Professor Jeannie Marie Paterson teaches and researches in the areas of contracts, consumer protection, and the role of technological change in these areas. She is also involved in several ongoing research and advocacy projects on consumer rights.
What attracted you to pursuing a career in academia?
I wanted to be an academic since I started law school, and in particular I wanted to be a Contracts lecturer. I went to ANU and had great lecturers, which inspired me to pursue academia. During university, I worked as an RA for Professor Don Greig, a contract and international law scholar, who said you shouldn’t go into academia, at least as a contract lecturer, until experiencing legal practice. So that’s what I did. Practice was rewarding and provided very good legal training. I had wonderful colleagues. I got to deal with real problems and real contracts, but in practice you don’t get to pursue ideas with the same freedom as an academic.
Could you tell us a bit about your experience as a woman in academia?
Melbourne Law School is a wonderful place to work. It has a strongly collaborative environment, good students and a very honest and intellectually rigorous approach to law and policy. We have women in leadership positions and who are recognised as leaders in their fields of study.
I’m actually quite surprised when I go to other workplaces, such as the commercial bar, and see that it doesn’t reflect my workplace or the composition of students at law school.
There are more women who are partners in law firms and SC at the Bar than when I started, and more diversity generally. There are some wonderful women rising up through the ranks. However, the numbers are still not anywhere near equal. Moreover, the legal profession is noticeably very, very white. That is probably the new frontier that the legal profession needs to improve upon, and it doesn’t seem to be changing quickly.
What do you think could be done to change the legal industry in this regard?
I think the first thing is to acknowledge that the composition of many sectors of the legal profession, and particularly the higher echelons of the profession, do not reflect Australian society. We need to be aware of this and put in place positive measures to create something better.
This will only occur if people who are in positions of power take part in this conversation. It’s a problem for everyone. If members of the legal community never question what its profile looks like, then it’s never going to change. And here I recognise that I am coming from a privileged, Anglo-Saxon background, and so I need to take part in the conversation, and do a lot of listening to the lived experiences of others as well.
I also think TV and media are very important. We love legal dramas – but if you look at the characters, they’re largely homogenous. There might be women lawyers displayed on screen, but no Asian or Indian women, no Asian or Indian men. And there is a noticeable absence of indigenous actor playing solicitors, barristers or judges …. If you can’t see who you want to become, it’s hard to become it.
What piece of research or work have you been most proud of?
I’ve recently been doing some work with the Melbourne Social Equity Institute (MSEI) on how to support people with cognitive disabilities contracting for essential services. Unconscionable conduct and undue influence cases in contract law often concern people with no capacity to contract and operates to set aside that contract. Our work with MSEI is researching what supports might assist people with disabilities in contracting, instead of having other people’s views about what might be best imposed on them. It is premised on involving the community in the research project, so that they have a say in what works and what should be subject to further study. Our research is based on the principle of universal design, which seeks to develop products and process that accommodate the needs of all users not just one group.
If you hadn’t pursued academia, what do you think you might have done?
I was going to be a jillaroo – a person who works on a cattle station and rounds up sheep. I was offered a job as a jillaroo out of high school but was persuaded by my parents to try university first.
For the Contracts fans out there, which is your favourite foundational Contracts case and why?
Probably Walton Stores v Maher.[1] It is an example of the High Court, led by Chief Justice Mason, developing law that was distinctly different from that applying in England.
What Waltons did was ethically wrong – standing by and allowing Maher to act to their detriment on the basis of a belief encouraged by Waltons for their own advantage. Waltons (or their lawyers) thought they would get away with it, but the Court said “Nope, you can’t”. It represents a watershed moment in Australian law, constraining the traditional individualist ethics of contract law in favour of fair dealing, or as Professor Paul Finn observed, the application of the moral ethos of the neighbourhood principle from the tort of negligence to contractual negotiations.
What are you most excited about with regards to AI and consumer protection law?
I’m a little bit frightened instead of excited. I am increasingly reminded of the insights of Shoshana Zuboff’s book ‘The Age of Surveillance Capitalism’, which is about the fact that we are being scrutinised via technology in everything that we do. This surveillance is problematic because it can be used to reduce civil liberties. I’m also concerned about our capacity as citizens to make choices.
Take for example the uses of AI in consumer markets. The reason we’re being observed is to better sell us products. If the sale of products becomes more targeted, then the field within which we exercise choice may become progressively narrower. Sometimes the good things come from spontaneous or unexpected discoveries, so if everything is being curated by AI, where does this spontaneity happen? I’m worried about a bland, controlled future.
There is also a blurring of in our identities as consumers and as citizens. We’re getting our news in the same way that we find goods and services, and the manipulation of this information curtails our freedom of choice as consumers and as political agents.
The problem right now is that the law that we have doesn’t even address these problems. Consumer law is concerned with abuses of power, but here we have subtle manipulation and narrowing of choice, where consumers are maneuvered to a particular outcome by the very way in which material is presented and framed.
Frankly, I think the most potential for authentic and provocative encounters comes through the arts. Art, music, drama create shared experiences – there’s no filtering, no manipulation. It’s immediate and an opportunity to both bring people together in different ways and to prompt conversations about who we want to be.
In light of the recent ACCC Digital Platforms Inquiry, what changes, if any, do you foresee in the Australian regulations for digital giants like Facebook and Google?
I approach this report as a consumer advocate rather than a competition lawyer. We need to think about unfair contract terms in a digital context, particularly with digital platform and streaming services. There may be aspects of privacy that people shouldn’t ever give away, even if they ‘agree’ to it. I think children shouldn’t be able to give away their right to privacy at all. We need to think about dispute resolution that is accessible to consumers in this space. Consumer protection in these areas is justifiable as a way of preserving fundamental values in society.
Also, given that we as a society are so reliant on digital media, there should be safety standards put in place. We need strong consumer law ensuring digital technologies are reliable and accountable, and also sufficiently transparent for us as consumer and citizens to understand the uses to which new technologies are being put.
Do you have any advice for new, fresh-faced law students?
My
advice for law students is that you have a really short degree. Make the most
of it, but also think about where you want to take it. Seize every opportunity
to find out more about the options for where you might be able to take your
degree. You need to actively manage your own careers. This sounds scary and
demanding, but there are lots of options out there that you may not have
thought about – you just need to try find them. (And MLS does try to help you
in this).
[1] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
Interview by Emily Tang
2nd Year JD Student
Purely Dicta 