow who started one of those travel companies, Turner, and he was questioning this blunt-end approach and whether we should be putting the money into identifying the trouble, and making sure that we have tested every single person – maybe that is not such a bad idea..

Sally:

Yes and trying to engage the community leaders in those hot-spots and asking, what will work, what will motivate, how can we actually draw the community out.

Michael:

Yes, and that this virus will make you sick. We know that one in 500 of you is infected, so every time you go to the supermarket you are likely to bump into someone who is infected and if you get infected, you can get very sick.  I mean I have had a cyber-kind sore and nobody wants that and that is what this thing can give you apart from respiratory problems and nobody wants that.

Sally:

It is interesting, I was actually thinking about the UK where the petrol stations were a huge source of transmission from putting your hand on the pump, and I’ve not seen much education about that either.  I know people have to fill up their cars, but are gloves being provided for their hands, like the trolleys in a supermarket.  I’m just wondering whether that is something – to me it is fairly obvious that this is education as well, one you don’t perhaps think about.  I went to fill up my car the other day, forgot the gloves, then quickly washed my hands, but that is something as you said, the education needs to be out there.

Michael;

To follow up what you are saying, has the government thought about providing every resident, not just the household, but every resident in those areas where we have a high incidence of active infections with hand sanitiser? So that they have hand sanitiser in their car, they have an abundance in their home, have we thought of any of those things?

The whole approach has been so blunt-edged and we are following what was done in some of the northern Italian cities with a blunt-edged lockdown in circumstances where we don’t live the same way.  We had a problem within the towers in Kensington which was fully to be anticipated.  Now I don’t know who was at the Department of Health at that time and there is no point in looking back and casting blame, but blind Freddy would have seen that there were going to be some places where people were living in a much closer environment so that we wanted to give them much more education: You are actually in a highly-exposed position here.  I know you think it is only for old people but if this thing gets you, you could get very sick so here is some hand-sanitiser, here is some shampoo, here is some soap, I mean why are we expecting all these people to go out and buy more?

Sally:

Yes and there is also the issue of mental health .and Flynn and I recorded an amazing podcast with Taimi Allan (CEO of Changing Minds)  in New Zealand talking about their issues with mental health during the last lockdown but I think this is an impact which will be with us for a long time.

Michael:

Yes I agree.  What we were talking about before we started recording – what is happening with young people, there are a number of aspects where young people have been so badly affected by it all.  I’m amazed that they have been so passive about it all, because essentially, I know that not all of our leaders are boomers and I’m one of the last ones, so I can talk about them, and be critical of them, but this is all about the boomers protecting their position and there are a lot of young people being denied the time of their life.  They cannot get back their 18^th year or 19^th or 20^th year, you can’t get it back again – they have all been locked up.  I think it will have impacts on the way they approach their lives going forward.

Sally:

The thing that has worried me the most is the impact on my kids and wanting to  keep their mental health intact, because they all deserve the kind of childhood that we had, the opportunities that we had and the freedoms that we had.  But we also want the broader community to be safe. I’m telling them that this will pass and it will all be over soon. But for many kids, they find the television gripping and the daily news gripping and there is this sensation that it won’t pass. Flynn do you feel that? Do you get overwhelmed or find that your social networks are finding it a bit hard?

Flynn:

Absolutely, who is not finding it hard.  I wouldn’t regard the younger population as finding it harder than the older population, I think that being younger you strive more to be outside and to explore places and when you haven’t done that yet….but when it comes to birthdays, 18^th or 19^th or a 21^st, there is going to be more resistance to following the rules. I think it will be harder for younger kids, I think once you get to 18 you realise the whole situation  and what you need to do your part, but when younger you don’t really apprehend the whole picture, so I think it is harder for them to understand and follow the directives.  Otherwise, I think we are finding the same level of difficulty as everyone else and this generation is more tech-savvy, this generation, so we are more online. I think it must be pretty hard for students who have gone overseas to study and have been locked down in a country that they are not used to, which can be very hard, after being used to living with family and then suddenly in lockdown in a country that you are not used to and not seeing your family for months.  Yes, it’s hard.  But it is a moment to grow up faster.  It doesn’t make it any easier.

Sally:

It certainly goes to your own resilience, doesn’t it, and being able to reach out. For those older people who are not tech-savvy, and not being able to see their grandchildren, that is really tough too.

Flynn:

The thing is, after this everyone is going to be tech-savvy. Thank goodness for technology!  It would be horrifying if you could not zoom-call your family every now and then – I mean I didn’t even know what zoom was until the lockdown!

Sally:

Neither did I!

Flynn:

They must be getting so much money at the moment!

Michael:
I think it would be great for someone to write an article about the 80-plus-year-olds who have adapted so quickly to the technology.  I think for all its faults, Apple’s Facetime has been a boon for them.

Sally:

So going forward, Michael, in terms of your research, what do you think about the current status of the vaccine?

Michael:

I think the most encouraging news I read about a week ago – I forget where the group is, but they seem to be satisfied that the virus has ceased mutating. If this is the case, then as I understand the development of vaccines, the task has become much more straight-forward. Oxford are certainly doing testing at the moment and I think there are trials going on at the moment in Australia, involving the Universities of Melbourne and Queensland.  There’s also an article I read last week in the New England Journal of Medicine where they have done testing in primates and they have found that the immunisation looks as though it will last for at least 12 months.

Sally:

Which is good news.  I have friends who are farmers who say that coronavirus has been around in cows for years, for example, but they always have to give a booster every six months, so perhaps this will become part of life, having to have a booster so I said I’ll take that!  Turning now to the legal system, do you think we will ever return to what we knew as the norm after this is over, in terms of how we are structured and the way we used to operate?

Michael:

I think to Flynn’s point, the answer is no. As I have discussed with you previously, I have been anticipating this for some time.  I was unpopular  with my colleagues when I was chairing VCL, because I was heading very quickly down the path where we could save a lot of cost to clients and achieve a lot of efficiencies if a lot of what we commonly regard as the more administrative aspects: setting timetables, understanding what evidence is needing to be called, making sure we could be ready for a date, understanding how long people need for their submissions etc, rather than counsel sitting around in a courtroom while a judge works through a list.  I do not know how judges have the patience to do that and as I sit in the back of a courtroom it is just very lucky for those counsel who are on their feet that I am not a judge because of the lack of preparation.  Whereas if judges whereas if judges were to set video conference times for all of those matters and if it lasted for 15 minutes and that is the end of the video-conference, we would achieve a lot more efficiencies, but that is going to pose more difficulties for the Bar, finding their value-add proposition which is why the Bar is very resistant to that.

I think this is going to be what clients expect – we have never really embraced in Australia the whole deposition system but if we were to embrace this so that the judge did not necessarily have to be involved in the calling of all evidence, then the use of this modern technology of which we have all become quite familiar with, which we were discussing, like Zoom, it might provide enormous efficiencies for clients.

Sally:

Definitely, and for those living in remote areas, too.  So gone are the days where you were one of 50 in a remote regional list, where you would only get a visiting judge and barristers with enormous briefs, one after another, it would be so much easier if there was a continuous ability to have a remote list remaining and I do know that in our family courts there is certainly consideration that this technology will remain to provide access to justice but particularly for vulnerable clients and people who need an urgent hearing.

Michael:

Yes, I think that we will have to learn to make the technology work for us, I think that the decision-makers in the legal system need to get back to the fact that the High Court is only interested in the legal equation: facts plus law equals outcome.  So in each case….you would know, Sally, in the family area, a lot of the law has been worked out, in Contracts the law has been worked out, the Gleeson High Court made it very clear about how you should interpret contracts, and the High Court has repeated that ever since. So we know what a lot of the law is, even that which is not written in legislation so our job is just to work out what the facts are, and what a judge should be doing with those facts, and to assist a judge to make sure that they get to the right outcome.

There is a lot of keeping the mystique, which I know you have broken down, and I think a lot of the best practitioners are always trying to break that down.

Sally:

I was instructing in court in a trial yesterday and I had about three screens in front of me, I had the screen with the client, I had the screen where I dealt with the barristers and the one where the trial was running. It was a little bit clunky and there was no evidence being given, which was tough. I think ideally you would want to be able to give evidence in person if you can. But this interlocutory proceeding worked well.

Michael:

Bear in mind that there are a lot of studies about when you can tell if people are or are not telling the truth and the legal system at least in Australia has never really embarked on that study and if we were to do so, we might get some surprising answers to whether or not people need to be in a courtroom for the truth to be told.

Sally:

It is interesting that in repose, people forget that they are on the camera – there have been some funny incidents where people are scratching their head or sighing very deeply into their microphone each time the opposition make their point, that was actually quite funny yesterday, so a bit of etiquette would need to be adjusted.  But it is a good access to justice too for those suburban lawyers who have got IPhone, they can actually access the court remotely which I think is really important as an access to justice issue as well.

Moving forward Michael, where to from here?  I am so grateful for your updates, they are so well researched – what we might do with your permission is to put a few examples online.  After this, can you see light at the end of the tunnel combined with the current strategy which has been undertaken for people, what do you think?

Michael:

There are varying reports in this morning’s press, just looking at the numbers we are for the moment, in the beginnings of a downward trend in the number of infections being returned from the number of tests.  If we can keep that however it is being achieved then we will certainly reduce the number of active cases within the community.  In round terms, we have 78% of the active cases located in 15 of the local government areas – apart from Melbourne, Yarra and Whittlesea, they are all well north and  west including Geelong, Geelong must be included now because it is well up to 100 cases even though it is only in Stage 3. So if we can reduce in those areas, because the rate of infection return from the test, and predominantly that is where the testing is happening then we will start to see those areas reduce the number of active infections and I think this is the key – if we can reduce the number of active infections in those areas, then that will start to reduce the opportunities for community infections because there will just be less cases per 100,000 people or per 500 people, that will certainly see the numbers fall.

I think the problem is, and I have called for – I’ve been trying to get the Leader of the Opposition to pursue this with Dan Andrews, and I don’t understand why Dan doesn’t want to give it to people because if he wants their buy-in then the community urgently needs to understand what we are targeting. I think there will be general  community disaffection if we are told that we are targeting a zero-sum game.  You know, the Germans are monitoring, the Spanish have started reducing people’s freedoms again because the cases are just going up a bit too much, but my point is that all of those European countries are living with some new infections every day.  We know because of the human error that was involved in us getting to where we are now, the expectations that we can have no new infections every day is just unrealistic …until there is a vaccine.  I’m adamant about that and I say that the evidence is all in the fact….I have no doubt that those running the health department were well-meaning as were those who were attending to the hotel quarantine, but if you have human error, which is something that you have to expect, then it is silly to think that we are going to have no new cases.

Sally:

Well, in a year’s time, hopefully it will be a totally different situation, it will be Flynn TV by that time and hopefully we will be doing …..

Flynn:

Yes you will be working for me then!

Sally:

Michael thank you so much for your time and for your updates and I think we will send the uncut version of this to Lottie who will then get to hear every scintilla of your wisdom!

Michael;

All right, well enjoy the rest of your day.

Sally:

Lovely to see you in person again

Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.