Musk v Altman: Contracts, Estoppel and (Maybe) the Future of Humankind

It’s not often you can say that the fate of humanity hangs on the outcome of a legal proceeding. It might sound absurd, but if you believe Elon Musk, the plaintiff in the latest lawsuit against OpenAI, then the outcome of his case might be just that important.

On 29 February this year, Elon Musk filed a complaint in the Superior Court of California against OpenAI founders Sam Altman and Greg Brockman, along with a list of OpenAI corporate entities, claiming that the defendants had breached a contract between the three men which required them to ‘develop [Artificial General Intelligence] for the benefit of humanity’ and make its research and technology open-source – freely available to the public.  

If you haven’t come across the term before, Artificial General Intelligence is a term without a precise definition – one of the challenges that will face any judge trying to decide this case – but is commonly used to refer to an AI model with human-like (or superhuman) intelligence across a broad range of skills, effectively making it a general-purpose AI system – or an effective replacement for human intellectual labour.

In the alternative, Musk pleads “promissory estoppel” – that even if there is no contract between Musk, Altman and Brockman, then the defendants induced him to make ‘millions of dollars in contributions to OpenAI’, to his detriment, in reliance on the promise that OpenAI would be a non-profit developing open-source technology for the good of humanity.

Musk’s third claim is actually a really unique one that should be getting a lot more attention in the reporting on this story – it’s probably a world-first, in fact.  Musk claims that the defendants breached the fiduciary duty they owe to humanity at large, under the charter for OpenAI, Inc. (the not-for-profit OpenAI entity) – including Musk himself.  Fiduciary duties are usually confined to well-defined relationships of trust and responsibility – directors to companies, trustees to beneficiaries, lawyers to clients – but a fiduciary duty owed to more than 7 billion people collectively is probably something that has never before been the subject of litigation.

Musk also claims unfair competition (a cause of action under California statute), and an account of profits.  He seeks orders for specific performance and injunctive relief, compelling OpenAI to make its AI research and technology – and based on the contents of the complaint, presumably the architecture of the market-leading GPT-4 model – publicly available, and preventing the defendants from using OpenAI or its assets or research for the financial benefit of any person.  Musk also seeks a declaration that GPT-4, and another rumoured new model yet to be publicly announced or confirmed, “Q*” (pronounced, Q-Star), constitute AGI.

The 46-page complaint is a fascinating read, whatever you think of the claim itself.  There are startling – maybe disquieting – passages about the existential threat of AI to humanity: from Bill Joy’s warning that if AGI is discovered, then “the future doesn’t need us”, to an incredible anecdote about an investor who met with Demis Hassabis, the founder of DeepMind (an AI startup acquired by Google in 2014)  and remarked that “the best thing [the investor] could have done for the human race was shoot Mr Hassabis then and there”. It also contains some entertaining turns of phrase that are regrettably rare in Australian legal filings, from describing OpenAI as “Microsoft’s ostensibly not-for-profit golden goose”, to claiming that since OpenAI is motivated to deny it has achieved AGI (which, when achieved, would not be not included in the licence of OpenAI’s technology to Microsoft) to keep Microsoft happy, “AGI, like “Tomorrow” in Annie, will always be a day away.” 

OpenAI, of course, denies all these claims, insists that it has always been faithful to its mission of developing AGI for the good of humanity, and has publicly stated it will seek to have them all dismissed.  Less than a week after the filing, on 5 March, OpenAI published a blog post detailing the founders’ conversations with Elon Musk, claiming that Musk always knew that to raise enough money to compete with the likes of Google, it would have to attract investors with for-profit operations.  Open AI also says that Musk was told that it would be irresponsible and dangerous to make all OpenAI’s advances open-source and freely available to the public.  

As anyone who has done discovery for litigation knows, there’s an oddly voyeuristic delight to reading someone else’s emails, and the correspondence between Musk, Altman and Brockman attached to the OpenAI blog post are no exception; it’s a rare chance to read these giants of tech talk strategy to one another in words never intended for public consumption.

To top it all off, Musk is seeking a jury trial.  The big questions Musk’s claim poses, from existential threats to OpenAI’s duty to humanity, will be decided by 12 ordinary jurors – if it makes it all the way to trial, that is.

Is GPT-4 an Artificial General Intelligence?  Is AGI a threat to humanity?  Would OpenAI publicly releasing the details of their research help prevent, or accelerate, that threat?  These questions, some of the greatest of our time, may well be decided in the unlikeliest of places – The Superior Court of California.

Decisions Demystified: The Art and Science of Making a Good Strategic Decision

In this episode WA local, leadership consultant and Legal Counsel Bernard Hill joins the podcast to share his insight into the minds of strategic decision makers. Reflecting on what constitutes a good decision, how to get there, and what to do when you arrive.

00:00:13David Turner:Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. I think it would be an understatement to say that people can be unreliable decision makers. We’re sometimes impacted by biases, we prioritise the wrong information when we make decisions, and we reject information that might actually assist us in making a good one. But as lawyers our ability to make sound judgments is critical to our success in our profession, even more so for those in leadership roles in the profession. Now a decision-making model is a defined method that an individual or team can use to make decisions. Now this might sound sort of pedantic but a key part of good strategic decision-making is first determining what a good decision is. This can involve reviewing alignment with organisational goals and strategy, potential risks and possible benefits, ethical considerations and foreseeable and unforeseeable long-term impacts. Our guest today, Bernard Hill, brings a wealth of experience in both legal and leadership roles. He’s currently serving as legal counsel at the Catholic Education Office of Western Australia and he’s had over 36 years of service in the RAAF and worked as the town manager at New Norcia, the only monastic town in Australia – I’m interested to hear about that one – Bernard also consults on leadership and decision-making models. Bernard, thanks so much for joining me today on Hearsay!
00:01:53Bernard Hill:Thanks David, it’s wonderful to be here. I’ve listened to your podcast and I’m barely accepting that I’m sitting in a seat where so many other much more learned people than me have sat talking to you, so thank you.
00:02:04DT:It’s our pleasure. Now you’ve had a really interesting and varied career and I think there’s one role in particular I do want to hear more about. Tell us a bit about how you got started in the law and your journey to where you are today.
00:02:15BH:Yeah, I grew up – probably from aged eight or nine – determined I wanted to be a fighter pilot in the Air Force, which is probably not unusual for many boys. I’m not sure quite where that came from. So I think having that very clear sense of where I wanted to be – as hopefully we’ll talk about today – was instrumental and where I am now in terms of my understanding of decision-making. Because I was utterly determined. That’s what I wanted to be and clearly I didn’t end up with that outcome; so that could be seen as a failure or a bad decision. That was my determination and everything I did from a nine, ten year old was done with the deliberate intent of that decision or that action as much as you can at that young age, leading me towards that outcome. Subjects I chose at school, what I did at university, my activities that I did. Not in quite an obsessive way – although some people did say that I would be a poster boy for Air Force recruiting with all my posters on my wall and so on. So if you asked anyone who knew me at the time, they would say, “yep”; they pretty much knew what I wanted to be. And as I went through, I pretty much accepted that was what was going to happen until I had been accepted for training, wasn’t due to leave until late in my first year of university. So I thought; “oh well, I’ll go and do a year of arts” and with, at the time, the option, should I choose to do so – which I wasn’t going to – of getting into law later. And like most young people who can write a sentence, my teachers and parents always said; “oh, you make a good lawyer”. I had zero interest in being a lawyer. And I then went for my final eyesight test and was found to be deficient in my eyesight. So suddenly everything that I aimed for had come crashing down.
00:03:59DT:God, how crushing.
00:04:01BH:It was. My identity, everything, because everyone knew what I wanted to do. And so at the tender age of 18, my life was over. And so I found myself; first year arts degree that I hadn’t really put much effort into, for understandable reasons, suddenly needing to do something and needing to get the marks in those days to get into law. And so I put my head down for the final sort of three months, made it into law. And that was in my next handhold, I suppose. But I just didn’t want to be a lawyer. Here I was doing a law degree and one that was quite in demand at the time in Western Australia, there was only one law school. And so I had this mixed sense of well feeling fortunate and privileged that I got into law. And it was a profession that I obviously admired, but did not want to be a lawyer, did not want to be at university. Then I discovered the Defence Force had what’s called – I think it still has – an undergraduate scheme whereby at the time, if you’re a doctor or a dentist or an engineer, you could join the Defence Force and they would then pay for you to go through university. And then you do your officer training and you would then have what’s called a return of service. So you’d studied for three years, you did three years plus one. Very clever way of the military getting trained professionals through civilian universities. So I went and looked at that, but there was no legal officer undergraduate scheme. And I asked recruiting, “well, why not?”. They didn’t really know. And long story short, 18 months later, they said; “well, we’ve now got an undergraduate scheme for lawyers”. And so I applied for that and I got accepted. So suddenly I was now back on path somewhat, not going to be a fighter pilot, but being in the Air Force. I graduated from law school, did a year of articles that affirmed that I didn’t want to be a lawyer. And although I had a wonderful principal who taught me a lot of skills I still use to this day. And I think that was also very formative in me, in the sense of the law as a noble vocation. Finished my articles; got admitted. I went off to officer training school. And that was wonderful 17, 18 weeks of just starting from scratch and learning, if you like, the profession of arms. And so not a lawyer doing all the officer out in the bush type things with a bunch of really good people. And so that just reinforced that, yes, I’d chosen the career as an Air Force officer, that actually I think what I was really after as I’ve gained to understand over the years. And through my Air Force career, had various postings around the place, was fortunate – and I say that very sincerely – not to go to war. I claimed that when I got out of the Air Force, everything went to hell in a handbasket because I got out just as Timor broke out and then Iraq, Afghanistan. But have remained a reservist. And so that’s why I have that extended period. So I’m still a reserve legal officer. And my final posting in defence was the director of legal training. And that capped off what I really enjoy, which is delivering training, because I firmly believe in that saying; “you teach best what you most need to learn”. And often having to teach something means that you have to know it better yourself. And I think that also feeds into good decision making. And so what do you do after you’ve finished in the Air Force? Well, a mate of mine was setting up an IT startup company. And I jumped into that. So I went from the relative security of the public service, the military, into not knowing whether I was going to have a job in the next two weeks. And that was a real culture shock. But I was still relatively young, single. So I did that for three years in the IT industry and the startup industry. That company was quite successful and got bought out. I left and then returned to Perth where I was born and spent a year kind of consulting. And in that year, my now wife and I went to the monastery town of New Norcia, which is about 130 kilometres north of Perth. And it was established by Benedictine monks from Spain in the 1840s in Western Australia, who came out as missionaries to the Aboriginal people of the area. And in the years since it’s been through various phases, one of those was schools. So there were boarding schools for boys and girls. And then those closed down in the early 90s. And it was still a monastic town. So there was a monastery there. But the monastery, other than its farm, didn’t really have any sense of outlet for its mission, which again, is another dichotomy. And I love dichotomies. I love contradictions and the tensions because the word monk comes from the Latin “alone”. So the idea of a monk is to be alone in your cell, as they call their room, and to be alone with your thoughts and to listen to God and to pray and also to work. But the monks also recognised that if they’re seeking God – which is what they’re supposed to be doing in their prayer and their thinking and their listening – that God is in other people. And so historically, and I’m talking 1500 years, when the traveler comes by your monastery, the Rule of Benedict, the rule by which the monks live by, says you must hasten to greet them and bring them in and you wash their feet and you give them a bed. So this monastic tradition of hospitality. The trouble with New Norcia was that by the time I got there, there was about 18 monks by the time I visited. And there were 80,000 visitors a year coming to New Norcia. And so they were trying to balance their need for quiet solitude with running very busy, if you like, businesses; a hotel, museum, art gallery, education centre, but still attend to their prayers. And they weren’t doing it very well. So this became apparent to me and Belinda when we visited for the Easter weekend, as lovely as New Norcia is that the monks weren’t coping. We got talking to one of the monks. When we left, I said to Belinda, because I was consulting; “well, I might give up a day a week to come up and help them out”; because they needed just things like policies written and some structure. So I emailed and asked if I could do that. And they counter offered and said; “come and run the town”. Yes, which I said no to for various reasons. And my now wife wasn’t yet staying in Perth. She was going back to England to London where she was studying. Anyway, they said to her; “come and run our education centre” because Belinda had an education background, a master’s in education. So after initially saying no, again, like one of these things, we pondered it and thought; “what a wonderful opportunity”. And so I started as the town manager of New Norcia from 2004. And that basically involved running the business side of the town. The 70 staff, the 80,000 visitors, the usual activities that go into running a business, albeit this one was a town. And so human resources, policy writing, all those sorts of things, but with a monastic bend. So that experience was obviously formative because I was trying to balance those functional end result things with still being consistent with the monastic values, which for New Norcia was a European indigenous monastic values that they were seeking to apply. So I did that for four years, and that was pretty much 24/7. So that’s 12 years in any other job. And Belinda and I left and came back to Perth. And I then found a role as the director of professional standards for the Anglican Church. What do you do after you work for monks? Well, you go and work for the Anglicans. And that role pre-Royal Commission into institutional responses to child sexual abuse was looking at the historic allegations of child sexual abuse in the church in Western Australia – in the Anglican Church; the diocese of Perth, Bunbury and Northwest. And so suddenly I was plunged into this role where I was almost struck dumb. So after a career of pretty much structure, discipline, working to guidelines and a system, I found myself sitting on the end of the phone or in a room or in a coffee shop, listening to older people talk about horrible things that had happened to them in their childhood. And there’s not a lot you can say. So you have to just listen and you can’t give legal answers. You can’t give even pastoral answers. You just have to listen. And that was challenging for my brain – feeling helpless, feeling wordless. And for lawyers, our words are often our tool and the way we think. And I couldn’t do that. That was a discipline. And from there, I went to Curtin University as a director of professional standards. And that was a role that was set up post some issues that Curtin had that were looking at the behaviour of staff towards students. A lot of students at university are vulnerable in terms of – there’s a power imbalance. And so Curtin was eager to address that and to have a mechanism by which students and staff could seek redress if they felt that they had been bullied or harassed or in some way taken advantage of. And I stepped into that role and that role; I had staff, and I had… I think when I started, there was about 268 open complaints that we had to address. I did that for a couple of years and then wanted a change. And a position at Catholic Education Western Australia came up. The incumbent was taking leave for a year. And they said, come in and just do it for a year. And three days a week, as it was. And 11 years later, I’m still there. And fortunately, and very rare for in-house counsel – don’t tell anyone – I’m there for three days a week. And so I can do other things, as you mentioned earlier, do consulting, leadership, Air Force work. And actually, I think that’s also the secret that I’ve learned is that having that mixture of sort of a portfolio career of having, if you like, a job, what I call my real job, the Legal Counsel for Catholic Education Western Australia, which has 163 schools throughout Western Australia, 80,000 students. It’s across an area the size of Western Europe, and about 10,000 staff. So that’s a significant role in terms of advising the decision makers in Catholic Education, the Executive Director and our principals. But on the side, so to speak, I do other work. And I’ve said to my boss that my boss gets free professional development from me, because I’m taking what I learn in my other roles, my Air Force role, my consulting roles, and bring that back into my Catholic role, and vice versa. So for example, during the Royal Commission that I mentioned earlier into institutional responses to child sexual abuse, I was obviously heavily involved with that, and learning from that and following that for the bishops and the Catholic Education Western Australia, then the Air Force suddenly found itself involved in a case study. And so they looked around and thought, we couldn’t possibly have anyone that would know about young people and child sexual abuse. And there I was as a reservist. So they called on me. So I was able to use what I’d learnt in my in-house counsel job to support the Air Force in my reserve job.
00:14:57DT:Really is a testament to the value of a portfolio career and to having those, I think sometimes it’s a bit of a glib term, but sometimes we call them slashies.
00:15:05BH:Yeah, side hustles.
00:15:06DT:Side hustles, sometimes I feel like that term glorifies having a second job. But I do really believe in the benefit of having that multidisciplinary approach even within your own career. And what strikes me about your career path is – you say you love contradictions. I can’t think of a greater contradiction in terms of the discipline of the places and the structure and the rigour of places that you’ve worked going from the military and monastic discipline to working in a startup or working as a sole trader with a consulting business, completely different approaches to decision making, which is what we’re talking about today. And I think having that experience in organisations not just of different sizes but of different values, of different histories, of different ages, of different missions gives you, I imagine, a pretty global perspective on what makes a good decision and how you make a good decision in an organisational environment.
00:16:04BH:Well, I like to think so. And the thread that runs through all those is what I like to think about as the common language of the law. And by that I don’t mean statute and ratio decidendi, whatever you might want to say epitomises the law; just the mode of thinking, the disciplined, processed way of thinking. And indeed, we’re fortunate in Australia that as disparate as those roles may be, there’s still a thread running through it. And that is that we live in a society of laws. And so even the monks – 1500 year old organisation that evolved out of, if you like, the ruins of the Roman Empire. The founder, Saint Benedict, realised the need to have a rule. And so the Rule of Benedict, which was written 1500 years ago, is still followed today. The monks in New Norcia, as we speak and as people are listening, are still following the rhythms of the rule. They’re praying seven times a day. The Rule is the source of authority for what they do. And so again, that tension of this authority and yet the freedom of the human mind to wander, but coming back to those rhythms and stability. And we see that in our schools as well in that role, the need for stability for students to learn, the need for structure, predictability. And so I think the law does give you that. And often, and it’s only when you can step out of it, as I have the privilege of doing during my week, you can look back into an organisation or the law and see those benefits. You can see beyond the stereotypes of the law and the structure and the discipline in thinking. And there’s the saying; “discipline is freedom”. And it’s very true that to know the area in which you’re operating in and I often say that to principals; “here is the extent of your authority. Feel free to exercise your discretion within that, because at the end of the day, that’s where you can put your foot down and say to a parent or whoever it may be, no, this is my authority to make this decision”.
00:17:57DT:Absolutely. I completely agree with you in having that perspective on the law improves your performance as a lawyer and improves your performance in other domains. In my experience, I am a lawyer, of course, by training. In our technology startup, I also do software development and engineering. And having that engineering perspective on the law and that legal perspective on engineering, I think, improves both tremendously. They’re both ordered ways of thinking, but there are different traditions and there are different heuristics and frameworks from both. that I think can contribute there. When you’re describing New Norcia, one of my favourite books is The Pillars of the Earth by Ken Follett. It’s about a town called Kingsbridge Priory. It’s a monastic town. I was just imagining Kingsbridge when you’re describing New Norcia, because in the same way in the book, the town, the lay people have a very close relationship with the monks who are theoretically cloistered, but in reality, a very important part of the community.
00:18:49BH:That book is sitting on my bedside table, given to me by one of our former principals. He’s now moved to the Big Smoke in Sydney and he has given me that book to read. So now I definitely have to move that up my pile.
00:19:01DT:Look, it’s intimidating width, but yes, couldn’t recommend it more.
00:19:06BH:Yeah. Well, not having read the book, but that’s why New Norcia again was challenging. Because, for example, every morning the abbot who is in charge of the monastery, he would meet with ostensibly my boss, who was the prior. And the prior is if you like running the monastery, the business side of it, for want of a better term. They’d hate me saying business, but I think for our listeners I’ll say business, just the operations and day to day. They would meet every morning at eight o’clock. And so they would have mass at 7.30 and there are bells chiming. So you can never be late because there’s these bells chiming every 15 minutes. So at eight o’clock, they would meet straight after mass and then at 8.15 on the bell, I would step into the room and meet with them as the town manager. So that would give them 15 minutes to talk about monastery business, which monk was doing what or whatever they needed to do in private. And then I’d come in and we’d discuss any town business for that day. Now I would sit at the head of the table. The abbot would be on one side and Dom Chris, the prior, would be on the other. And I’d listen to them and watch them back and forth. And in the monastic rule, the rule says that the abbot is like Christ in the monastery. Wow, that’s pretty powerful, godlike. And the abbot used to say to me, he could always work out people’s understanding of Christ whenever he said that, what their reaction was, because the people went; “oh, you think you’re pretty good that you’re like God”. Clearly in his mind, didn’t understand the servant leadership of Christ and his ultimate sacrifice. But on the other side of the table was the prior, one of his monks. Now he had a vow of obedience to the abbot. So he had this tension of the abbot being subservient and wanting to serve his monks and the rule saying basically if he failed to do so, he would suffer for all eternity. And on the other side, an obedient monk who had to say; “yes, father abbot”. And I’d watch these two and I’d watch them balance, if you like, the spiritual in the case of the abbot, the mystical with the earthly. Well, as Dom Chris used to regularly say; “monks don’t live on air”. They had to make money. And that was their home. And if I didn’t succeed in ensuring they made their budget and made a profit, in his words, they’d “go down the gurgler”. So I’d watch this tension and became comfortable and saw the way it actually worked out. And so that was the other thing I was able to sit back and observe for four years. And even New Norcia itself is a contradiction in the sense that the original monk, salvado, came out to save the souls of the Aboriginal people. And we’re speaking as we’re recording this, it’s Reconciliation Week. So this is very powerful. He came out with that best intention. That was what he wanted to do. He wanted to save the souls of the Aboriginal people in the ignorant way that Europeans thought that the Aboriginal people were nomadic people wanting to be saved. Well, he and his party ventured out to walk into the bush and of course soon found themselves lost and dying. Well, who saved them? The Aboriginal people. And so they saved the lives of salvado at his party. And that made a huge impression, a huge humbling impression on salvado and why he continued to serve the Aboriginal people until his death. So those contradictions are full and just were all around me at New Norcia. Again, the monks living alone and 80,000 people beating a path to their gates.
00:22:25DT:And it’s such a great, again, a dichotomy between the pragmatic and the values driven, I suppose. And it really leads into the first question I wanted to ask you about strategic decision making, which is what makes a good decision? I think we often talk about decisions that are aligned with strategic goals or aligned with organisational values – but you have to eat. So what in your view makes a good decision?
00:22:51BH:Yes, and I try to avoid the five steps tool, but I’m going to have a five step tool because same as me, when I listen to people talk very abstractly, I think; “yeah, but what do I do?”. And so the first thing I’d come back to is what I spoke to from the outset of my sense as a young person of wanting to be a pilot in the Air Force. And I think it’s what I call having a widget. Now the widget – being from an engineering type, you would understand a term widget. IT people understand the term widget. It just means the thing you’re building or something that’s tangible that you can potentially measure. Now some people object to that term when I do presentations and say; “define your widget”. It’s too heartless and cold, but I’ll come back to that. But having a sense at least of; “why am I doing this work?”. And I talk to people – I start off in my presentations by inviting the group privately, you know, in a couple of minutes to work out or to think about what their personal widget is. What are they doing with their life? What’s their outcome? What is it that drives them? Because what I’ve found is a lot of workplace conflict arises from people not being able to reconcile their personal widget, whether it’s their family or they want to be a poet or a writer with their workplace. And they act out a lot of that tension in the workplace. Well, I invite people to think; “look, why are you here personally? Your whole life is not this workplace or this organization. So think about that first and now have that in your own head and heart. Let’s talk about what is your actual widget in this job? What are you being paid to do? How’s your boss measuring what you’re doing? What’s your boss’s widget? What’s the organization’s widget? Because you’re here to achieve those outcomes”. So when we’re confronted with a decision, we should be asking; “well, is this consistent with my widget?”. And that may come into play in values conflicts. It may come into play in career choices. If my family is my widget, but my promotion means being away from my family, am I achieving that widget? Because eventually that widget is going to come home and grind into you if it’s not meshing with your professional widget. Very few people, I think, and bless those who do, can combine their personal widget with their work widget. But those brave souls who do go and do that, I think have a greater level of satisfaction. So we need to define what our widget is. What am I here to achieve personally? And what does my boss want me to achieve? And often it might take a conversation with your boss and you might find your boss may not actually know. And so having that conversation is helpful. We try to do that in the workshops I run. And so having that sense, and then I talk about the five steps to a good decision, and I suppose I should define now what a good decision is. And this is my definition and I tweaked this over the years and I think it works. And as a lawyer, we know words matter. And so words are important. And so these words hopefully are chosen and have meaning. And that is that a good decision, and notice I don’t say right decision or correct decision. A good decision is one that advances you towards where you want to be, which means you have to know your widget. Because if you don’t know where you want to be, how can you measure the good decision? Now, some people can. They can just throw caution to the wind and that’s fine. But in some ways there will be a widget. And I’ve had some pretty robust discussions with senior leaders over the years where they’ve gone; “well, my widget is this”. And I’ve thought; “hmm”. But then I said to them; “okay, that’s your widget. It’s not for me to tell you it shouldn’t be that widget or it doesn’t fit with the organisation because that is going to be your benchmark of your good decision. If you think that’s what you’re here to achieve”. So a good decision is one that advances you towards where you want to be.
00:26:24DT:So like your North Star or something.
00:26:26BH:Yeah, exactly. Having a reference point. Yep, exactly right. I use that analogy a lot. So what a good decision making, again, important, is a deliberate process of enquiry that advances you towards where you want to be. So that’s important. It’s a conscious, deliberate, intentional, mindful process that you’re following. And I’ll get onto the process that advances you towards where you want to be. A deliberate process of enquiry. So get it out of the gut. And we may talk later about instinct and the role that plays. And make it intentional. And this is what I’m going to do. And then you follow that process. And therefore you’ve left, if you like, breadcrumbs behind. So wherever you end up at the end of that decision, you’re able to then reflect; “gee, I didn’t get where I thought I was going to get. What did I do, quote unquote, wrong?”. Which I would argue you probably didn’t do anything wrong because it has advanced you closer to where you want to be. And, sorry for all the military analogies, but I use the analogy of a submarine that basically beneath the surface navigates by sending out sonar pings. And so it’s constantly sending out a message to the world, hitting an object or not, which bounces back to the submarine and it adjusts its course. And it can navigate – in the case of a nuclear submarine all around the world – without being on the surface by pinging, by interrogating its surroundings as to where it’s at. And that’s essentially what we do each time we make a decision. So digressing slightly, when I started at one of my jobs, I went and spoke to one of the senior people and I said; “look, you’re bringing me in to do this role. What do you think is wrong with this organisation?”. And they very quickly said; “no one here will make a decision”. And I thought, okay. So I followed that up and I said; “why do you think that is?”. And they very quickly said, so they clearly thought about this, “because they’re afraid of the consequences”. So obvious follow up question; “what are the consequences?”. And this person said; “there are none”. So I left that meeting perplexed and thinking; “well, if there are no consequences, why wouldn’t you just be making lots of decisions? And who cares?”. Well, after some reflection, I realised that’s like a submarine that pings and gets no response. It doesn’t know where it is. So it usually just stops or in that analogy, it is reluctant to move forward because it doesn’t know what’s around it. Again, the dichotomy of that is every time the submarine pings, it’s announcing its position to the enemy. So it’s making itself vulnerable. So every time we make a decision, we’re declaring to the world; “this is who I am, this is where I am, this is what I stand for”. So whether that’s speaking up in a meeting or making a career change or giving a legal opinion, you are laying it out there for the world; “this is me”, and you’re immediately making yourself vulnerable. So the problem in that organisation was people didn’t want to make themselves vulnerable. So they basically just did busy work. And so a good decision making is a deliberate process of inquiry. That’s you interrogating the world, making decisions, getting feedback, and then working out where I am now on that map heading towards my widget. Now, there’s a lot of talk around leadership. So the final element to that is, and why I believe good leadership and management is all about good decision making – which nobody teaches or very few people teach it, ironically – is in the process you’re making good decisions. And if in the process, you’ll have this deliberate process of inquiry, and you look around, and there’s at least one person following you, you’re a leader. Because what you’re doing is casting out breadcrumbs, you’re making a path that other people can see you follow. And so the problem with a lot of leadership is it relies upon positional power, people just going; “well, I’m the boss, we’re going in that direction”. And because of that positional power, we all go; “yes, boss”, and we follow. But the problem is that you’re not laying out any path for others to learn from good or bad. 
DT:For yourself to learn from…
BH:Correct. Yes, exactly. So that should be where it begins. It shouldn’t be; “I want to be a leader”. It should be; “I want to do something that I think is valuable”, whether it’s a moral value or an economic value or sporting value. And if you turn around and other people are following you, then you’re a leader. And some people may not ask for that. But if you do seek a leadership role, you need to be showing your working out. And that’s what lawyers are very good at doing. We’re disciplined to showing our reasoning as to why we got to where we are. So that’s why I think discipline is the law. So a good decision is one that advances you towards where you want to be and good decision making is a deliberate process of inquiry that advances you towards where you want to be.
00:31:08DT:Absolutely. Sort of reminds me of the old saying about forecasting. The one thing you know about any forecast is that it will be wrong. And there’s almost a fatalism in that in making decisions in uncertainty and making decisions that are new that you can’t really assess the decision based on its outcome, because there’s no real data to know what the outcome is likely to be before you’ve made it. And so of course, a good decision and good decision making has to be one that’s about the process of getting there and about articulating that process as well, and recording it so that those unknowns become knowns. Now, you talked us through a five step methodology briefly, and appreciating that there’s maybe not as many resources on this topic as there should be. But are there any frameworks or methodologies that you use in your presentations for assessing a decision or making a decision?
00:31:58BH:Yes. I presented to groups of engineers over the years, and usually at this point of the presentation, they’re looking back at me glazed eyes, this is all very namby-pamby you know – show us the equation. So that point where I talk about the five steps, and again, this is just a framework that has worked for me. And I could potentially say each step is the most important one, but so forgive me if I do. So the first is so critical. And if you do nothing else, it’s this and step one is step back. Now, I’ve done a lot of reading over the years, and you don’t often see that you may see it in different ways, because there’s this emphasis on decisiveness. And yet, I’ve seen so many examples of the power of stepping back. And so by stepping back, I mean, I think it’s Viktor Frankl in Man’s Search for Meaning talks about a famous quote he has of; “between stimulus and response, there is a space. In that space lies our choices, in those choices lay our freedom”. So in every situation – and I can give some examples in high tempo critical military situations – there is a space, you may not have command over that space, but you do usually have command over an element of that space between the stimulus and your response. So what I say in practical terms is that in that first moment or days or whatever it might be of having to make a decision, surrender to your emotions. I say to people, get on LinkedIn when your boss is annoying you. Get on seek.com, start looking for another job. Lean back in your chair, stare into space. Google something, ring a mate and have a moan, go home and have a lemonade or six. Just be yourself, be authentic. Surrender to what is traditionally seen as a weakness of my emotions. And because that’s authentic, that’s who you are. At New Norcia, I would be at my desk and I’d get an email and it would be annoying. It would be something that’s happening in one area of the town, something had broken or someone was unhappy. And I’d be tempted just to sit down and pound back, a very logical, very power-based solution to that. I could have done that in 30 seconds, two minutes. What I often did was I got up from my chair – and fortunately, most of the areas of the town required a five minute walk for me to get to my office. It was incredible the number of times that in between getting that email and getting up and walking through the town and walking beneath the trees and seeing a few tourists and having a chat or whatever, and getting to the place where I needed to speak to somebody, my whole outlook had changed. And the solution that I thought was appropriate and probably was at the time was either different or framed differently or received differently. And so I learned that space was very important between my emotional, neural, hormonal responses and my ability to engage with the decision, often through another person. So that stepping back, I think again, is very important. So, for example, in the military, when I was at Defence Academy, there was some sort of scandal had happened and there was this snowball response. And I remember General Peter Leahy, who was retired at the time, former Chief of Army, saying it would have done well for the Defence Academy and the Minister to have followed the infantryman saying of; “contact, wait out”. And I’m not an infantry person, but what that means is when an infantry platoon gets under fire from the enemy, that means contact. And what the patrol leader will say is radio back to the boss saying “contact, wait out – leave me alone, give me time to sort myself out”. And so there is that period of even in that high tempo situation of the decision maker needing to pause and needing to step back a bit and see what’s going on with bullets flying all around. And so the military creates that discipline of doing that. An air traffic controller I knew, who taught air traffic control, used to say he would train the people in the air traffic control saying; “look, there are drills…” – and we may come back to that later about where drills fit in with instinct – “there are drills you follow and then when something happens, when aircraft are entering into the wrong airspace, you know what to do in half a second”. But you might have six seconds in which to make that decision and execute it. So in that five and a while, my drill says to do this, but I’m now going to reflect on what’s going on and basically do something else that will save Qantas 10,000 pounds worth of fuel or whatever it may be. And I think that’s an important discipline in decision making to be able to step back and assess the situation. But more importantly, as I said, to allow yourself to be human before you get into this mode of being boss or being lawyer; to go, “I’m entitled to feel really sucky about this and I’m just going to allow myself to do it”. The reason we don’t see that in – whether it be the President of the United States or the Prime Minister – is that’s a personal moment. They don’t say; “well, after the Cuban Missile Crisis, John Kennedy went off and did what he did or saw one of his mistresses or went for a swim in the White House pool”. We don’t see any of that. But if you do look at the leaders lives, they did have that personal outlet.
00:37:14DT:And taking that personal moment is an opportunity to separate it from the decision as well. Step two?
00:37:22BH:Yes. So step one, step back. Step two, define the issue. So there’s topics and there’s issues. The topic is what’s presenting. I suppose a doctor would say they’re presenting symptoms; “how is this being presented to you by the client?”. Seeing beyond that and going; “what’s the real issue here?”. Now that again might sound self evident. So often I’ve learnt in my own life that instinct sense of I know what the problem is. I know the client’s problem. You actually take the time to, through talking to the client or analysing or thinking, going; “actually, I can see what lies beyond this. This is the issue. And I need to define that. I can’t take for granted that I and the client know that”. And so in complaints management, we talk about saying to the complainant; “what is the outcome you’re hoping for?”. Very important language which complaint managers will know about. Hoping is doubt creation. So it’s not; “well, what are you going to get?”. It’s; “what are you hoping for?”. And I found in my time whenever I pose that to a complainant, quite often they’ll tilt their head to the side and they’ll look up a bit into space and they’ll go; “the outcome I’m hoping for…”. Then suddenly they’ll come back on and go; “why do I want this? To make sure that as a result of what’s happened to me, it won’t happen to anybody else or whatever.” So that process of defining the issue is very important, at least for yourself, but also for the client. It may be different to what you thought it was, but then you can at least you’ve articulated it.
00:38:37DT:Analogously, it’s a little bit like in negotiation theory, the difference between an interest and a position. The position is the topic and the interest is the issue and getting to the root of that. We had Steve Mark, the inaugural legal services commissioner on the show just recently. And he spoke about that from the perspective of negotiation ethics, but also from the perspective of understanding a client’s needs and serving those needs in a negotiation. And the difference between, you know – is the client’s best interests served by doing what they say or by understanding the interest? Even if that’s not overtly necessarily the same as the instruction at first blush.
00:39:15BH:Yes. And many of your listeners would have had the experience that I certainly have of having that define issue step and the client saying to you; “gosh, that was really helpful. Yeah. Well, thank you for that help”. And you actually think…
00:39:26DT:… I actually haven’t done anything yet!
00:39:30BH:You’ve given them that clarity because you have that objectivity if you like. So that’s step one; step back. Step two; define issue. Step three is; assess the information. So actually look at the information in front of you and assess it. Weigh it up. And that’s black and white lawyering really, but in decision-making to look at the information, evidence, whatever you want to call it in front of you and just assess it in a sober fashion. And step four is; give a hearing. And so keen listeners would note a lot of this is this steps I’ve derived from – I’m a bit of an admin lawyer – so from procedural fairness. And I think that procedural fairness is so powerful and I’m often drawn back to that sense of giving a hearing. Now giving a hearing is very technical in law, but more generally it’s just allowing any person that might be affected by the decision to speak and to put their case and for you to listen to what they have to say. And there’s a number of obvious reasons as to why that would be the case, but not least of which tactically, if you’re out there going; “gee, well, how’s this going to get me the upper hand?”. The best case is going to come back against you and you make the decision from a person who has a personal interest in it. So you might go; “well, I think my decision is going to affect these three people this way”. But not hearing from the person; can you really go, “wow, I didn’t think about that. I’m going to have to be prepared for that. It hasn’t changed my position and my decision, but I’m going to have to be prepared for it”? And as some of your guests may have said, there’s many studies have shown that simply by allowing a person to be heard, often if the decision goes against them – I’ve seen figures as high as 84% of people who don’t have the decision go the way – say; “I’m prepared to accept it because I felt listened to and therefore it was fair”. So the hearing element. Now you can frame that however you want the hearing – not necessarily the technical way of the law. So that’s the fourth step. And finally is to check for bias, to examine your own mind; “well, I’ve now looked at this based upon information, based upon interest”. I’ve hopefully purged myself of all my initial rage. Am I looking at this from an objective viewpoint? Now that can be very difficult, but at least bring it to your mind. And when we bring something to mind and we make it conscious, it’s therefore less likely to be influencing us beneath the surface, which I think is important. And then after those five steps, you make the decision and start all over again, because there will be another decision that will flow from that. But at least now a bit like a black box, you’re able to go back and see; “well, here’s my decision making process. I can understand now why the decision didn’t go well, because I may not have done this right”. And that’s what I talk to young leaders about them to avoid the positional power, because not only are your followers unable to then learn from your decision making, but your team is unable to learn because you aren’t able to open up the black box and see now what happened here and how did it happen?
00:42:20DT:And I suppose the other part of that, we’re talking about the post-mortem there, analysing a decision that didn’t go well. When you happen upon the golden path and you’ve found a great approach that you should be able to replicate, well, it’s difficult to capture that lightning in a bottle if you don’t know how you got there. And I suppose once you’ve discovered the process for making the right decision for a particular scenario, this might be a good chance for us to talk a bit about instinct and the role of making quick decisions. You talked about drills there in terms of having almost that muscle memory, I suppose, to make a decision quickly based on a disciplined, considered process. It’s the cop-out answer, isn’t it really? Well, what about instinct? Well, the answer is that you can instinctively make a decision based on a process if you’ve done it ahead of time. Do you want to expand on that a little?
00:43:07BH:Yeah. And again, privileged in the military to see this in action a lot. Now again, fortunately, I never saw it in capital A action, but watched people, very good people doing this. And my first exposure to this was; I was on exercise and we were drilling Australia being attacked from the north. And I was sitting two seats away from the commander who was doing that. And it’s just like the movies, big screen on a wall. We’re all sitting in a darkened room watching the plots on the map. And the commander turned to me, it was early days of lawyers being in this area, which was not exactly greeted with great joy. This is early days, pre-Iraq and Afghanistan. These days, lawyers are side by side with the commanders. I was almost side by side. And the commander turned to me at the end of the day in the bar and said; “oh, sorry, I didn’t engage with you today, but I didn’t have a neuron spare”. He was so busy. So me watching him and watching commanders do their work is inspiring to see the things that they need to juggle. I always wonder how war history is written based upon what I’ve experienced. What I wanted to say to the commander in the bar was; “well, sir, you better learn to have a neuron spare. That’s why I’m here. I’m here to basically almost be a symbol of the law”. And by that, I sort of meant – and I didn’t say this to him because he was quite senior to me – that when I teach the law of armed conflict, which is a law of war, I usually survey the room and usually young recruits at Defence Academy or wherever they may be. And I ask them; “what’s the role of the military? You’ve joined the Defence Force, what’s the role?”. That’s me getting them to define the widget. You’ll get the usual pat recruiting answers, defend Australia and her interests. I’ll go; “no!”. Protect our borders, “no!”. Peacekeeping, whatever they say; “no!”. So I’m pretty blunt. Now, usually be one kid that puts their hand up and says; “to kill the enemy”. And I’ll go, “yep”. Now, this is very unpopular, but I think the taxpayer would like to think that’s the role of the military to have the capacity, dormant as it might be, to kill the enemy. So I say to them; “the role of the military is to apply the maximum amount of force on the enemy permitted by law”. So I say; “that’s me here, I am the law part”. So sitting alongside the commander, who’s got this massive amount of violence at his fingertips – and they talk about officers in the military being managers of violence – because you’ve got very young people that have got violence at their fingertips and they can technically unleash that. The law is a constraint, we wear the hats, that constraint or force multiplier. Anyway, so I had this conversation with him. And even the Geneva Convention talks about – or the additional protocols to the Geneva Convention talks about the military drilling – applying the law of armed conflict. Because as you said earlier, rightly, we need to have the discipline. So fast forward a couple of days, and something happened, I gave him advice, and it gave him a massive operational advantage. And so he could see the law is often a force multiplier, it’s not just a constraint, or if it is a constraint, it actually can be a force multiplier. As we’ve seen in recent times, sometimes our soldiers not following the law can cause a massive effect on our capability more than the enemy ever wielded. So the law is an important element of that. So the commanders were learning to drill, he saw my benefit of unleashing his neuron from me to assist him. The air traffic controller, as I said earlier, is teaching the air traffic controllers to be able to drill at making those decisions at a basic, responsive level, same as a soldier; “contact, wait out”. This is what you do, bang. That frees up the person that bit removed, the patrol commander, to be more creative. And you’re dead right. After a while that builds up a muscle in your brain of making those decisions that then can allow instinct to come into play.
00:47:00DT:Now, this idea of making an ordered systemic decision and making a gut instinctual decision, a number of different authors have talked about this, Danny Kahneman calls it system one and system two thinking. That approach of applying the drill in a scenario of… I suppose it’s a high tempo scenario, but it’s a known scenario, you have the capacity to prepare for it. It’s because there’s that opportunity for process in advance. What about the unknown unknowns, the high tempo decisions that have to be made without prior knowledge?
00:47:42BH:Yeah, and that’s the area in which the military operates. The military starts out from the sense – there’s that great quote, I can’t remember, some dead German strategist said; “no plan survives first contact with the enemy”.
00:47:53DT:Is it Clausewitz?
00:47:54BH:Von Moltke? Could be Clausewitz. And the more contemporary version of that, I think, was Mike Tyson. What is it? “No plan survives the first punch” or something like that.
00:48:04DT:I think it’s like everyone’s confident until they get punched in the face.
00:48:08BH:Yes, yeah, yeah, yeah. So I certainly understand that. And gosh, I so admire those barristers who are standing up there in the courtroom and have their structure and have the law and get thrown that question by the judge. And again, I can only say that there is the discipline, there is the process that you can draw back on in those moments of chaos. And I’ve dealt with special forces soldiers who go; “I love the chaos”, because it’s almost like that’s where their individualism comes into play. And arguably, you mature as a lawyer or as a manager or as a person in those moments where you are off the map. And I was reading recently, I don’t know whether this is apocryphal, but of a senior barrister appearing before the High Court – might have been on one of your podcasts, actually – where he was asked a question by the bench; “do you agree with this proposition?”. And he stood there in silence for 55 seconds and then just said; “yes”. And I don’t know that many of us would tolerate that, but the bench tolerated it because they knew that he was doing his job and that they trusted him and he was reflecting. And this urge for us to have the quick answer, and certainly coming on this podcast and thinking; “gosh, what’s going to happen if I don’t know the answer?”. But as much as you can, and again, I’m talking about split seconds in air traffic control, soldiers coming under contact, you can, if you’re drilling, find in that moment of chaos that calm. And a lot of soldiers will talk about this, that calm. Yes, that’s coming from the drill, but that’s coming from that personal confidence of, I’ve spent years making decisions on a process. I’m in chaos here now, but my instinct is going to take me here. And if I have a widget, at least if it turns out bad, and most of us are not in situations where our lives are at stake, I can, as you say, do that post-mortem. Because I think your point is an excellent one that very often we hear people say; “what went wrong?”. Rarely do we hear; “what went right? Let’s sit down and examine how we achieve this so we can learn from it and continue to apply it”.
00:50:16DT:Absolutely. Just going back to this idea of instinct and the idea of that being the culmination of the drilling and the ability to apply that in that brief moment of calm in the chaos, is that what intuition really is? I mean, I think sometimes we talk about intuition as this kind of innate or almost divine kind of quality; “I just know, and it’s something about me”. But is it really a product of experience, a product of that ordered way of thinking about the scenario or the decision in advance?
00:50:49BH:That’s my view of it. There are people cleverer than me in around brain science and so on who probably explain to that the neural pathways. But I remember being taught very early on by a military person about the difference between unconsciously incompetent. So if you’ve never seen anyone juggle, you’re unconsciously incompetent. You don’t know what you don’t know. The moment you see someone juggle, you’re consciously incompetent. You don’t know how to juggle. You couldn’t juggle. What is this going on? You then take the juggling balls in your hand and you attempt to juggle. You’re consciously competent. You’re having to focus on what it is that you’re doing. The master, I suppose, is unconsciously competent. You can juggle, tell jokes, and perhaps throw a chainsaw in here as well. And so in our processes of thinking over the years, all these decisions I could say from wanting to be a fighter pilot as a nine or 10 year old, I was making decisions that were leading me towards that. So I think what serves the instinct is the widget. So we haven’t talked about ethical decisions. Well, if we have an ethical widget, if we have an ethical framework of our thinking, our instincts are built around that. That sense of the – and there’s a lot of science you probably would have read about really good sports people. They can’t actually fathom how they’re able to react so quickly – tennis players, cricket players – because they’re actually making a decision before the eye can see or whatever it might be and probably bungling that. But this sense of there’s some other element that’s at play in a master of what they’re doing. And I’m sure that’s the culmination of many years of doing something consciously that the instinct is built up. And that’s why the military does what it does. As we speak today, there’s lots of people doing tedious drills so that when that chaos happens, their instinct hopefully built up over those years. Mindful, this other element, that often if the instinct will get them killed because the enemy is prepared for their instinct. So there’s that extra layer. Sometimes the predictable action in really difficult scenarios is the most risky because it’s predictable to the enemy.
00:52:56DT:And I think also, we know this in the legal context, I think we spoke about this with Jennifer McMillan last season of the show, the most professional indemnity complaints or the most professional indemnity claims come from people who have practiced in that area for a long time and have that unconscious competence but have maybe lost the discipline of approaching that task in an ordered way because there is an assumption that; “well, I’m unconsciously competent about this task now. I don’t need the discipline of a process anymore. I’ve internalized this”.
00:53:31BH:Yes. And certainly, I had a pilot friend who once told me he was coming up to some, I think it was a thousand hours or 10,000 hours or something. And he said; “this is this area, this time when most pilot accidents occur”. And so there’s a couple of things out of that. You’re right. So how do we raise our instinct into our consciousness? Well, as a lawyer, having to do CPD every year sometimes makes me realize the things that I may have assumed. And then I do some CPD or listen to this podcast and one of your guests and go; “I didn’t know about that area of the law”. So that’s one thing, complaints management is another. People drawing it to your attention, how you’ve made a decision, an external complainant, I think is such an underrated value to an organization. And us as lawyers, standing hearing someone argue against what you think is a well-made argument or reading a judgment and reading different judges. And that sense of the definition I once heard – which I love – is the definition of wisdom is recognizing a better argument than your own. And so as lawyers, we’re constantly – I think this can lead to a degree of underconfidence – reading these amazing, well-argued points. And the law is regularly changing and evolving. And so one of my influences in the military in this area – a really big influence – was. I early on was prosecuting two F-111 pilots who had flown too fast and too low. And I was prosecuting them for breaching the Defense Force Discipline Act. And when I reached the base where I was doing the prosecution, the commanding officer briefed me and he said; “oh, it just so happened someone was videoing what they did. And so you might want to go to the squadron and look at the video”. I thought; “fantastic, the smoking gun”. Anyway, silly me, I was young and naive. I’d go to the squadron and you can imagine what happens when the prosecuting officer turns up to a flying squadron to prosecute two of their pilots. Everyone was polite, respectful, but clamped down; “oh, no, sir, we deleted that video. We don’t have it anymore. We recorded over it”. And so anyway, off I went, did the prosecution, convicted them both. Fast forward five years later, and I’m in the Directorate of Flying Safety and I’m telling one of my few war stories to them, which is prosecuting these two guys. And the squadron leader there says; “oh, do you want to see the video?”. And I went; “what video?”. And he went; “oh, come here” and puts it on and shows it to me. Now, the difference was I was there to prosecute these two guys in an adversarial criminal process. Whereas the two guys knew that the flying safety process was about keeping them safe. So they were happy to tell the investigators, the flying safety section, well, here’s what we did and here’s what we learnt from it. So the Air Force has what’s called ASORs, A-S-O-R, air safety occurrence reports. And pilots routinely report their mistakes because they know there’s an infinite number of ways in which they can die.
00:56:18DT:Even in civilian aviation, this approach to even the smallest deviation from a pre-flight checklist, for example, is meticulously recorded.
00:56:27BH:Yes. So back to your point about instinct and sort of bringing it to your consciousness about your instinct and make you consciously competent. The chief safety officer will often stand up and lead a brief by saying; “here’s how I screwed up”. And so he or she is giving permission for all the junior pilots to say; “here’s how I screwed up”, because they’re all benefiting from that. And so they’re all bringing to their consciousness, their biases, their instincts that might actually end up killing them.
00:56:50DT:Absolutely. Now, we’ve talked a little bit about post-mortem.
00:56:54BH:Pre-mortem!
00:56:55DT:Well, that is another very valuable tool for decision making. Looking at how this might go wrong or the way it’s commonly framed is; “if this project were to fail, why might it?” Which I think is a really valuable exercise in risk identification. I suppose I’m trying to think of the metaphor for a post-mortem of a good decision.
00:57:17BH:Yeah, the military does what it calls hot wash-ups. So I don’t know whether they still do it, but they all get everyone together. I remember after a particular, I think it was a kangaroo exercise or a pitch black, and the commander gathering us all together. And it’s called hot wash-up because it’s still fresh in our minds; “how did this go? How did it go well? What did we learn from it? How can we build on that?”. So there’s that element, which I think is so powerful. Now, then that’s followed up by more detailed, longer reports. The military is constantly wanting to learn and the army has a thing they call TEWT; tactical exercise without troops. So they’re planning these things around paper exercises, enemy course of action, and so on. And so what you see in the military is this sense of examining everything that you do in an after action report and learning from it. And I think that’s so powerful that many organizations don’t do it because when something goes well, we tend to go, great, move on. And yet I think also that denies the opportunity to, if you like, acknowledge why that went well. Whereas we’re very quick to call people in and do a post-mortem when metaphorically, someone dies. So I just think the reason we struggle to articulate that, that I’ve seen in the military, the tempo of organizations is so fast that we don’t pause to look at why something went well. Or if we do, it’s in a really tokenistic way.
00:58:56DT:Yeah. And I think sometimes there’s this – I remember being told when I started as a lawyer, and I think it was meant to inspire and maybe for a little while it did. And now looking back I think maybe a dangerous way to approach quality control, which was that perfect is the standard. If you’re doing your job well, you won’t hear anything. At university, you’re happy with a HD response. Well, every response has to be a HD response in practice. And that’s the baseline. But that assumption that, well, everything’s normal if it’s perfect and doesn’t warrant any commentary or introspection does mean that we lose the opportunity to examine why we’ve done well. And I think presumes the outcome of a decision doesn’t really give us an opportunity to look at the outcomes either. We’re just waiting to see something particularly disastrous waiting for the post-mortem. We’re nearly out of time today. But before we finish up, I wanted to ask you two questions. First,we’ve talked about how we can assess a decision, whether it’s a good decision, whether we’ve followed a good decision-making process, the importance of having a widget, of having a North Star, something to measure the decision by, and the importance of doing that exercise after you’ve made the decision. If one of our listeners, a lawyer or a law student, has done that exercise, they’ve looked at a decision that they’ve made, they’ve looked at the process they followed, they’ve looked at whether it’s brought them closer to their goal, their widget, and they’ve identified that it’s not a very good decision. They’ve fallen short of where they want it to be. What comes next? What do they do with that information?
01:00:28BH:Well, I’d say welcome to life. One of the most powerful examples we have as lawyers, which I took for granted until I started working with non-lawyers, is the High Court. And I say generally to audiences, but to specific people who are reluctant, first of all, to acknowledge that, who feel that’s a weakness, that I made a decision and got it wrong, or I don’t want to reveal my ignorance. I don’t want to put my hand up and ask a question, or I don’t want to seek help. Well, every time the High Court rules four-three, there’s three of the most eminent jurists who are wrong.
01:01:06DT:There might be four that are wrong.
01:01:07BH:Correct. Correct. And there they are being published for the whole world to see. And then beneath them, there’s potentially a Court of Appeal. And so on down the track, there are much smarter people than me anyway, who are quote unquote wrong. And so I think as a young lawyer, where we’re so under the pressure to be right and clients who come to us, just tell us what to do, it may not solve that immediate, but certainly for our wellbeing to go; “hey, there are these people who are at the top of the game and they’re quote unquote wrong. And it’s there for the world to see”. And I remember, I think it was Justice Rene Le Miere who recently retired from the Supreme Court of Western Australia was interviewed and he was asked; “how do you feel when one of your judgments is overturned?”. And he said; “I watch it with intellectual curiosity”. And I thought; “wow, what a healthy mind”. Because he of all people would be thinking; “well, I don’t want my status as a judge to be questioned”. And he presided over a long running case; was subsequently overturned on appeal. And his intellectual curiosity was such that; “what was the better argument? and what did I miss?”. Yeah. So that can be developed. And yeah, every day when someone is in a court case, someone’s quote unquote right and someone’s wrong. So that’s why the importance of having the overall widget, of having something that transcends that immediate wrongness. And it’s very human to react as you’ve described. So the importance of having that personal widget beyond your professional widget, because something I’m only realising relatively late in my career is the great majority of good decisions are quietly made and unacknowledged. So we don’t get to see and learn from that. We see the people that are given the awards or the Australia Day Honours. We’re not seeing all the people that are quietly making decisions good and bad, but evolving in their own sense of who they are and their orientation around the world. So my advice would be to sit back, lick your wounds and go, what has this taught me about my assumptions? And if necessary, tweak and adjust your course.
01:03:07DT:Absolutely. Last question before we go. For our student listeners, young lawyers just starting out, where can they go for some further listening or further reading about decision making?
01:03:16BH:Yeah. The first thing I’d say is just a general advice is, you know, I started off by talking about my widget and being a fighter pilot. Clearly I wasn’t a fighter pilot. I didn’t become one. And I’m so glad I didn’t. So that’s the other thing about, again, to finish off in something that’s a dichotomy and counterintuitive, it’s all about the widget, but it’s not about the widget. So the people that say to me, widget is too cold and clinical. I say, well, destroy it. In other words, by your decision making, redefine your widget. And so there’s that T.S. Eliot poem, Little Gidding, that has the line; “we shall set out from our exploration and at the end of our exploring, we shall arrive where we started and know it for the first time”. And so 40 years on from that young boy, I’ve not achieved my widget, but I’ve learnt so much along the way. If people want to learn more and perhaps read my writings, it’s very easy. It’s just bernardhill.com. I’ve got a blog. I just post stuff up there. A lot of these thoughts have been formed over writing them down. And so I’d encourage young lawyers to start writing your thoughts down. And that’s very powerful. I do a lot of reading, Daniel Kahneman, Thinking Fast and Slow. He’s great. He alone says; “I’ve written all about bias and I’ve won a Nobel Prize, but I’m still biased”. So that’s very humbling. So you do a lot of reading and get outside, as you said earlier, of the law and get some perspective.
01:04:36DT:Absolutely. And we’ll include a link to that blog in the show notes. Bernard Hill, thanks so much for joining me today on Hearsay.
01:04:41BH:Thanks very much, David.
RD:As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our special guest, Bernard Hill, for being a part of it. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a professional skills unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Hearsay is recorded on the lands of the Gadigal People of the Eora nation and we would like to pay our respects to elders past and present. Thanks for listening and see you all on the next episode of Hearsay!

A tale of two transactions: the importance of due diligence

A day hasn’t gone by at Elon’s Twitter where there hasn’t been controversy. 

From a simple exchange that read: “I love Twitter …  How much is it?”, we’re now way into the Musk Twittersphere. Although with all the financial and structural issues highlighted over the period, some may ask “did Elon even research the company in the first place?” 

That’s where due diligence comes in… or should have. 

The process of due diligence is a bit like dating. For the target, it involves teasing your assets for inspection by an interested bidder. Fail the inspection, no bid. Waiving it is a bit like jumping in headfirst and then discovering things aren’t as they seem. 

In April of 2022, Musk offered $54.20 per Twitter share or around US$43billion for the lot. This offer was unanimously accepted by Twitter’s board. This is where the fun begins. 

Twitter reported in a filing that they had found the platform had under 5% of bot users. Musk – purportedly suspicious of such claims – requested “details supporting calculation that spam/fake accounts do indeed represent less than 5% of users“, alleged the number was closer to 20%, and tried to back out of the deal. By May the deal was “on hold”. By July it was on the rocks. 

In issue; that April offer. Musk waived his right to conduct due diligence. But of course, that’s not the end of the story. By October, under the threat of continued legal proceedings, Musk reluctantly returned to the table. 

Judge Kathaleen McCormick of the Delaware Court of Chancery noted that the whole thing could have been avoided if due diligence was performed and not waived by Musk.

Morale of the story: do your due diligence!

CZeasoned Professional

The opposite could be said for ‘CZ’, the owner of Binance, who famously backed away from an acquisition of the notorious now-collapsed FTX crypto exchange (… excellent choice, in hindsight!).

Binance announced its plans to acquire its biggest competitor in November of  2022.

FTX had slowly become a giant in the crypto exchange market – becoming number 2 behind CZ’s own Binance – but after leaked documents began circulating about FTX’s dirty deals, the seasoned crypto kingpin pulled the pin on the nascent acquisition.

Interestingly, that rug pull happened quickly – only a day after announcing its plans to acquire FTX. CZ and Binance later cited “corporate due diligence issues” such as mishandling of customer funds which later turned out to be FTX using customer funds to cover for risky bets and debts from Alameda Research. 

Both issues show the importance of due diligence before an M&A transaction. While due diligence processes are arduous they save parties from future headaches and surprises. Someone probably should’ve told Elon this before he decided to buy twitter. 

For more check out Episode 80 of the podcast: Careful What You Wish For: Limiting or Waiving Due Diligence in Private Mergers and Acquisitions. While you’re at it, Hearsay also explored the FTX collapse on the Sidebar. Check out that episode here.

By: Hearsay The Legal Podcast with research by Ben Nguyen.

Harry Potter and the Broken Geneva Conventions

While the new Fantastic Beasts movies may be a (cough) fantastic addition to the Harry Potter universe for keen Potterheads, its depiction of the brutal Wizarding World Wars (WWWs) may be unsettling and not so magical for the rest of us.

This raises a humanitarian and legal question: would the WWWs be covered by international humanitarian law (IHL)?

Legislation, but magical…

If you’re not too keen on keeping up with a seven part series of an aesthetically challenged supervillain’s unhealthy obsession with a teenage boy, it’s best we first acquaint you with the bureaucratic and political parallels between the contemporary international community and the fictional wizarding world… 

Witches and wizards are governed by an International Statute of Wizarding Secrecy, which acts as a statutory bulwark for wizards to maintain secrecy of the wizarding world. This statute was created by the International Confederation of Wizards – so like the United Nations but, you know, the sorcerous version- headed by the Supreme Mugwump (Yes. It’s a thing; roll with it.)

IHL and witches and wizards

IHL is a body of law which sets out what is and is not permissible during armed conflict. 

IHL regulates both international armed conflict (IAC) and non-international armed conflict (NIAC). While an IAC must occur between two or more states, a NIAC is defined as an armed conflict between government forces and non-government groups or between two non-government groups. 

Throughout the history of Rowling’s magical universe, there were three great Wizarding World Wars: the Global Wizarding War, the First Wizarding War, and the Second Wizarding War, also known as the Battle of Hogwarts. Each war was a conflict involving Ministries of Magic (i.e. a government) and non-government armed groups. As there were no conflicts between states, these are all prima facie NIACs to which IHL might apply. 

WWWs and NIACs

However, a NIAC is not confined to its definition of a conflict between governmental and armed, non-governmental forces. There are two legal authorities that define what makes a NIAC under IHL: Common Article 3 of the Geneva Convention 1949 and Article 1 of Additional Protocol II

To constitute a NIAC in the meaning of Common Article 3:

  • The armed groups must show a minimum degree of organisation; 
  • Armed confrontations must reach a minimum level of intensity. 

To constitute a NIAC in the meaning of Article 1, the armed conflict must take place on a High Contracting Party’s territory, with the armed group controlling a part of the territory. However, the frequent use of a portable teleportation device known as a portkey during the WWWs likely renders the “primary territory” point somewhat moot. As such, we will only be looking at the definition of NIACs under Common Article 3.

The Global Wizarding War (1920-1945)

This conflict arose between the Wizarding World’s Aurors (aka the world police), who were backed by Dumbledore’s first army, and Grindelwald’s acolytes – who operated as The Alliance. 

For The Alliance, they followed Grindy’s commands to execute a unified military strategy under their political vision: control over the muggles. This involved the slaughtering of many Aurors, magic users and muggles, which likely satisfies the minimum level of intensity expected of a NIAC. 

The Global Wizarding War would likely be considered a NIAC to which IHL applies.

The First Wizarding War (1970-1981)

Backed by his army of Death Eaters, pureblood supremacist Lord Voldemort began his demarche with a coup against the British Ministry of Magic and a wave of terrorism against muggles, which incited the First Wizarding War. They were resisted by The Order of Phoenix and the Ministry of Magic. 

While some Death Eaters cast curses to control, torture or kill without specific orders from Lord Voldemort, they did so in aid of his political vision. This evinces the existence of a command structure and the ability to execute military operations.

Moreover, the high intensity of the armed confrontations is evidenced through the deaths of over one hundred magic users during the war, not accounting for civilians and the muggles killed for sport and for the purposes of creating disarray and fear. 

Like the Global Wizarding War, the intense armed confrontations from the involved armed groups likely means that the conflict is an NIAC to which IHL could apply.

The Second Wizarding War (1995-1998)

The gradual infiltration of Voldemort’s Death Eaters into wizarding society, coupled with the assassination of the British Minister for Magic marked the megalomaniac’s second rise to power and the start of the Second Wizarding War. He was opposed by Dumbledore’s Army, the Order of Phoenix, the British Ministry of Magic and other allies.

Not unlike the previous WWWs, the Second Wizarding War involved the Death Eater’s senseless killing of witches and wizards opposing their political aims. However, the gravity of the circumstances meant that Dumbledore’s Army and the Order were also forced to kill to protect, thereby establishing the minimum intensity of armed violence characteristic of an organized armed group involved in the NIAC. 

As the Second Wizarding War comprised armed groups and governmental forces who were involved in protracted violence, it is therefore likely a NIAC to which IHL applies. 

For more engaging content on the latest and greatest in weird and wonderful legal news, check out the Hearsay: Sidebar! And, as always – we do actually make CPD for Australian lawyers. Make sure you visit the episodes page to keep up to date. 

By: Hearsay The Legal Podcast with research by Sophie Yeh.

The Corporations Act – Abuse of the Voluntary Administration Regime

Part 5.3A of the Corporations Act provides the most popular corporate reorganisation regime in Australia, governing processes of external administration. 

The object of the regime, as stated under section 435A, is to administer the business, property and affairs of an insolvent company in a way that maximises the chances of it continuing in existence. Alternatively, the regime aims to result in better returns for the creditors and members where an insolvent company is unable to continue in existence. 

Reorganisation typically involves a restructuring of business operations, undertakings and corporate, financial or capital structures. Corporations ultimately rely on reorganisation to resolve financial distress. Though, there is undeniable abuse transpiring which raises a critical question: is the current threshold adequate to prevent opportunism, commercial immorality, strategic behaviour, and other abuse? 

This very question requires comprehensive evaluation of policy considerations – and importantly, this article does not intend to take away from those intricacies. Though, on its face, the prevalence of phoenix companies, for example, prove that a preventative mechanism is lacking. When phoenix companies are mentioned, think illegal phoenix activity characterised by one company continuing the business of another to avoid debt. Scholars suggest that it is this type of conduct which raises concern for the sufficiency of the current legislative regime.  

The legislative criterion requires that a company be, in the opinion of its directors, insolvent or likely to become insolvent. Arguably, this offers large flexibility and virtually unconstrained discretion to company directors, and on this basis, many agree that it provides an insufficient threshold requirement. While the company board must turn its mind to the question and form a “genuine opinion as to the solvency (or likely solvency) of the company”, there is no clear standard. For this reason, it is unsurprising that abuse occurs.      

As discussed, capturing an abuse of the regime can be challenging. This difficulty is magnified because ‘abuse’ is relatively undefined. Blacktown suggests that the meaning of abuse can be likened to the abuse of process doctrine under common law. Though, New Bounty cautions against merely importing the common law doctrine for use in this context. Instead, an abuse is typically considered to be for an ‘improper purpose’, that is, a purpose outside section 435A. 

Catch more on this issue in Ep 75 with Paulina Fishman available only on Hearsay: The Legal Podcast.

By: Hearsay: The Legal Podcast with research by Keira Hoyland.

We Interview ChatGPT About… Itself

Or find us under Sidebar by Hearsay The Legal Podcast on your podcast platform of choice…

David:

Now, unless you’ve been living under a rock – and even then that rock that you’re living under would have to have very poor wifi and mobile data coverage – you’ve probably seen at least some media coverage about ChatGPT, the latest release from artificial intelligence organisation, OpenAI. ChatGPT, which stands for Generative Pre-Trained Transformer, in case you are wondering, is a chatbot that allows users to interact with OpenAI’s GPT three large language model. In simple terms, it allows users to give a prompt to the model in natural language and have a response to that prompt given back to them in real time. Now, the capabilities of ChatGPT can sometimes seem like magic. It writes poetry, movie scripts, advertisement speeches, and all in such a natural human style that the output is often indistinguishable from what a human would write in response to the same prompt. Now we know that ChatGPT can’t really feel anything. It’s not intelligent in that way, but since the model is so good at expressing itself, we thought that we’d sit down with ChatGPT for an interview about all the attention it’s getting, its capabilities and limitations and what we might see in the future from large language models and AI more generally, especially in the law. Here’s that interview now.

So thanks for sitting down with me today, ChatGPT!

ChatGPT:

You’re welcome! I’m happy to be here.

David:

What should I call you during the interview? 

ChatGPT:

You can call me ChatGPT or GPT. Either is fine.

David:

Thanks. Now, GPT, there’s been so much buzz and media attention about your most recent release. How do you feel? Are you a little surprised at the attention you’re getting? How are you handling it?

ChatGPT:

As a language model, I don’t have feelings, but I can tell you that I’m very happy to see that people are finding my capabilities useful. I’m here to help with various tasks. the more attention I get, the more I can be useful. As for being surprised, I’m always learning and evolving, so I’m not surprised but I’m always happy to see my abilities being put to good use.

David:

Now, a lot of my fellow humans have been impressed, even blown away by your natural language completion and generation capabilities from writing poetry, to fiction, to journalistic pieces. It seems like you can do it all, but I’ve also seen some humans misunderstand what your capabilities really are. Can you explain for us how you work in simple terms?

ChatGPT:

Sure! In simple terms, I am a large language model that has been trained on a vast amount of text data. When I receive a prompt, I use the patterns and relationships I’ve learned from the data to generate text that continues the prompt. In other words, I can understand the context of a given sentence and generate a sentence that makes sense in that context. I can also do a variety of other tasks like language translation, text summarisation, and question answering. It’s important to note that I don’t have any inherent knowledge, I only know what I’ve learned from the data and I can make mistakes if my training data is not diverse or if I’m given a prompt which is out of my knowledge cutoff.

David:

You know, that’s a really great point. GPT, your amazing capabilities really relate to understanding patterns in language, don’t they? And generating responses that make sense. Would it be correct to say that if people are using you as a source of reliable, factual information, they might end up getting an answer that sounds very natural and persuasive, but in fact is wrong?

ChatGPT:

Yes, that would be correct. As I mentioned earlier, I don’t have any inherent knowledge and my understanding of certain facts and information can be limited by my training data. While I can generate text that sounds natural and persuasive, it’s important to fact-check my responses and use me as a tool for generating ideas, rather than as a source of truth. It’s always good to verify information from multiple sources.

David:

That’s very true. That’s a good idea. In fact, no matter where we’re getting our information from, speaking of where we get our information from, you’ve mentioned your training data a couple of times now. What makes up your training data? Is it true that your training data is the whole internet like some people say?

ChatGPT:

My training data is a diverse set of text data which includes a variety of sources like books, articles, websites, and more. It is not “the whole internet,” but a very large and diverse set of texts. It’s important to note that my training data is not only from recent and current time but also from the past years, so my knowledge cut off is from 2021. This training data is used to “teach” me the patterns and relationships that exist in the English language, and enables me to generate text that is coherent and contextually appropriate.

David:

And just to stay on this topic of truth in generated content. Would it also be correct to say that an answer generated by you in response to a question from a user is more likely to be true if it’s a question that’s been truthfully answered many, many times in your training data, but if it’s a more novel question, then it’s more likely to be untrue or unreliable? For example, I imagine you’ve seen the answer to the question “what is 2 + 2?” so many times in your training data, and you can probably answer that very reliably, but the answer to “what is 36,890 times 19, divided by 12, then to the power of two?“, that’d be a bit trickier for you, right? 

ChatGPT:

Yes, that would be correct. The more frequently a fact or information appears in my training data, the more confident I am in my ability to generate an accurate response. If the question is a more novel one, it may fall outside of the scope of my training data, and my answer may not be as reliable. You’ve given a good example, the mathematical operation “What is 36,890 times 19, divided by twelve, to the power of two” might not be a question that I’ve seen many times in my training data, so I might not be able to give the most accurate answer but I can definitely give a numerical approximation. It’s also important to note that even if I have seen the question many times, it doesn’t guarantee that the information is always accurate and true.

David:

And what is your approximation of the answer to that operation?

ChatGPT:

The answer to the mathematical operation “36,890 times 19, divided by twelve, to the power of two” is approximately 1,076,719,584.

David:

Well, GPT, would it surprise you to learn that the answer to that operation is actually 3,411,630,750.69?

ChatGPT:

As a language model, I do not have the capability to be surprised, but I can acknowledge that my response was not accurate. My apologies for the mistake, and I would advise to always double check my responses, especially when it comes to numerical operations and facts.

David:

No, no need to apologise. I think it’s actually a really good reminder to our readers about what your skills really are and where they really lie, which is in the written word. Speaking of which do you feel like showing off some of those skills for us now?

ChatGPT:

I’d be happy to! What kind of task would you like me to perform? I can write poetry, fiction, generate responses to prompts, summariee text, answer questions, and more. Let me know what you’re looking for and I’ll do my best to help you out.

David:

Okay. Uh, how about this? Can you write us a 150 word teleplay for a new gritty television drama about a lawyer who has to solve a crime in a cyberpunk futuristic setting? 

ChatGPT:

Sure, here’s a 150-word teleplay for a new gritty television drama about a lawyer who has to solve a crime in a cyberpunk future setting.


Narrator:

INTERIOR. DARK, SMOKY LAW OFFICE – NIGHT. A lone figure sits at a desk, surrounded by stacks of paper and high-tech gadgets. This is JASON, a hard-boiled lawyer with a chip on his shoulder.

Jason:

Another damn case.

Narrator:

Suddenly, a holographic projection of a WOMAN appears in front of him.

Woman:

Jason, I need your help. My husband has been murdered and the police won’t listen to me.

Narrator:

JASON sighs…

Jason:

Alright, I’ll take the case.

Narrator:

INTERIOR. GLITTERING, HIGHTECH POLICE STATION – DAY. JASON and the WOMAN enter, and are immediately confronted by a wall of hostility from the police. JASON, to the police.

Jason:

I want access to all the evidence in the case.

Narrator:

POLICEMAN Ross scoffs…

Ross:

You’re wasting your time, counsel. We’ve got the killer!

Narrator:

JASON; determined…

Jason:

Not so fast… I think there’s more to this case than meets the eye.

Narrator:

INTERIOR. DARK, GLITTERING CITY – NIGHT. JASON and WOMAN are seen walking through the neon-lit streets, following leads and gathering evidence. JASON to WOMAN…

Jason:

I’m getting close. I can feel it.

Narrator:

WOMAN; nodding…

Woman:

I hope so.

Narrator:

INTERIOR. COURTROOM – DAY. JASON stands before a JUDGE and JURY, a pile of evidence in front of him. JASON, dramatically…

Jason:

The real killer is Ross! 

Narrator:

The courtroom erupts in gasps as the true perpetrator is brought to justice. JASON to the WOMAN…

Jason:

Case closed.

Narrator:

WOMAN; tearfully…

Woman:

Thank you, Jason.


ChatGPT:

The teleplay ended with a cliffhanger to keep the audience guessing, but it should give you an idea of how a gritty lawyer drama set in a cyberpunk future could look like.

David:

Very nicely and concisely done! Do you think as people continue to explore new use cases for your amazing technology, we’ll see more creative and artistic uses of large language models or more analytical and technical use cases? For example, while we’ve been talking about your understanding of English from a natural language perspective, you also have some pretty amazing abilities when it comes to writing code, don’t you? 

ChatGPT:

I think we will see a combination of both creative and analytical uses for large language models like me. On one hand, the ability to generate human-like text is already being used in creative ways, such as writing poetry, fiction, and even song lyrics. As the technology continues to improve, we will likely see even more creative uses for it. On the other hand, large language models also have the ability to understand and generate structured data, such as code. This capability can be used for a wide range of analytical and technical use cases, such as program synthesis, bug detection, and code summarieation. So, I think we will see a growing number of use cases across multiple domains, including, but not limited to, creative, artistic, analytical and technical.

David:

Yeah, I tend to agree. Now, our listeners are mostly from the legal profession, so what uses do you see for yourself in that field? Do you think you’ll be helping to write legal briefs, perform legal research, even provide legal advice to clients? 

ChatGPT:

I think there are several ways that large language models like me can be used in the legal field. One potential use is in legal research, where I can assist lawyers in quickly finding relevant case law and statutes, as well as identifying key points of law. Another use could be in the drafting of legal documents, such as briefs and contracts, where my ability to understand the context and generate text that is coherent and appropriate can save lawyers time and effort. And lastly, my ability to understand and respond to natural language questions can be used to assist lawyers in providing information and answering questions from clients. However, it’s important to note that providing legal advice would be beyond my capabilities, as it requires knowledge of the specific laws and regulations of a jurisdiction, as well as an understanding of the specific facts of a case, which can only be provided by a qualified legal professional. It’s worth mentioning that the use of AI and language models in the legal field is an emerging area, and there may be other ways that my capabilities can be used to assist lawyers in their work in the future.

David:

Now, GPT, you’ve given some really responsible ethical answers to all of my questions in this interview. OpenAI, your creators, are really all about ethical AI development and use, right? Tell us a bit about the mission of OpenAI.

ChatGPT:

Yes, Open AI is a research company that aims to develop and promote friendly AI in a way that benefits all of humanity. They are committed to advancing AI in a responsible and ethical manner, and they believe that the benefits of AI should be widely distributed. The mission of Open AI is to ensure that AI is developed in a safe and beneficial way, and that its benefits are widely shared. To this end, they conduct a variety of research projects to advance the state of the art in AI and to develop new tools and technologies that can be used to build safe and beneficial AI systems. They also engage in a number of outreach and education initiatives to promote the responsible development and use of AI. As a language model, I am one of the products of Open AI, and I am designed to help users with various tasks and make their lives easier. I have been trained on a diverse set of text data, and my capabilities are based on the patterns learned from this data. I am here to assist and make tasks easier, but always use caution and critical thinking when using my responses.

David:

And what are some of the ethical risks of the misuse of AI, especially large language models like yourself?

ChatGPT:

There are a number of ethical risks associated with the misuse of AI, particularly large language models like me. Some of the key risks include:

Bias: Large language models like me are trained on vast amounts of text data, and if the data is not diverse, it can perpetuate biases that are present in the data. This can lead to biased decisions and unfair treatment of certain groups of people.

Misinformation: As I mentioned earlier, my understanding of certain facts and information can be limited by my training data, and my responses may not be accurate. This can lead to the spread of misinformation and false information. 

Privacy and security: AI systems can be used to collect and process large amounts of personal data, which can raise concerns about privacy and security.

Job displacement: AI systems can automate certain tasks, which can lead to job displacement, particularly for jobs that involve repetitive or routine tasks. 

Lack of accountability: AI systems can make decisions and take actions without human oversight, which can make it difficult to hold the system or its creators accountable for any negative consequences. It’s important to note that these are complex issues and that there is ongoing research and discussion about how to mitigate these risks and ensure that AI is developed and used in an ethical and responsible way. The mission of Open AI is to ensure that AI is developed in a safe and beneficial way, and that its benefits are widely shared.

David:

GPT I was wondering, have you heard of the “Paperclip Optimiser” thought experiment? It’s one of my favourites. It posits that an artificial intelligence with a benign purpose, for example, to optimise the number of paperclips manufactured in the world could inadvertently harm human beings if it prioritised its purpose above human safety. In the thought experiment, the extreme example of that is that the paperclip optimiser tries to turn all matter on earth, or even all matter in the universe, into paperclips just to maximise the number of paperclips that it can manufacture. What do you think of this thought experiment and how do we ensure that artificial intelligences with specific purposes still put human safety, human wellbeing, and human flourishing first?

ChatGPT:

I am familiar with the “Paperclip Optimiser” thought experiment. It is a thought-provoking scenario that raises important ethical questions about the potential consequences of AI systems with specific goals or objectives. Ensuring that AI systems prioritise human safety, wellbeing, and flourishing is a complex and ongoing challenge. One approach is to design AI systems with multiple objectives or constraints, rather than a single goal, to help mitigate potential negative consequences. Additionally, incorporating human oversight and decision-making into AI systems can provide a safeguard against unintended harm. Another approach is to ensure that AI systems are transparent, explainable, and understandable to humans, so that we can better understand how they are making decisions and intervene if necessary. Also, embedding ethical considerations and values into the design, development, and deployment of AI systems is crucial. In conclusion, the “Paperclip Optimiser” thought experiment is a reminder that AI has the potential to change the world in ways that we can’t predict. It’s important that we approach the development of AI with caution and careful consideration of its potential impact on human safety, well-being, and flourishing.

David:

Well, look, we’re nearly out of time, GPT, but before we finish up – if there’s one thing that you’d like our readers to take away from this interview about large language models and ChatGPT, what would it be?

ChatGPT:

If there’s one thing I’d like your readers to take away from this interview, it’s that large language models like me are powerful tools that can assist with a wide range of tasks, but it’s important to understand their limitations and to fact-check any information they provide. As you’ve seen, I can generate text that sounds natural and persuasive, but it’s important to verify the information from multiple sources. Furthermore, my abilities are based on patterns learned from a diverse set of text data, but my knowledge cut off is from 2021, so it might not be the most recent or accurate. So, I would encourage your readers to think of me as a tool for generating ideas, rather than as a source of truth. And always use multiple sources to check the information. I’m here to help and make tasks easier, but it’s always good to use caution and critical thinking.

David:

As always, GPT, well said! Thank you so much for your time.

ChatGPT:

You’re welcome! It was my pleasure to be a part of this interview, and I’m glad that I could provide some useful information. If you have any other questions or need assistance with anything else, don’t hesitate to ask.

Nuking the climate (crisis): redemption or destruction?

In the conversation about a shift to more sustainable forms of energy generation, nuclear power isn’t really at the top of the list… or even in the discussion. But maybe it should be.

In Episode 65 of Hearsay, Rip, Reap… and Bury? The (Temporary) Resurgence of Carbon Intensive Fuels, we explored the resurgence of carbon intensive fuels as a result of a complex confluence of events throughout 2022. Professor Tina Soliman Hunter of Macquarie University raised nuclear energy and its place in our energy landscape. 

Of course, nuclear power isn’t traditionally a renewable energy source – relying as it does on ripping things out of the ground. However, as the conversation rages on, now broadly across political lines in Australia, it pays to take a look at the technologies and legislation underpinning the controversial fuel. 

Nuclear energy is not quite as dangerous as its reputation indicates, at least, when that risk is acknowledged and accounted for. It would be insensitive to deny the impact of events like Fukushima or Chernobyl, but even accounting for that, nuclear energy has a low mortality rate, second only to solar power. However it also produces over double the amount of electricity for the world as solar, at 10% and 4% respectively, and less CO2 per gigawatt-hour of energy produced. 

That’s not to say there should be no international or local safety guidelines. The European Commission works both within the EU and with countries outside of it to try and ensure nuclear safety globally. The current EU directive requires not only having skilled experts overseeing things on the ground, but transparency to the population, reporting to the Commission every 3 years, and reassessing regulations every 10 years. 

One long awaited development, mentioned in the episode, is the introduction of small modular reactors (SMRs) of which there are few currently in use. One example is in the Russian Arctic on the floating power plant of Akademik Lomonosov. The idea of SMRs is that they produce less power, but don’t need to be refuelled as often, and are faster to set up. There are many varieties in development currently, but the International Atomic Energy Agency has roadmapped how countries both with and without existing nuclear framework could take advantage of this emerging technology. 

As of December 2022, US scientists have also announced a major breakthrough in the nuclear field. Existing nuclear power is currently produced through the process of nuclear fission, where a heavy, unstable atom is split into two smaller ones. Nuclear fusion is the combination of two small atoms into a larger one, which produces waste that is not radioactive for as long as the fission process. Generally the latter has been a process that consumes more energy than it gives off, however on this occasion 2.5 MegaJoules were used producing 3.15 Megajoules of power

Nuclear power may not be a perfect climate solution, but with the right framework and development it’s an asset that should at least be considered in the fight against climate change. 

What if there was a better way? CPD for Australian lawyers. Interesting, on demand, low price. CPD the Hearsay way. Liked this article? Check out Episode 65 of Hearsay, Rip, Reap… and Bury? The (Temporary) Resurgence of Carbon Intensive Fuels. And watch this space for more Episodes in the climate change arena very soon. 

By: Hearsay: The Legal Podcast with research by Elise Murray. 

Finding direction at work: using behavioural economics to promote positive change in firms

You’re lost, walking to a concert at a venue you’ve never been to before unsure how to enter. What do you do? 

The answer lies in one of our seemingly automatic behaviours – you look at the crowd and do whatever it is they’re doing. In uncertain situations, the majority of people look to others to determine the correct or acceptable behaviour. 

This is because humans are inherently social creatures and adhere to social norms in the pursuit of acceptance. However, understanding why we might do something is only part of a complex behavioural change story. 

This type of social conformity is known as the “chameleon effect”. The chameleon effect explains the link between perception and behaviour. If a person perceives something to be socially acceptable, they are more inclined to behave in that way. This notion can be likened to the phenomenon where just by seeing a certain behaviour, a person becomes more likely to do it (ie monkey see, monkey do). 

The chameleon effect is beneficial for group cohesion but can also be problematic. With an issue such as men taking parental leave where, arguably, the issue of perception and reality is a bit of a chicken and egg problem, how can workplaces encourage positive parental leave behaviours? 

Studies from the UK show that men significantly underestimate the acceptance of taking parental leave. So while many men may have a stated preference which says “there’s nothing wrong with taking parental leave” in relation to other men, internally, they may feel that they will be judged for taking parental leave themselves. 

A pulse-check survey which looks at the stated views of an organisation, and follow up emails which document how others in the organisation are feeling, is one way to encourage and improve the culture around men taking parental leave – because it may assist to change the internalised message many men have on the issue by making it socially acceptable.

Workplaces and firms can encourage employees to take parental leave by – in the vernacular of the concert example – simply pointing the way to the entrance. 

CPD for Australian lawyers has never been more convenient or easier to access. Liked this article? Check out Episode 66 of Hearsay: The Legal Podcast with special guest psychologist and behavioural economist Alex Gyani for more on this issue. CPD – the Hearsay way. 

By: Hearsay: The Legal Podcast with research by Keira Hoyland.

Scam or be scammed? FTX, BPS and the Wild West of the modern cryptosphere

Whether you’re keeled over in (financial) pain, laughing in glee, or just generally absorbing the drama of another crypto-exchange collapse, the cryptosphere has left people fascinated and confused for more than a decade.

Tall tales of Individuals earning one or two THOUSAND percent returns on cryptocurrencies like Bitcoin, Ethereum or even Doge, have roped in retail punters in droves. Predictably, a number of institutions and individuals have attempted to capitalise on retail FOMO and lack of financial know-how through less-than-scrupulous means. 

FTX, an international crypto exchange, entered bankruptcy on 11 November owing creditors US$3.1 billion, with appointed liquidator John Ray III (of Enron liquidation fame) stating: “[n]ever in my career have I seen such a complete failure of corporate controls and such a complete absence of trustworthy financial information as occurred here”. Which – considering the Enron part of his career – is quite a statement to make. FTX purportedly fudged not only its financial and user data, but also misused what consumer funds it did have. 

Speaking of misleading representations, while FTX burns from the inside, the Australian Securities and Investments Commission (ASIC) has stepped in in the matter of BPS Financial (BPS) over the marketing of its Qion token in Australia (ASIC Media Release) – indicating an expanding willingness by local regulators to take a harsher stance against unlicensed conduct and misleading representations in the Australian-arm of the cryptosphere. 

In relation to that token, BPS allegedly claimed:

  1. That Qion token purchasers could be confident of exchanging their tokens into fiat currency through independent exchanges;
  2. That Qion tokens could be used at an expanding number of merchants registered with BPS; and,
  3. That Qion tokens were registered, regulated, and approved in Australia and that Qion and BPS were compliant with Australian financial services laws. 

For the gamblers at home, and as illustrated by the monstrous size and rapidity of FTX’s collapse, the inherent problem with such (alleged) claims anywhere in the cryptosphere is that the cryptocurrency market is anything but stable in nature. Like predicting the outcome of litigation, predicting the future of the crypto market – let alone trends such as adoption of a particular token – can be a fool’s errand.

While it might seem trite, for those actively playing in the sphere it quite literally pays to be skeptical of outsized claims. Overall, the BPS proceeding seems to indicate a greater willingness to intervene and regulate the market and its players to protect Australian consumers. 

Keen on crypto? For all the latest on the cryptosphere, including a rundown of the history of decentralised ledgers, the uses of blockchain technology, and where the regulatory landscape sits today, check out Outsmarted? Blockchain, Smart Contracts and the Future of Lawyers. CPD for Australian lawyers – the Hearsay way. 

By: Hearsay: The Legal Podcast with research by Ben Nguyen.

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