The Bulletin - Law Society of South Australia - April 2020 by lawsocietysa

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 3 – APRIL 2020

IN THIS ISSUE

Regulation of space activities Space tourism Resolving spacecraft disputes

COVID-19:

New Public Health Laws Justice system measures Employment issues

SPACE LAW: PART II

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (3) LSB(SA). ISSN 1038-6777

CONTENTS SPACE LAW: PART 2

FEATURES & NEWS

Legal regulation of military activities in space – By Professor Dale Stephens

Launching in Australia – The Space (Launches and Returns Act) By Joel Lisk

Tailoring arbitral rules to space industry disputes – By Mark Giddings

Regulating space debris By Claudia Floreani & Rachael Neef

Space opportunities are boundless By The Hon Vickie Chapman MP

Space law in a changing technological paradigm – By Professor Steven Freeland

Space tourism: What it is & how will it be regulated? – By Dr Stacey Henderson

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Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:

T White R Sandford J Stewart-Rattray E Shaw F Bell A Nikolovski S Hooper V Gilliland

Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich T Vozzo F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members M Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof R Sarre, Prof M de Zwart, Prof T Leiman

REGULAR COLUMNS

Law Society Member Satisfaction Survey: The results The politics of pandemics By Dr Anna Finizio Justice system responds to COVID-19 crisis Practical guidance for companies during the COVID-19 pandemic By Chris Hartigan, David Ey, Erin McCarthy, Tim Capelin & Tim Lange Filing & service in the new SA Uniform Civil Court Rules – By Eva Wodecki We need to look beyond the law to address domestic violence By Michael Esposito Mann v Paterson Constructions Pty Ltd: The end of the rescission fallacy By Travis Shueard & Seamus Brand The execution of Charles Patrick Joseph O’Leary – By Dr Auke ‘JJ’ Steensma

KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Geoff Thomas gthomas@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

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From the Editor President’s Message From the Conduct Commissioner: Schedule 3 – Is compliance optional? By Greg May Risk Watch: New Regime for PreAction Steps – By Grant Feary Dialogue: A round-up of recent Society meetings & conferences By Rosemary Pridmore Shake it off – is confetti the answer to the modern lawyer’s problems? By Sarah El Sayed Bookshelf Tax Files: Taxing issues in succession planning – By Briony Hutchens Family Law Case Notes By Rob Glade-Wright Gazing in the Gazette

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington T Shueard D Sheldon J Arena G Mottillo B Armstrong D Misell R Scarabotti The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen Level 3, 47 South Terrace, Adelaide SA 5000. Ph: (08) 8233 9433 Fax: (08) 8212 6484 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038. Ph: (08) 8376 1188

FROM THE EDITOR

Support for local industry vital in wake of pandemic

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

t’s fair to say the world has irrevocably changed since I last wrote this column. We are currently in the grip of a COVID-19 pandemic, causing panic, confusion, distress and a large number of tragic deaths. There are of course, huge ramifications for the justice system. Federal and State Courts and Tribunals have significantly altered their procedures and practices to mitigate the risk of the virus spreading. Unavoidably, this has caused anxiety among clients and lawyers as courts try to deal with a rapidly evolving scenario. Running a court is a complex logistical undertaking as it is, but the added challenge of the coronavirus will inevitably lead to greater delays, and the profession must do its best to adapt and get through this situation the best it can. The Society has been regularly updating the profession with information about the justice system’s response to COVID-19 and has been in constant contact with the courts with regards to questions and concerns raised by Members about how to navigate this unprecedented situation. This edition features a summary of how our State and Federal courts are dealing with the situation, as well as an explanation of the Government’s powers under the Pubic Health Act and emergency declaration powers to deal with this outbreak. I encourage you all to regularly check your emails for updates from the Society, and also visit the Society’s COVID-19 resources hub, which can be accessed via the Society’s homepage. The webpage is an online “one stop shop” for all of the

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Society’s communications with regards to COVID-19 and other important information about the pandemic. It almost seems frivolous to talk about anything other than this pandemic at the moment, but the truth is that life does go on, as eerily different as it is. People are still battling all types of illnesses, parents still have to look after their children, humans still need social contact and companionship (even if it’s mostly virtual), and people still need legal assistance for all sorts of matters. Many businesses have also taken a massive hit, but are looking for ways to ride this crisis out and get back to a place of “business as usual”. In these challenging times, the space industry will play an even more important role in improving the health of South Australia’s economy. With the disruption that COVID-19 has and will continue to cause it’s vital than that SA continues to embrace innovation and emerging industries to grow jobs and boost our economy. Prime Minister Scott Morrison has predicted that 20,000 jobs will be created in the space industry by 2030, as billions will be injected into the economy. I hope that, while you’re practising sensible social distancing measures and looking for something to do while in selfisolation, you enjoy Part 2 of the Bulletin’s Space Law edition, which continues discussions raised in the previous edition with regards to the the militarisation of space, regulation of space-based activities, contracts relating to space technologies, and also explores issues such as space tourism, and mitigating the risks of space debris. Stay safe everyone. B

SPACE FORCE Regulating military space activities

MEMBER SATISFACTION SURVEY Society satisfaction levels on the rise

NEW CIVIL RULES New document filing & service procedures

PRESIDENT’S MESSAGE

With resilience and professionalism, we’ll get through this TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

write this President’s message in the midst of a global health crisis that is creating huge challenges for all of us. First and foremost, I hope you, your family and colleagues are safe and well. In terms of a pandemic COVID-19 is going to have an impact on the world like we have not experienced in decades. Possibly nothing naturally occurring has been this devastating to the human race since the Spanish Flu, in the early 20th century, or HIV/AIDS since the mid 1980s. From a business perspective, with the implications of the COVID-19 pandemic expanding every day, I am sure most of you in private practice have experienced a decline in the demand for your services. As with most of individuals this will continue to impact on our livelihoods. But lawyers are a resilient bunch, and as we are quickly discovering, becoming more innovative everyday as we adapt our methodologies to continue delivering high quality service in spite of the new restrictions placed on us. Why did it take these events to force us to utilise the vast array of technology options that are available to us? It’s likely that many of the new structures that practices have put in place will continue far beyond this pandemic. I’m sure a number of you will have experienced some teething problems setting up remote communicating technologies, but I am confident that we

will all see the benefits they offer in the longer term. Many of these technologies offer improved efficiencies and provide the community with greater access to justice. With everyone trying to work out how to deal with these unprecedented challenges, it’s important that we look out for each other over the coming months and maintain a strong commitment to upholding the rule of law. We have ethical obligations to act in accordance with the principles of justice and it is vital, now more than ever, that we preserve the public’s faith in the justice system. We should avoid the temptation of giving a “media headline grab” if it is counterproductive to the cause and instead work together to identify a solution to any delay or hurdle we come across. Support and guidance is available from the Society, and practitioners can access all the latest information and support resources relating to the pandemic on the Society’s COVID-19 Resources webpage, which can be accessed via the Society’s homepage. I commend the remarkable health care workers who have been on the frontline, dealing with sufferers of the virus and also proving advice on how to stop the spread. The medical and legal systems often intersect, and ironically at the Medico-Legal Advisory Group meeting in February, the legal and medical

practitioners present discussed the importance of the two professions working together to achieve the best outcome for the patient/client. Good communication between the doctors and lawyers involved in a matter leads to a more focussed approach and quicker resolution for the claimant. Listening to Members’ needs the focus of Executive Retreat Despite occurring on 21 February, it seems like a lifetime ago that members of the Society’s Executive spent a planning day discussing some of the big picture issues affecting the profession and how to most effectively serve its members. While some of the more pressing challenges for the profession have clearly changed since that discussion, the longterm challenges and opportunities for the profession remain, and the focus of the Executive Retreat on being responsive to the needs and expectations of the Society’s Members and adapting to future trends and challenges is as pertinent as ever. Members of the Executive looked at a number of proposed projects aimed at providing practical support to practitioners, improving the reputation of the profession, and providing additional value to Members of the Society. Stay safe, stay healthy, and please contact either me personally or the Society if you need any guidance, support, or just want to chat. B April 2020 THE BULLETIN

SPACE LAW

Legal Regulation of Military Activities in Space PROFESSOR DALE STEPHENS, ADELAIDE LAW SCHOOL

uter Space is an active arena of contemporary military operations and it has been that way since the beginning of human activity in outer space. Military activities across the globe rely heavily upon space services to provide numerous operational outcomes, including satellite communications, intelligence, surveillance and reconnaissance (ISR), position navigation and timing (PNT), environmental monitoring, space situational awareness as well as providing meteorology data. The space law regime, under which these military activities occur, is principally contained in five key treaties.1 Notably, Australia has signed and ratified all five treaties, which is not the case for the vast majority of States. Despite the wide range of military activities in space and despite the ostensible scope of the five principal treaties applicable to outer space, there is very little direct regulation of military activities in outer space via the space law treaty regime. However, other more general treaties as well as relevant customary international law do also apply to military activities in space. It is now abundantly clear that military activity itself in outer space is not prohibited by international law. Despite the references to space uses and exploration being dedicated to ‘peaceful purposes’ which are contained in the Preamble and Article IV of the 1967 Outer Space Treaty, this has been understood as meaning a prohibition on ‘aggressive’ military activity, not military activity generally.2 Moreover, Article III of the Outer Space Treaty expressly applies the United Nations (UN) Charter along with all international law to outer space. Accordingly, military operations in outer space are to conform with the UN Charter obligations regarding the maintenance of peace and security. In particular, such activities are not to constitute aggression.3 In addition, Article 3(2) of the 1979 Moon Agreement specifically restates the UN Charter Article 2(4) prohibitions on the use or threat of force, plus additionally prohibits “any other hostile act or threat

6 THE BULLETIN April 2020

of hostile act on the Moon” or any other celestial body.4 There are some specific military activities identified in outer space that are prohibited and these are outlined in Article IV of the 1967 Outer Space Treaty. The primary (but not exclusive) focus here is military activity on the Moon and other celestial bodies. Hence, Article IV generally provides that “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes” and proceeds to identify three specific military prohibitions on the Moon and other celestial bodies, namely: a. The establishment of military bases, installations and fortifications; b. The testing of any type of weapons; and c. The conduct of military manoeuvres. Article IV then provides that military personnel undertaking scientific research or “for any other peaceful purpose shall not be prohibited” (emphasis made). Similarly, Article IV makes clear that the use of “any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. However, unlike similar terminology used in the 1959 Antarctic Treaty that prohibits all military activity in that region, including “any measures of a military nature”,5 neither Article IV of the 1967 Outer Space Treaty nor Article 3 of the 1979 Moon Agreement uses such general language. Hence, outside of the specific prohibitions enumerated, these provisions do permit the conduct of some military activity on the Moon and other celestial bodies. Accordingly, there is no explicit prohibition of military personnel occupying or using facilities, provided that such facilities are not ‘established’ as a military base, installation and/or fortification. While testing of any type of weapons is prohibited, the mere carriage of such weapons is not. Similarly, military activities that do not constitute ‘manoeuvres’ are not prohibited. However military activities outside of the specific prohibitions contained in Article IV and Article 3 are still

subject to the ‘peaceful purposes’ obligation and must therefore be consistent with the UN Charter. Under Article IV of the 1967 Outer Space Treaty, States parties are also prohibited from: a. Placing in orbit around the Earth any objects carrying nuclear weapons or any other any kinds of weapons of mass destruction b. Installing such weapons on celestial bodies, or c. Stationing such weapons in outer space in any other manner. Nuclear weapons have been described by the International Court of Justice as “explosive devices whose energy results from the fusion or fission of the atom”.6 Weapons of mass destruction (WMD) are not specifically defined in any one treaty but have been understood to include chemical and biological weapons.7 In addition, weapons of mass destruction would include “any weapons developed in the future which have the characteristics comparable in destructive effect to those of the atomic bomb”.8 The prohibition on the placing ‘in orbit’ of nuclear weapons has been interpreted by the U.S. as being full orbit and hence not including Inter-Continental Ballistic Missiles (ICBM) whose trajectory, when used defensively, would be only in partial orbit.9 There has been no claim by any State that ICBMs and their partial trajectory through outer space would be contrary to the 1967 Outer Space Treaty. The prohibition contained within Article IV refers to the placement in orbit, installation on a celestial body and/or stationing in space of nuclear weapons and other WMD. It does not specifically provide a prohibition on the use of such weapons, at least in the controversial context of where the survival of the State was at stake.10 Notwithstanding this, the 1979 Moon Agreement does state in Article 3(3) that “States Parties shall not place in orbit around or other trajectory to or around the

SPACE LAW

An unarmed Minuteman III intercontinental ballistic missile launched from Vandenberg Air Force Base, California (U.S. Air Force photo/Airman 1st Class Yvonne Morales)

Moon objects carrying nuclear weapons or any kinds of weapons of mass destruction or place or use such weapons on or in the Moon”. Hence there is a direct prohibition on use of weapons of mass destruction visà-vis the Moon and other celestial bodies under the 1979 Moon Agreement. Neither Article IV of the 1967 Outer Space Treaty nor anything in the 1979 Moon Agreement prohibits the placement in orbit, installation, stationing or any other application of (non WMD) conventional weapons in outer space. Such weapons may include anti-satellite laser weapons or any other weapon system that can be employed consistently with international law.11 Article IV does not apply to prohibit nuclear powered sources of space objects, whether civilian or military. Such technology has been employed in the exploration of space for decades and will likely be necessary for humanity’s exploration of the furthest reaches of the solar system. Hence, the placement and use of nuclear power sources in space for exploration and use of outer space is not prohibited under international law.12 In conclusion, the Outer Space Treaty regime does contain some specific prohibitions on military activity, mostly in respect of particular weapons systems. However, outside of these prohibitions,

military activity in space is still subject to general international legal regulation of the same kind that exists on Earth. This not to say that there isn’t ambiguity as to how the law meshes and there are still many legal gaps which State practice and treaty law have not filled. In this regard, the University of Adelaide is leading a multi-national effort to clarify the law through the Woomera Manual project. The Woomera Manual on the International Law of Military Space Operations (OUP 2021) seeks to research and articulate the legal regimes that apply to the full spectrum of military space activities. These include those undertaken in peacetime, in circumstances short of armed conflict (Use of Force) as well as armed conflict (International Humanitarian Law). It is a project spearheaded by the Universities of Adelaide, Exeter (UK), Nebraska – Lincoln (US) and UNSW – Canberra. The drafting team of the Woomera Manual project also comprises academics from other Universities as well as Government lawyers (acting in their personal capacity), Non-Government Organization lawyers and technical experts. The name Woomera, as used in this context, comes from the testing range located in SA where Australia in the 1960’s took its first steps into the space age. B

Senior members of the Woomera Manual Project (from left): ): Hitoshi Nasu (University of Exeter), Jack Beard (University of Nebraska), Dale Stephens (Adelaide Law School), Melissa de Zwart (Adelaide Law School), Stacey Henderson (Adelaide Law School), Robin Holman (Canadian Forces), Duncan Blake (Adelaide Law School) and Rob McLaughlin (UNSW Canberra).

Endnotes 1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 (entered into force on 10 October 1967)(the ‘Outer Space Treaty’); Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968)(the ‘Rescue and Return Agreement’); Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972) (the ‘Liability Convention’); Convention on Registration of Objects Launched into Outer Space, 6 June 1975, 1023 UNTS 15 (entered into force 15 September 1976) (the Registration Convention’); Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (the ‘Moon Agreement’). 2 US Department of Defense Law of War Manual 2015 (updated December 2016) Office of Legal Counsel Dept. of Defense Manual (‘DoD Law of War Manual’) 944 and cites made at f/n 168. 3 United Nations General Assembly ‘Definition of Aggression Resolution’, G.A. Res. 3314 (XXIX), U.N. GAOR, 29th Sess., Supp. No, 31, A/ RES/29/3314 (Dec. 14, 1974). 4 Moon Agreement art 1(1). 5 The Antarctic Treaty, 402 UNTS 71, signed December 1, 1959, entered into force June 23, 1962. Article I provides: ‘Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons.’ 6 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ. Reports 1996, 226 at 243, para 35 (‘Nuclear Weapons Advisory Opinion’). 7 Commission for Conventional Armaments, UN document S/C.3/32/Rev.1, 18 August 1948, Para 1, p2. 8 Id. 9 DoD Law of War Manual, above n 2, 942, para 14.10.3.1 10 Nuclear Weapons Advisory Opinion, above n 6, para E, 266. 11 US DoD Law of War Manual, above n 2, 943, para 14.10.3.1 12 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res. 47/68, UN GAOR, 47th Sess., UN Doc. A/RES/47/68 (1992), see also United Nations Committee on the Peaceful Uses of Outer Space Scientific and Technical Subcommittee and the International Atomic Energy Agency, Safety Framework for Nuclear Power Source Applications in Outer Space, UN Doc. A/AC.105/934, 2009, p. 1.

April 2020 THE BULLETIN

SPACE LAW

Launching in Australia – The Space (Launches and Returns) Act JOEL LISK, LAWYER, COWELL CLARKE COMMERCIAL LAWYERS

he Space (Launches and Returns) Act 2018 rarely gets mentioned in the media, and has not been the subject of judicial consideration to date.1 However, the Space (Launches and Returns) Act is important for the fledgling Australian satellite launch industry, because it establishes a licensing and permissions regime that regulates Australians seeking to launch rockets and payloads into space, operate launch facilities and bring space objects back into Australia.

A HISTORY IN SPACE Australia has a rich history of spacerelated activities, ranging from our role as a ground services provider for numerous deep-space missions through to the use of our large open spaces (i.e the Woomera Range Complex) for the testing of space technologies. Australia also aims to be a good international citizen and has championed the development of international rules that govern the use of outer space to ensure continuing access for all of humankind. This has led Australia to be one of a select few nations – 152 – that have ratified all five international space law treaties. Domestic space legislation serves a number of purposes: it satisfies a nation’s obligations at international law to authorise and supervise private activities in outer space, implements certain safety requirements to protect public health and safety, apportions liability for accidents and damage, and generally prevents unqualified businesses or individuals from trying to reach outer space. Many States look to the international space law treaties as a basis for their domestic law applicable to private uses of outer space, something

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Australia did when it introduced the Space Activities Act 1998.

THE 1998 ACT The 1990s saw the Federal Government presented with three separate proposals for the establishment of commercial space launch facilities in Australia. This prompted the Howard Government to introduce the Space Activities Act 1998. When the Space Activities Act came into force, it placed Australia as the 6th nation to have legislation dedicated to private uses of outer space, behind the United States, United Kingdom, Sweden, South Africa and Russia. The Space Activities Act used a traditional prohibition and licensing model to regulate the activities of Australian nationals and those seeking to use Australia for certain space-related activities. The legislation created five licences and authorisations, each with a different focus based on the activity an operator sought to undertake: space licences, launch licences, overseas launch certificates, return authorisations and exemption certificates. The Space Activities Act provided for a series of application requirements, compulsory and discretionary authorisation conditions and a series of administrative matters. A notable requirement was that licence holders were generally required to hold $750 million of insurance to cover any potential damage that may occur as a result of a permitted activity – a requirement that was frequently described as excessive and unrealistic. The Space Activities Act also granted the Federal Courts near universal

jurisdiction over accidents involving regulated activities and included the power to introduce regulations. Despite much government enthusiasm and the implementation of an innovative legislative framework, an Australian space launch sector never eventuated.

REFORM After nearly 17 years in force and much technical innovation in the space sector, Christopher Pyne, Minister for Industry, Innovation and Science at the time, announced a review of the Space Activities Act with the aim of ensuring that legislative framework “keeps pace with international change and technological development without adding unnecessary impediments to private investments”.3 With public consultations taking place in early 2016, the Department of Industry, Innovation and Science (DIIS) released its Legislative Proposals paper in March, 2017. The Space Activities Amendment (Launches and Returns) Bill was introduced into the Federal Parliament in May 2018 and quietly passed both houses on 23 August, 2018 after review by the Senate Economics Legislation Committee. The amendments came into force on 31 August, 2019, officially transitioning the Space Activities Act to the Space (Launches and Returns) Act 2018 (Act).

THE NEW REGIME The changes to the Space Activities Act were neither dramatic nor groundbreaking, but were finer adjustments to key provisions in an attempt to modify the existing legislation sufficiently to suit the rapidly evolving needs of industry. In

SPACE LAW

the second reading speech that followed the amendments’ introduction to the House of Representatives, Minister Dan Tehan emphasised that the amendments were focused on “accommodat[ing] technological advancements” while not “unnecessarily inhibit[ing] innovation in Australia’s space capabilities”.4 In terms of changes, the first and most obvious is the change to the title of the Act. The new short title recognises that the Space Activities Act did not regulate all space activities, just the launch and return of objects conducted in Australia or by Australian nationals. The objects of the Act also changed to reflect the evolution in the international space industry; establishing a system for payment of ‘adequate compensation for damage’ has been removed and replaced with ensuring a ‘reasonable balance’ between removing barriers to innovation and entrepreneurship, and the safety of space activities. The licences and authorisations under the legislation are still delineated based on activity, with amendments to streamline and simplify the licences required by operators. These licences are: • Launch facility licence to authorise the construction and operation of launch facilities within Australia and its airspace; • Australian launch permits allow for the launch of rockets from Australia; • Overseas Launch Certificates cover activities by Australians using launch services overseas; • Return authorisations continue from the Space Activities Act and regulate the return of certain objects from space to Australia; and

• Authorisations certificates to provide for exemptions in the case of emergencies. In addition to these name changes, there were minor amendments to licence application thresholds and the ability to make rules rather than regulations (formerly Space Activities Regulations). A significant new inclusion is a dedicated licensing regime focused on the use of high powered rockets. The definition of these rockets remains highly technical, with a focus on the rocket’s engine power and intended altitude. The inclusion of high powered rockets is described as a measure to ensure that Australian legislation “recognises the evolving nature of space technologies and provides a regulatory framework for the safe launching and return of these rockets”.5 The incorporation of this new class of regulated activities is likely a response to the emerging ‘sub-orbital’ industry sector. Notably, the Act also amends the previous insurance requirement to reduce the maximum figure of $750 million to $100 million. Furthermore, the Space (Launches and Returns) (Insurance) Rules 2019 (Cth) further reduces the insurance requirements for overseas payload permits and specific classes of return authorisation to $0, representing a recognition of the low risks associated with many overseas launches, insurance and indemnity provisions in launch contracts and a reduction in regulatory burdens for smaller operators. Amendments to the overall penalties under the Act for individuals were also increased while maximum penalties for corporate entities remain at 100,000 penalty units for most breaches.

ONGOING OPERABILITY Australia’s actions in initiating reform are not isolated. Regulators in the United States are progressing through wholesale revisions to their legal regimes, the United Kingdom have recently implemented a new Space Industry Act 2018 (UK) in order to enable greater commercial spaceflight activities, and New Zealand implemented similar legislation in 2017 to enable private space activities. Although it is too early to determine if the Act will be successful at promoting commercial space activities in Australia, there already appears to be a greater appetite for compliance and working within the legal regime on the part of the industry. While the legislation may not address every want or need of operators, academics and legislators, it does remain a comprehensive legislative framework for the vast majority of activities that Australians will undertake in outer space today and in the near future. Joel Lisk is a University of Adelaide PHD candidate focusing on international and domestic commercial space-related regulation. B

Endnotes 1 The Space Activities Act 1998 (Cth) – the previous name of the Space (Launches and Returns) Act – was mentioned in XYZ v Commonwealth (2006) 227 CLR 532, 561, 563 and 609 in relation to the external affairs power and Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, 494 as an example of commonwealth civil penalties. 2 Armenia; Austria; Belgium, Chile, Kazakhstan, Kuwait, Lebanon, Mexico, Morocco, Netherlands, Pakistan and Peru, Turkey, and Uruguay 3 Minster for Industry, Innovation and Science (Cth), ‘Atmosphere is Right for a Review of Outer Space Activities (Media Release, 24 October 2015). 4 Commonwealth, Parliamentary Debates, House of Representatives, 30 May 2018, 8 (Dan Tehan). 5 Explanatory Memorandum, Space Activities Amendment (Launches and Returns) Bill 2018 (Cth) 11 [59].

April 2020 THE BULLETIN

SPACE LAW

Tailoring arbitral rules to space industry disputes MARK GIDDINGS, SENIOR ASSOCIATE AND SAM BEER, LAW CLERK, LIPMAN KARAS

he continued growth of the commercial space industry brings with it the increased likelihood of disputes. To date, one of the most successful forms of dispute resolution relating to space activity, particularly where disputes involve an international element, has been arbitration. Recent examples include the dispute between ABS Holdings and the KT Corporation concerning the sale of a geostationary satellite,1 and the dispute between Devas Multimedia and Antrix concerning the lease of space segment capacity in the S-band spectrum.2 Arbitral rules such as the UNCITRAL Arbitration Rules (UNCITRAL Rules) are specifically designed to facilitate the resolution of international disputes. For instance, they were the applicable rules in the Devas Multimedia arbitration. Of special interest, however, are the Optional Rules for Arbitration Relating to Outer Space Activities produced by the Permanent Court of Arbitration (PCA Rules).3 The PCA Rules are a modified form of the UNICTRAL Rules, tailored to address the unique aspects of space activity and needs of participants in the industry. While the PCA Rules have yet to be applied to any disputes, they contain a number of significant innovations.

STATE IMMUNITY FROM JURISDICTION Within the space industry, government controlled entities play a prominent role and there is a large and growing degree of joint activity between public entities and private companies.4 Where a public entity is a respondent to a claim, it is not uncommon for it to challenge jurisdiction on the basis of State immunity and related doctrines such as non-justiciability. This was the approach taken by Antrix, an entity entirely owned by the Indian government, in the arbitral claim brought by Devas Multimedia.5 Article 1(2) of the PCA Rules seeks to address this by stipulating that agreement to arbitrate under the PCA Rules constitutes a waiver

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of any right to immunity from jurisdiction. The waiver prevents a government entity from delaying and possibly ending arbitral proceedings at an early stage.6

TECHNICAL COMPLEXITY The PCA Rules recognise that issues may be technically or conceptually complex. Article 10(4) provides that the Permanent Court of Arbitration will make available a list of persons with subject matter expertise. Additionally, while the parties are free under both the PCA Rules and UNCITRAL Rules to determine the number of arbitrators, the PCA Rules specifically refer to the possibility of appointing three or five arbitrators,7 recognising that a larger arbitral panel of wide expertise may be necessary to address all the relevant issues. Procedures for dealing with expert evidence are also a focus of the PCA Rules. Article 27(4) allows the tribunal to require parties to provide a non-technical summary of scientific or technical evidence. This summary aids the tribunal in understanding the issues, including so that it can decide whether it needs to appoint an expert to explain the issues further.8 While the UNCITRAL Rules already allow for the parties to object to the qualifications, impartiality or independence of an expert, article 29(3) of the PCA Rules goes further in permitting a challenge to appointment after it has been made. Where the issues are complex, the role of the expert will be of importance and it is therefore unsurprising that the PCA Rules provide additional scope to making a challenge. Article 34(7) of PCA Rules provides for separate or dissenting opinions, allowing arbitrators with different backgrounds to resolve disputes in different ways. This could be advantageous where arbitrators have to grapple with novel issues or emerging areas of law. However, separate opinions may be undesirable for parties seeking to have

their disputes conclusively resolved if they encourage challenges to the arbitral award.

CONFIDENTIALITY While arbitration is an inherently private form of dispute resolution, confidentiality in the space industry may assume extra importance if the facts involve matters of State security or commercial sensitivity. The PCA Rules contain more detailed confidentiality provisions than the UNCITRAL Rules, including: • article 17(6) which allows parties to apply to have information treated as confidential; • article 17(7) which empowers the tribunal to decide on confidentiality and whether the absence of protection is likely to cause serious harm to the party; and • article 17(8) which provides for the appointment of an expert confidentiality advisor to report on confidential information without disclosing it to the opposing party or to the tribunal. These provisions ensure parties are not discouraged from submitting their case because it relates to strategic or sensitive topics.9 Further, the documents necessary for the fair and just resolution of the matter are more likely to be produced where the risk of wider disclosure is mitigated. In particular, the use of a confidentiality advisor is a novel innovation. Because the advisor is an expert, if the information is of a highly technical nature, he or she can assess and convey the relevant points to the arbitral panel.10

AVOIDING DELAY A theme of the PCA Rules is reducing delay and, by extension, unnecessary cost. This can be especially important in the space industry where activities such as launching, orbital insertion and re-entry are time critical and operate to precise schedules.11 Article 6(1) makes the Secretary-General of the PCA the

SPACE LAW

appointing authority. This differs from the UNCITRAL Rules which leaves it to the parties to agree on an appointing authority. This more prescriptive rule prevents delay from obstructive practices, and reduces the time needed to select a tribunal and resolve any challenges.12 The potential for delay is further reduced by article 12(4) which permits a three or five person tribunal to continue an arbitration despite one of the other tribunal members failing to participate. The PCA Rules also provide for the publication of indicative lists of people with relevant expertise as an arbitrator (article 10(4)) or expert (article 29(7)), making the process of identifying and appointing appropriately qualified persons more efficient.

CONCLUSION In an industry sector where arbitration has proven to be a successful form of dispute resolution, the PCA Rules contain

important developments which could be of great assistance to resolve space related disputes. Even if parties choose not to adopt the PCA Rules in their entirety, they may consider it desirable to adopt specific provisions where issues are likely to involve technical complexity, require enhanced confidentiality or call for expeditious resolution. Likewise, where a counter-party is a State owned entity the provisions of the PCA Rules provide a model for ensuring that potential claims are not stifled or delayed by jurisdictional objections. B Endnotes 1 ABS Holdings Ltd and ABS Global Ltd v KT Corporation and KTSAT Corporation (Partial Award ICC, Case 19958/AGF/RD/MK, 18 July 2017). 2 CC/Devas (Mauritius) Ltd, Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v The Republic of India (Award on Jurisdiction and Merits, Permanent Court of Arbitration, Case No 2013–09, 25 July 2016).

The PCA is an intergovernmental organisation based in The Hague that was established to facilitate arbitration and other forms of dispute resolution between States. 4 Jesse Baez, ‘The PCA’s Optional Rules for Arbitration of Disputes Relating to Outer Space Activities: Bringing Arbitration to Infinity and Beyond’ (2012) 4 Yearbook on Arbitration and Mediation 218 at 223 (‘Baez’). 5 CC/Devas (Mauritius) Ltd, Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v The Republic of India (Award on Jurisdiction and Merits, Permanent Court of Arbitration, Case No 2013–09, 25 July 2016) at [501]. 6 Baez at 223. 7 Introduction to the PCA Rules. 8 Caroline Arbaugh, ‘Gravitating Toward Sensible Resolutions: The PCA Optional Rules for the Arbitration of Disputes Relating to Outer Space Activity’ (2014) 42(3) The Georgia Journal of International and Comparative Law 825 at 840 (‘Arbaugh’). 9 Fabio Tronchetti, ‘The PCA Rules for dispute settlement in outer space: A significant step forward’ (2013) 29 Space Policy 181 at 185-186 (‘Tronchetti’). 10 Arbaugh at 841. 11 Tronchetti at 185. 12 Arbaugh at 842.

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April 2020 THE BULLETIN

SPACE LAW

REGULATING SPACE DEBRIS CLAUDIA FLOREANI AND RACHEL NEEF, ADELAIDE LAW SCHOOL

ith the release of the sci-fi movie Gravity in 2013, the potentially catastrophic effects of space debris were brought into the pop-culture scene. Currently it is estimated that there are 34,000 objects greater than 10cm, 900,000 objects between 1 and 10cms and an incredible 128 million objects between 1mm and 1cm in Earth’s orbit.1 Even small pieces of debris can do large-scale damage due to the high speeds at which they travel in space. Left unregulated, there is the potential for cascading collisions to occur, which will exponentially increase the amount of debris and chance of further collisions occurring.2 This is known as Kessler Syndrome and could render our space environment increasingly hazardous or even impossible to access. There have been some steps to reduce the creation of new debris, but active remediation of existing space debris will also be required. 3 There have been various proposals of lasers, tethered tugs and solar sails4 to remove space debris. The main legal questions that are being asked in regard to space debris include: who is responsible for damage caused by debris and who, if anyone, has the obligation to respond to and remove debris?

COLLISIONS IN OUTER SPACE THE LIABILITY CONVENTION The major legal framework that addresses issues of liability in space is the

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Liability Convention5, which expanded on Article VII of the Outer Space Treaty.6 Article IV of the Liability Convention states that: “In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.” 7 Two key elements need to be satisfied in order for a launching State to be liable for damage in outer space. Firstly, that the damage was caused by a space object and secondly that the launching State was at fault. Defining Space Object and Space Debris There is no uniform international definition of space object or space debris. The intuitive differences between a space object and space debris relate to size and functionality. Under the Liability Convention Article 1 (d) a space object “includes component parts of a space object as well as its launch vehicle and parts thereof.” Space debris generally refers to “all man-made objects, including fragments and elements thereof, in Earth

orbit or re-entering the atmosphere, that are non-functional”.8 As a space object includes component parts, it begs the question of at what point or size do component parts of space objects become debris and if this affects liability at all? Arguably there is no legal difference when it comes to liability whether something is classified as space object or space debris given that in both situations, man-made objects have been launched into space. Fault The second issue raised in Article IV of the Liability Convention is that of fault for damage caused by a space object. For fault to be proven the space object must be able to be tracked back to its launching states. This would be possible in cases of larger inactive space objects/debris that were (during their useful life) registered under the Registration Convention, but becomes much more difficult for smaller fragments of debris whose origin may be unknown and unknowable. In order to identify the launching State, debris fragments would need to be continuously tracked from the time the debris was created; however, currently the United States Space Surveillance Network only tracks objects greater than 5cm9 and as such no State can be held liable for any of the damage caused by fragments smaller than this. As we continue to increase the number of space launches, insurance costs

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and risk will continue to increase without a clear legal regime apportioning liability when collisions occur.

RESPONDING TO SPACE DEBRIS Another issue that arises is who is responsible to clean up space? States retain jurisdiction over the objects they place in space,10 meaning that if another State wishes to remove the debris, they have no legal right to do so, without express consent from the registered State.11 This is an issue for those wishing to perform active debris remediation and ‘clean up’ outer space. There is also a gap in the law as to what happens when a launching State can no longer be readily identified. The law should evolve in this area to create a better definition of space debris, potentially based on criteria such as its functionality and whether it can still be controlled. It is hoped that this will increase States’ willingness to fund, produce and implement technology to remediate debris in order to ensure continued safe access to outer space. The final remaining issue is one of positive duties to control and mitigate space debris. Whether or not a positive duty to actively remove debris exists is a question for debate. However, it has become clear that there could well be a legal responsibility to ensure debris mitigation strategies are in place as a

nation.12 This responsibility could be passed on to private companies under domestic legislation, as per Australia’s new Space (Launches and Returns) Act 201813 under which a debris mitigation strategy is a requirement for launch and overseas payload permits.14 Overall, the issue of space debris is a legal one as much as it is a technical one. A more accurate legal definition of space debris needs to be created in order for rights to removal, liability and mitigation requirements can be clarified. This is crucial in order to ensure the space industry continues to flourish and ensure long-term sustainability of both our planet and its orbit. B

Endnotes 1 European Space Agency, ‘Space Debris By the Numbers,’ (Web Page, January 2019) https:// www.esa.int/Safety_Security/Space_Debris/ Space_debris_by_the_numbers 2 National Aeronautics and Space Administration, ‘Micrometeoroids and Orbital Debris (MMOD)’ (Web Page, 14 June 2016) https://www. nasa.gov/centers/wstf/site_tour/remote_ hypervelocity_test_laboratory/micrometeoroid_ and_orbital_debris.html 3 United Nations Office for Outer Space Affairs, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (Debris Mitigation Guidelines), January 2010 4 Shuangyan, Shen, Xing Jin an Chang Hao, ‘Cleaning space debris with a space-based

laser system’ 2014 Chinese Journal of Aeronautics 27(4); Vladimir Aslanox and Vadim Yuinstev, ‘Dynamics of large space debris removal using tethered space hug’ 2013 Acta Astronautica 91; Jeremy Hsu, ‘Solar Sails Could Clean Up Space Junk’ Space.com (Web Page, 28 April 2010), https://www.space.com/8296-solar-sails-cleanspace-junk.html 5 Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961UNTS 187,entered into force 1 September 1972 (“Liability Convention”) 6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205, entered into force 10 October 1967 (“Outer Space Treaty”) 7 Note that damage caused on the surface of the Earth is covered under Article II of the Liability Convention. 8 United Nations Office for Outer Space Affairs, n. 2 9 European Space Agency, ‘About Space Debris’ (Web Page) https://www.esa.int/Safety_ Security/Space_Debris/About_space_debris 10 Outer Space Treaty, n. 4 art 8 11 International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (2001) ch IV(E) 12 United Nations Office for Outer Space Affairs, n. 6 It has been argued that that the adoption of these guidelines by space faring nations as well as the enactment of domestic legislation on the issue may amount to the duty to mitigate debris in space, being customary international law 13 Space (Launches and Returns) Act 2018 Cth 14 Ibid ss34 and 46G

April 2020 THE BULLETIN

FROM THE CONDUCT COMMISSIONER

Schedule 3 – Is compliance optional? GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

ome practitioners still seem to consider that compliance with Schedule 3 of the Legal Practitioners Act (Act) is optional. It isn’t. I am concerned that non-compliance with various parts of Schedule 3 is still far too common, even though we are nearly six years down the track from that Schedule coming into operation. The Full Court of the Supreme Court recently said the following in relation to a practitioner’s charging practices (my highlighting in underlining): “Legal practitioners are bound to a higher standard of honest dealing. The professionalism demanded of legal practitioners is not limited to the performance of legal work; it extends to their charging practices.”1 “The rendering of an account or claim for payment by a solicitor cannot, as is sometimes the case in the commercial world, be an ambit claim submitted with only the financial interests of the legal practitioner in mind. A legal practitioner is duty bound . . . to pay close attention to his or her account to ensure that only a fair and reasonable claim for work actually done is submitted.”2 I have previously written about the significance of those comments in the context of billing.3 However, in my view the sentiment expressed by the Supreme Court in those comments extends not only to charging practices, but also to costs disclosure and related requirements. The Act governs the legal profession. Adopting the Full Court’s wording, every practitioner is duty bound to comply with the requirements of Schedule 3. As a general comment, most practitioners seem to be able to get the original costs disclosure right – ie clause 10 of Schedule 3 is usually complied with, although sometimes the estimate of total legal costs (clause 10(1)(d)) leaves a bit to be desired. However, the ongoing disclosure

14 THE BULLETIN April 2020

required by clause 17 of Schedule 3 is generally done poorly, if at all. To quote from the Victorian Supreme Court in relation to the equivalent provision in Victoria (my highlighting in underlining): • “However, the Act requires the initial estimate and updated estimates to be given in writing. There is no doubt the applicant was given updated information about costs from time to time in the form of invoices and requests for money. The Act requires updated estimates of total legal costs in writing as soon as practicable after there is significant change to information previously disclosed, that is estimates of total future costs.”4 • there is “a prevalent misconception in the profession about the estimate provisions in the Act. Demands for progress payments or the delivery of regular invoices for work already completed do not satisfy the Act.”5 My observation is that that misconception is also prevalent in the South Australian profession. Simply giving your client a bill that exceeds the initial estimate of costs is not sufficient to satisfy clause 17. You must make that ongoing disclosure, in writing, as soon as you become aware of any substantial change to anything disclosed to the client previously. If, for example, you have originally given your client an estimate that your costs will be $5,000, it isn’t necessarily sufficient to wait until your costs exceed $5,000 to make the further disclosure that costs will exceed $5,000. If your costs are only (say) $2,000 when you realise that something has happened that means your original estimate will likely be exceeded, then that is that time you need to make that further disclosure. And it isn’t sufficient just to disclose that the original estimate will be exceeded – you need to make a new estimate of the total legal costs. Schedule 3 also sets out the consequences of not complying with your disclosure obligations. They most obviously arise when a practitioner fails to

make any kind of costs disclosure at the start of a matter despite being required to do so. However, they also arise when there is no ongoing disclosure as required by clause 17. Those consequences are set out in clause 18 of Schedule 3: • the client need not pay the practitioner’s bill unless it has been adjudicated by the Supreme Court; • the practitioner / the firm cannot maintain recovery proceedings against the client unless the firm’s costs have been adjudicated by the Supreme Court; • the client can apply under clause 30 of Schedule 3 for the firm’s costs agreement to be set aside; • the amount of the firm’s costs can be reduced by the Supreme Court on adjudication by an amount considered to be proportionate to the seriousness of the failure to disclose. If a practitioner fails to comply either with their disclosure obligations or with the other requirements of Part 3 of Schedule 3 (for example, with clause 18), then that failure is capable of constituting misconduct (clause 18(7)). For a few years after Schedule 3 commenced, I was fairly forgiving in relation to some breaches of Part 3 of Schedule 3. Those days are now long gone. The professionalism I will be expecting of practitioners extends to their compliance with the requirements of Part 3 of Schedule 3. I have no doubt that that is the standard that a member of the public is entitled to expect of a reasonably competent legal practitioner. B Endnotes 1 Legal Profession Conduct Commissioner v Romano [2017] SASCFC 167 at [63] 2 Legal Profession Conduct Commissioner v Romano [2017] SASCFC 167 at [83] 3 Article in March 2018 edition of the Bulletin 4 Johnston v LDA Legal Pty Ltd trading as Dimos Lawyers [2019] VSC 462 at [17] 5 Johnston v LDA Legal Pty Ltd trading as Dimos Lawyers [2019] VSC 462 at [19]

FROM THE ATTORNEY GENERAL

Space opportunities are boundless THE HON VICKIE CHAPMAN MP, ATTORNEY-GENERAL OF SA

pace is the next frontier and while I know not everyone understands its potential, there are boundless practical applications of what space will offer South Australia. Space data and technologies enable the modern economy to function. They provide us with everyday essentials such as internet access and weather and location information. Australia has a geographical advantage with a unique view into the galaxy. I am so excited about the prospects space will bring to our state that I’ve completed The University of Adelaide’s new Strategic Space Law program; a program I urge every lawyer here in SA embark on. Many millions of dollars are being invested – by Governments and private companies – in space industries. In South Australia, Southern Launch has already begun developing the infrastructure to deploy nanosatellites from the Eyre Peninsula at Whalers Way. It will target rockets with payloads between 50kg and

400kg, like Rocket Lab’s Electron, that carry microsatellites into polar or sun synchronous orbits to service applications such as monitoring agricultural land and surveillance generally. Clearly, there are a range of opportunities that arise from the growth of the space industry in this State for many sectors, but, for lawyers, it really is a case of “infinity and beyond” – that means, this is an opportunity for you. We as lawyers now have the opportunity to shape the law for this new and emerging sector in space and lead the world. Space law relates to work we are already doing, and requires simply an expansion of our current skill sets. If you already have a background in criminal, contract, environmental, intellectual property and the like, this will provide an opportunity to add to your expertise. The future of space law covers what is in our terrestrial realm of expertise: mediation,

arbitration, contractual disputes and the like, but with respect to infrastructure, space satellites, and potential damages claims for damage caused by space junk. Whether you are starting a career in law, or at the mature end, space law is an untapped opportunity for every practitioner. I would also like to highlight the University of Adelaide’s work in the development and clarification of international law as it pertains to military operations in space. We are not talking about something as simple as murder on the moon, but rather concerns subject matter of international importance. I have a keen interest in space and will continue to advocate for the burgeoning South Australian space industry. I commend the Law Society on the establishment of its Space Law Subcommittee to advise and guide the profession as we learn more about the opportunities and challenges space presents. B

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SPACE LAW

CHALLENGES FOR THE FUTURE INTERNATIONAL REGULATION OF SPACE ACTIVITIES: SPACE LAW IN A CHANGING TECHNOLOGICAL PARADIGM STEVEN FREELAND, PROFESSOR OF INTERNATIONAL LAW, WESTERN SYDNEY UNIVERSITY

he launch of a Soviet space object, Sputnik I, into Earth orbit on October 4 1957, heralded the dawn of the space age, the space race (initially between the Soviet Union and the United States), and the legal regulation of the use and exploration of outer space. Since then, some fundamental international legal principles have developed that significantly improve the standard of living for all humanity. The prospects for the future use of outer space offer both tremendous opportunities and challenges for humankind, and law at both the international, and also national level, will continue to play a crucial role in this regard. Space is vital in terms of world economy, strategic thinking, geopolitics, human rights, commercial enterprise, technological innovation, culture, religion and, frankly, the future of human kind. The impact of our use of space and the increasing range of space activities mean that law has an important role to play in ensuring that such activities are carried out in an appropriate manner, with appropriate outcomes and benefits and for appropriate purposes. Moreover, the avoidance of a ‘tragedy of the commons’ scenario is crucial if humankind is to garner the maximum benefit from what space can offer. There are, of course, various challenges ahead for legal regulation in this sphere. It is an imperative to explore the fundamental design elements of supra-national legal governance for issues of global concern – for example, the

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impacts of climate change, world poverty, the global commons and international criminal justice - whilst also retaining a grounded view of their significant practical contemporary relevance. This is highlighted for example, by the interaction between space technology and another area of great relevance to future global/international regulation – that of cyber law and cyber security. It is, for example, important also to recognize that such issues are increasingly relevant for the regulation of outer space, given the increasing rush towards a ‘digitization’ of space activities. There are clear parallels between the two regimes of outer space and cyber space, not only in considerations impacting on the law-making side, but also due to the seemingly endless development of technology that causes the activities of these two realms to become ever more interdependent. Indeed, the dream of space, and the desire of humankind to engage with space in more and more ways, has driven the development of space-related technology far more quickly, and in ways that would not have seemed imaginable even a few years ago. And, as typifies much about the development of legal rules in a sphere driven by technological innovation, space law has not kept pace with the multitude of space activities about which we can now marvel, and therefore increasingly struggles to properly address the vast complexities that specific uses of space give rise to. The evolution of space activities – and the associated laws that governed those activities – from an era where, initially,

only two States dominated the scene, to one where there are a growing number of space-faring States (currently estimated to be around 70-80), coupled with the exponential growth of commercial opportunities, which has seen primarily large and well-funded companies invest heavily in space technology, with a view to reaping significant economic returns. Much has been written about this trend towards the commercialization and privatization of space, and the increasingly important role that non-governmental actors play, not only to serve the needs and demands of civil and commercial end users, but also those of States and even military customers. These trends will, if anything, continue on an increasing scale given the trend towards the ‘democratization’ of space as new actors emerge due to developing technology, presenting considerable additional challenges to the ‘global commons’ legal characterization of space that stems from the fundamental roots of space law. Innovations such as small satellite technology and human aerospace flight will, ultimately, bring ‘space to more people’ in a tangible way – through direct participation and entrepreneurship. Space is, of course, vital for the very future of our life here on Earth. No country can afford to fall behind its friends and neighbours in relation to important aspects of space development. Indeed, we are standing at the dawn of a new era in space activities – which will require very considerable thought as to exactly how to adapt, and adopt,

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appropriate legal frameworks that are able to strike the most appropriate balance between sometimes competing interests. There is an urgent need to comprehensively assess these challenges and to develop and design the structure and content of these frameworks. In order to be relevant, innovative and sufficiently ‘forward-thinking’ to properly advance the field of space law, the development of these frameworks to meet the challenges of the 21st century must incorporate a comprehensive approach, breaking down the ‘silo’ mentality that has traditionally characterized not only existing legal research, but also the current space ‘law-making’ and regulatory processes. In essence, the challenge – indeed the imperative - is to develop legal and regulatory frameworks to properly address the demands and inevitability of technological innovation and an increasingly globalized and connected world, not the other way around. This represents an enticing opportunity for space lawyers to play an even greater role in the context of the ‘NewSpace’ phenomenon, by engaging more actively with new participants in space and therefore advocating for appropriately balanced ‘enabling’ laws and legislation to allow for the best path forward. It is not the time for detached and overly academic law-making – rather the future space law regimes must be closely integrated with, and aligned to the sheer breadth of influence and impact that space technology does and will assume. There are other examples of legal

challenges ahead for space law. In order to systematically approach these challenges, we must first understand the issues that they give rise to – only then are we in a position to construct, through a cooperative and multidisciplinary approach, the laws and standards that will allow humankind to maximise the benefits to be garnered from the exploration and use of outer space. The position is so fast-moving and fluid – given the speed at which innovation and technology develop – that it is neither possible nor appropriate to any longer attempt to rely exclusively on the traditional principles – as important as they will remain – that are to be found in the United Nations Space Law Treaties. Nor can we then rely on a simple ‘copy/paste’ transposition of terrestrial international law principles to somehow fill the gaps in the extra-terrestrial regulation of activities that are clearly beyond the contemplation of the original drafters of the treaties. I listen with interest to commentators who make a quantum leap to their ‘eureka’ moment, by postulating that laws that were developed on Earth for terrestrial activities can somehow magically fit into the unique environment that is outer space. This is a seductive conclusion, but far too simplistic to adequately meet the realities. Square pegs do not seamlessly fit into round holes. Indeed, with respect to two of the most pressing challenges for space law - the long term sustainability of space, and the potential militarization/ weaponization of space – the existing terrestrial environmental principles on

the one hand, and the laws of armed conflict on the other, whilst relevant, are certainly not adequate to fully meet the complexities that these issues present. Both of these pressing questions require specifically crafted legal rules that, even if they do draw on terrestrial law for some inspiration or comparison, are specifically designed to meet the peculiarities that stem from our legal characterization of outer space, as well as the complex non-legal factors that impact and shape the broad range of space activities. The attempts to deal with these challenges thus far have largely been exploratory, generalized, and on a nonbinding and voluntary basis. Whilst much has been made of the importance of ‘soft law’ instruments in shaping the face of the space regulatory regime, I have some reservations as to whether such an approach serves us well in the longer term, particularly in relation to such important issues in the context of our future uses of outer space and, indeed, in many respects, for the future survival of the human race. Indeed, notwithstanding the legal ‘value’ that some such instruments may have, at their core they are merely guidelines or recommendations that do not necessarily have the force of law, unless they are to be regarded as reflecting rules of customary international law, itself a very difficult assertion to substantiate in the absence of, say, a finding to that effect by the International Court of Justice. Given our increasing reliance on such non-binding measures in a whole range of space-related matters, do we run the April 2020 THE BULLETIN

SPACE LAW

risk that they will work only until they don’t? Shouldn’t they always be regarded only as interim measures, until traditional international law principles can be agreed and applied? And, indeed, is this approach feasible given the multitude of concerns associated with the continued development of space-related weapons technology, and the environmental (and other) risks that they pose? Ideally, binding treaty norms should be negotiated, to be adhered to in good faith by all relevant States. Of course, in the absence of a change of approach between, in particular, the major space powers, treaty rules are unlikely to come to fruition in respect of these issues in the short and perhaps medium term. This represents a major challenge ahead for all who understand the role of law in facilitating the peaceful and sustainable uses of outer space in the future. But it is a goal towards which we must all strive – the fact that we do not have such a treaty regime as yet does not mean it cannot happen. I have already made reference to the increasing use of small satellites. This technology may represent an important precursor to the establishment of indigenous and independent space programs in States that previously could not have contemplated undertaking such activities. By eliminating some significant barriers to entry, small satellite technology may facilitate capacity building, broader collaborative opportunities, and education/ training programs, as well as bridging (some) technology gaps for hitherto non-space faring States. It will also open up even more diverse commercial opportunities for a much broader range of potential service providers. I liken the potential of small satellites for space activities to the way that mobile phones have revolutionized terrestrial communications activities. We simply do not know where this technology might ultimately lead and what it will allow us to do. However, we can confidently expect that it will open the door to an even more expansive array of commercial opportunities.

18 THE BULLETIN April 2020

This inevitably represents a challenge to space law. For example, what is the impact of this technology for the space ‘market’? What forms of legal and regulatory frameworks are necessary to balance the interests of a particular State with the demands of entrepreneurs? How will existing space actors react to the potentially new range of participants that this technology will allow for? Should the governing legal regime encourage or discourage this evolution towards a multitude of space actors? What role should law have in facilitating the commercial possibilities offered by lowcost satellites? And how do we address the logistical, practical and legal issues associated with the proposed advent of so-called ‘mega-constellations’ of small satellites in the near future? I also mentioned earlier the crossfertilization of activities in outer space with those in cyber space – sometimes referred to as the ‘GAFTA phenomenon’ (Google, Amazon, Facebook, Twitter, Apple). How should the recent interest shown by major digital platform operators be regulated in the space sector? Will there be a major convergence between digital content and the space industry? How can/ should law react to, and properly regulate this rush towards the digitization of commercial space? Another challenge that arises is the development of aerospace technology and the legal regulation of human aerospace and space flight. Much discussion is required about the future legal regulation of these activities and, equally importantly, about who would take responsibility – and how - for the governance structures that will be needed. In this regard, one will need to examine the scope and legal/regulatory implications of, for example, proposals to (re)define the areas of air space and outer space into distinct zones corresponding to differing uses of space-related and highaltitude technology (drones, balloons, air travel, aerospace flights, suborbital flights, orbital flights, space stations, permanent human settlements)? In the area of geo-politics, strategic

space, and transparency and confidence building measures (TCBMs), must we really be required to think of space in terms of that now well-worn mantra – that it is ‘contested, congested and competitive’ – or is there another theme towards which future space law should direct itself ? Indeed, space is also communal, cooperative, a commons and commercial – these factors lend themselves to different views of space than the hard-line military perspectives, which focus in a binary and simplistic way on one element (only) of what space represents for humanity. In this regard, how can the regulatory framework minimise/mitigate the threat of conflict involving the space ambitions of States and/or the commercial sector? And, of course, no overview of the challenges facing space law would be complete without a consideration of the potential for the commercial exploitation of the natural resources of outer space. As is well known, the United States Congress passed the Space Resource Exploration and Utilization Act of 2015. This raises some thorny legal issues, but has also brought to the forefront intense geopolitical disagreement at the United Nations discussion level. Even putting those aside, how will technology ultimately enable this commercial exploitation to take place? Is there a potential legal/regulatory model that will adequately support these activities, particularly in light of the misgivings surrounding the existing treaty regime? These are but a few of the imposing challenges ahead for space law. The existing regime has largely served us well and, in certain respects, has been remarkably successful. But the ‘spacescape’ is changing very quickly, driven by this bewildering technological maelstrom that, over the last five years or so (and certainly for the next period of time), has far surpassed the already rapid evolution in space-related technology that began at the time I was born. We thus find ourselves in ‘interesting times’. The need for a more comprehensive and detailed legal/ regulatory framework for outer space

SPACE LAW

represents one of the most politicized and complex challenges ahead for our, and future generations. All stakeholders need to work together to find a path forward, in order to meet the challenges. The existing international regulatory framework, whilst important, cannot alone stand up to the strains that the ever increasing range of space activities – and the possibilities that still lie before us - impose. The opportunity presents for Governments, industry, scientists, entrepreneurs and civil society to work together to develop appropriate future legal frameworks. This leads to probably the most important question I can offer. How should the societal, community and human impacts of our inexorable march into

space be measured? Why has there been so little work done so far as regards the human rights aspects of the exploration and use of outer space? What legal and regulatory regimes best protect the broader interests of society without unduly restricting the development of appropriate space activities in the future? And, indeed, what are the criteria by which we are to determine the priorities as to what constitutes ‘appropriate’ future space activities? What role does law play in fashioning these choices? In answering these questions, it is important that, at all times, we are conscious of, and adhere to, the core principles of ‘humanity’ that underpin space law, in order to avoid the possibility

of scenarios that perhaps do not bear contemplation. In the end, the principle of humanity must be the bedrock of all global legal regimes, including the regulation of the exploration and use of outer space. In this regard, law will therefore continue to play a crucial role. But lawyers certainly cannot do this on their own. They simply do not have the tools to do so. All relevant stakeholders must exchange ideas, knowledge and expertise, and understand how each can contribute to an appropriate future where space continues to play a vital role in the activities of humankind. In the end, these discussions will be the most important way in which all of the exciting innovations and developments that we all dream about can best be advanced. B

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April 2020 THE BULLETIN

SPACE LAW

SPACE TOURISM: WHAT IS IT & HOW WILL IT BE REGULATED? DR STACEY HENDERSON, LECTURER, ADELAIDE LAW SCHOOL, THE UNIVERSITY OF ADELAIDE WHAT IS SPACE TOURISM? The idea of spending your annual leave as a space tourist is no longer as farfetched as it once was. Space tourism has been defined as “any commercial activity offering customers direct or indirect experience with space travel”,1 and also as “flights of humans intended to enter outer space (a) at their own expense or that of another private person or entity, (b) conducted by private entities, or (c) both”.2 Space tourism activities essentially fall into two main categories: orbital (such as visits to the International Space Station) and suborbital (which involve short duration space flights that are essentially straight up and down, with passengers experiencing microgravity for a few minutes before returning to Earth). The business of space tourism is still in its infancy. To date, there have been a very small number of space tourists, with only seven people having been to space as tourists. The first space tourist was Dennis Tito in 2001, who paid around US $20mil for a week-long stay in the Russian module of the International Space Station (ISS). In June, 2019, NASA announced that it was opening the ISS to commercial opportunities, including space tourism.3 NASA plans to offer up to two missions per year of 30 days each on the ISS at a cost of US$35,000 per night, not including the cost of transport to and from the ISS, which is estimated to cost an additional US $60mil.4 In September, 2018, SpaceX unveiled its planned 2023 lunar passenger mission which will take Yusaku Maezawa and six of his guests on a space flight around the Moon for an undisclosed, but undoubtedly substantial, sum.5 Since its establishment in 2004, Virgin Galactic has taken reservations from 600 people from

20 THE BULLETIN April 2020

60 countries for a 90 minute suborbital flight at a cost of US $250,000, with a further 3,700 people on a waitlist for tickets.6 Blue Origin plans to soon start selling tickets for an 11 minutes sub-orbital flight on its New Shephard spacecraft at an expected cost of US$200,000US$300,000.7 Closer to home, in May, 2019, Minister for Industry, Science and Technology, Karen Andrews, indicated that she wants to develop Australia as a space tourism destination, and that the Australian government was looking at legislation to allow space tourism from Australia.8

LEGAL ISSUES RELATING TO SPACE TOURISM All activities in outer space are regulated by international space law. Yet, the potential increase in the number of space tourists and space tourism activities in the future, and the dichotomy between the public character of international space law and the private character of space tourism, raise numerous legal issues that were never imagined by the drafters of the international space law treaties. A few of these legal issues are touched on below. One issue relates to the legal status and characterisation of space tourists. The current international space law regime does not specifically mention space tourists, referring only to astronauts and personnel of a spacecraft. Article V of the Outer Space Treaty provides that astronauts are to be regarded as “envoys of [hu]mankind” and that “[i]n carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties”.9 Article V further requires States Parties to render “all possible assistance” to astronauts

“in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas”, and that astronauts making such a landing, “be safely and promptly returned to the State of registry of their space vehicle”. The Outer Space Treaty does not define astronaut, but it would clearly seem to cover those with specialised training in government space programmes but arguably might not include space tourists. The Rescue & Return Agreement uses slightly different terminology than the Outer Space Treaty, but imposes essentially the same obligations on States Parties.10 The Rescue & Return Agreement refers to personnel of a spacecraft, a term which may be interpreted as being broader in scope than astronaut although still suggesting some functional role in the operation of the spacecraft and which might not include space tourists. The Moon Agreement (which is the least ratified international space law treaty, with currently only 18 States Parties) specifies that its States Parties are to regard “any person on the Moon” as both an astronaut and personnel of a spacecraft, and obliges those States Parties to “offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the Moon”.11 This would not extend to space tourists engaged in suborbital flights, nor would it extend to those engaged in space tourism activities in free space, although it would encompass those engaged in orbital flights or in tourism activities on the Moon or other celestial bodies. Introducing further confusion, the term spaceflight participant, a term not used or defined in international space law, is used by the US in domestic legislation12 and in relation to the International Space Station,13 but with the

SPACE LAW

White Knight Two and SpaceShipTwo directly overhead during a flyby at Spaceport America. The Virgin Galactic logo is clearly visible on the underside of SS2

term meaning different things. The lack of clarity in the existing international space law regime in relation to the classification of space tourists needs to be resolved as it has implications for the obligations owed to space tourists, and the protections they are entitled to. The second issue relates to liability. Space activities are inherently dangerous, and there is a real risk of death, injury, loss or damage to those involved in space tourism. Given the private nature of space tourism activities, it is likely that any contract for space tourism will include a carefully worded exclusion clause seeking to limit the liability and financial risk of the space tourism operator. The Outer Space Treaty and the Liability Convention only address liability at a State to State level. The Outer Space Treaty simply provides that a launching State “is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons…on the Earth, in air space or in outer space”.14 The Liability Convention creates a system of absolute liability for damage caused on Earth or to aircraft in flight,15 and a fault-based system of liability for damage occurring in outer space.16 While the fault-based system of liability for damage occurring in outer space also includes damage to persons or property on board a space object, and so could include space tourists, the Liability Convention regime only applies if the damage is caused by the space object of another State and expressly does not apply to damage caused by a space object of a launching State to nationals of that State nor to “foreign nationals during such time as they are participating in the operation of that space object”.17 Additionally, space tourists are unable to directly claim

compensation under the current regime, as only a State can bring a claim under the Liability Convention, limiting the overall ability for remedies in the event of harm. There are no specific liability rules for suborbital flights, which fall into a grey zone between international space law and air law, and which may not be in space at all, particularly given the lack of any agreement about where outer space begins.

THE WAY FORWARD The existing international law governing activities in outer space is not well-suited to regulating space tourism and space tourists. This is largely due to the fact that the drafters never imagined that private and commercial actors would be so engaged in space activities, let alone that there would one day be tourists in space. New international and domestic laws and regulations will be needed to develop a safe and viable space tourism industry in the future. B Endnotes 1 Stephen Hobe and Jürgen Cloppenburg, ‘Towards a New Aerospace Convention? Selected Legal Issues of “Space Tourism”’ (2004) 47 Proceedings of the Colloquium on the Law of Outer Space 377. 2 Frans von der Dunk, ‘Space tourism, private spaceflight and the law: Key aspects’ (2011) 27 Space Policy 146, 148. 3 ‘NASA to open International Space Station to tourists’, BBC News (online, 7 June 2019) <https://www.bbc.com/news/world-uscanada-48560874>. 4 Louis Brennan, ‘Virgin Galactic goes public and leads space tourism race’, The Conversation (online, 5 November 2019) <https://theconversation. com/virgin-galactic-goes-public-and-leads-spacetourism-race-126370>. 5 Tariq Malik, ‘How SpaceX’s 1st Passenger Flight Around the Moon with Yusaku Maezawa Will

Work’, Space.com (online, 18 September 2018) <https://www.space.com/41856-how-spacexbfr-moon-passenger-flight-works.html>. 6 Brennan (n iv). 7 Eric M Johnson, ‘Exclusive: Jeff Bezos plans to charge at least $200,000 for space rides – sources’, Reuters (online, 13 July 2018) <https:// www.reuters.com/article/us-space-blueoriginexclusive/exclusive-jeff-bezos-plans-to-chargeat-least-200000-for-space-rides-sourcesidUSKBN1K301R>. 8 Melissa de Zwart, ‘NASA and space tourists might be in our future but first we need to decide who can launch from Australia’, The Conversation (online, 11 June 2019) <https://theconversation. com/nasa-and-space-tourists-might-be-in-ourfuture-but-first-we-need-to-decide-who-canlaunch-from-australia-117912>. 9 Treaty on Principles Governing the Activities of States in the Exploration and Use or Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, GA Res 2222 (XXI) annex (entered into force 10 October 1967) (‘Outer Space Treaty’), Article V. 10 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, GA Res 2345 (XXII) annex (entered into force 3 December 1968) (‘Rescue & Return Agreement’), Articles 1-4. 11 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, GA Res 34/68 annex (entered into force 11 July 1984) (‘Moon Agreement’), Article 10. 12 Commercial Space Launch Activities, 51 USC §50902 (2010). 13 Principles Regarding Processes and Criteria for Selection, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers, November 2001 <https://esamultimedia.esa.int/docs/ isscrewcriteria.pdf >. 14 Outer Space Treaty, Article VII. 15 Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, GA Res 2777 (XXVI) annex (entered into force 1 September 1972) (‘Liability Convention’), Article II. 16 Liability Convention, Article III. 17 Liability Convention, Article VII.

April 2020 THE BULLETIN

SATISFACTION SURVEY

2019 SURVEY SHOWS INCREASE IN MEMBER SATISFACTION R

esults from the Society’s 2019 Member Satisfaction survey show that satisfaction with the Society is at its highest level since the biennial survey began 2013. Of the 318 respondents (making up 9.3% of admitted Members), 73% were satisfied with the Society, 12% were neutral, and 13% said they were dissatisfied. Of the total number of people who participated in the survey, 43% of respondents said they were “delighted” with the Society’s performance, representing an 11% increase in delighted respondents since the previous survey in 2017, and a 10% increase in overall satisfaction. “It is pleasing to see that for an organisation with a sizable and diverse membership, that satisfaction levels are at a high level,” Law Society Chief Executive Stephen Hodder said. “Of course, there is still plenty of

room for improvement, and we want to get to the bottom of why a small number of Members are dissatisfied and aim to address any issues to ensure our service to members is as valuable as it can be.” “We can partly attribute the increase in satisfaction to the provision of expanded and additional services made possible through efficient use of technology, both internally and in our interaction with members. We will continue to harness technology to serve Members better and identify where our methods can be improved.” Notably, continuing professional development was identified as the second most important service or product delivered by the Society (up from fourth in 2017). “This really speaks to the quality of the CPD presenters and the content of the program,” Mr Hodder said. “The feedback

OVERALL SATISFACTION

OVERALL PERFORMANCE

70 38

Agreement with the following statements:

2015

2013 80 70 60 50 40 30 20 10 0

32 14

80 70 60 50 40 30 20 10 0

from the surveys which completed by attendees after each CPD session reflect a high level of satisfaction with our CPD program.” “It’s also to pleasing to see the website enter the top five most important services or products provided by the Society. We put a lot of work into upgrading the website to make it more modern, user friendly and easier for Members to access the resources they need.” Publications remain highly regarded by Members, with InBrief, The Bulletin and Risk Alert all receiving a satisfaction rate above 80%. There was an 11% increase in Members satisfied with the digital delivery of the Bulletin, even though the survey was conducted before the launch of the Society’s new digital reader format. This reflects an increase in Members indicating that email is the preferred method of receiving Society publications.

• The Society inclusive and welcoming

73% AGREE

UP 3% FROM 2017

• Has a strong and positive reputation

77% AGREE

28 19

UP 5%

• Provides effective and timely service 75% AGREE

UP 2%

74% AGREE

UP 1%

• Is responsive

2017 80 70 60 50 40 30 20 10 0

2019

63 32

31 22

80 70 60 50 40 30 20 10 0

71% AGREE

UP 2%

• Offers high value membership

DELIGHTED

TOTAL SATISFIED

SATISFIED

NEUTRAL

22 THE BULLETIN April 2020

• Is effective

58% AGREE

30 12

DISSATISFIED

UP 2%

SATISFACTION SURVEY

IMPORTANCE OF PRODUCTS & SERVICES & SATISFACTION SUMMARY

KEY AREAS FOR THE SOCIETY TO FOCUS ON THE TOP 5 AREAS THAT MEMBERS WANT THE SOCIETY TO FOCUS ON ARE:

The top 5 important products & services for Members are: 1. ETHICAL & PROFESSIONAL SUPPORT 73% of Members are satisfied with the Society’s Ethical and Professional Support (including 49% who are delighted)

FIE

D MEMBE

S AT I

2013: 76% satisfied 2015: 76% satisfied 2017: 68% satisfied 2019: 73% satisfied

FIE

D MEMBE

RS S AT I

SATISFIED

INFORMING MEMBERS ABOUT CHANGES IN LEGISLATION AND KEY ISSUES AFFECTING THE PROFESSION

85% SATISFIED

PROMOTING ACCESS TO JUSTICE

64% SATISFIED

NO SATISFACTION DATA INCLUDED IN REPORT

IMAGE AND REPUTATION OF THE PROFESSION

SATISFIED

SATISFACTION WITH SOCIETY PUBLICATIONS THE TOP 5 VALUED SOCIETY PUBLICATIONS ARE:

INBRIEF

4. WEBSITE 74% of Members are satisfied with the Society’s website (including 43% who are delighted)

2015: 68% satisfied 2017: 63% satisfied 2019: 74% satisfied

87%

THE BULLETIN (HARDCOPY & ELECTRONIC) 83% RISK ALERT

80%

IN THE NEWS

76%

WHAT’S ON

74% SATISFACTION LEVELS

FIE

D MEMBE

LOBBYING FOR BETTER OUTCOMES FOR THE LEGAL PROFESSION IN SA

69%

2013: 80% satisfied 2015: 75% satisfied 2017: 70% satisfied 2019: 75% satisfied

3. PUBLICATIONS See Publications satisfaction graph 

74%

75%

2. CONTINUING PROFESSIONAL DEVELOPMENT 75% of Members are satisfied with the Society’s Continuing Professional Development (including 53% who are delighted)

75%

MAKING PROACTIVE SUBMISSIONS RELATING TO THE PROFESSION, JUSTICE AND LEGISLATION

S S AT I

ISSUES & CHALLENGES FOR THE PROFESSION

5. RISK MANAGEMENT (PUBLICATIONS AND EDUCATION PROGRAM) 83% of Members are satisfied with the Society’s Risk Management programs and resources (including 52% who are delighted)

FIE

D MEMBE

S AT I

2015: NA 2017: 72% satisfied 2019: 83% satisfied

THE TOP 5 ISSUES AND CHALLENGES FACING ADMITTED MEMBERS ARE:

HEALTHY WORK-LIFE BALANCE

AFFORDABLE ACCESS TO JUSTICE

STRESS, DEPRESSION AND OTHER MENTAL HEALTH ISSUES

HIGH WORKLOADS BEING FINANCIALLY AND TIME SUSTAINABLE / PRESSURES MAKING PROFIT

April 2020 THE BULLETIN

COVID-19

THE POLITICS OF PANDEMICS DR ANNA FINIZIO, POLICY LAWYER, LAW SOCIETY OF SA

n the constantly evolving chaos, it is likely that this article will be out of date within days of it being published due to the frequent changes to laws and restrictions in response to the coronavirus (COVID-19) pandemic. The politics of pandemics are often as brutal as the pandemic itself, as leaders grapple with a delicate balancing act between saving lives and maintaining livelihoods. Public health priorities often come at the cost of individual rights and freedoms. There have already been widespread restrictions upon the freedom of movement both domestically and internationally and we continue to see stricter measures being imposed as to social distancing on a daily basis. The recent declarations of public health emergencies by Federal and State governments have enlivened powers that have never been utilised before. These are unprecedented times and require, in many respects, untested measures. Government powers under our various public health and emergency laws are extremely broad and coercive. They give rise to an inevitable tension between the enforcement of public health measures and the infringements on individual rights and freedoms. In recent weeks the country has waited to hear its fate by way of television address by the Prime Minister. These addresses are often followed the next day by subsequent announcements by state leaders as to how these restrictions will be enforced in each respective state and territory. While a national approach to the problem seems reasonable, tensions have arisen between the Federal government and the eastern states who are trying to contain the highest rates of COVID-19 in the country most notably with respect to the closure of schools. It is expected we will see those states breakaway from the federal recommendations and implement stage three restrictions (i.e. confining people to their homes except workers classified as essential) earlier in their own jurisdictions.

24 THE BULLETIN April 2020

The federal legal framework predominantly exists to support a national response, guide policy and collect data.1 The National Cabinet has been taking advice and accepting recommendations from the Australian Health Protection Principal Committee (AHPPC). The AHPPC is responsible for advising on national health protection priorities and coordinating emergency operational activity in health responses to national issues. The ever-changing rules and restrictions announced by the National Cabinet are ultimately enforced by the states and territories. State and territory governments have the primary responsibility for the public health response to public health events in their respective jurisdictions. The powers under the relevant South Australian legislation are explored below.

SOUTH AUSTRALIA - A STATE OF EMERGENCY In South Australia, broad powers exist under the Public Health Act 2011 (SA) (the Act) to prevent the spread of infectious diseases. These powers include to require a person to undergo an examination, test or medical treatment and the power to require a person to be detained. General powers such as the power to restrict movement into and out of places, or impose areas of quarantine are also available under the Act. A number of amendments to the Act were passed early March 2020 (following COVID-19 being declared a notifiable condition2) to deal with the COVID-19 outbreak.3 The changes include: • Orders can be made orally in urgent situations; • A person can be detained (without having not complied with any orders previously) in urgent situations if they “could have been exposed to a notifiable condition” and “could present a risk to public health”; • A person can be directed to do something if they “could have been exposed to a notifiable condition”;

•

A person can be directed to remain at a specified place, including, without limitation, a hospital or quarantine facility; and • A warrant for arrest can be issued if, a person who has a notifiable condition; has been exposed to a notifiable condition; or could have been exposed to a notifiable condition is engaging (or has engaged) in conduct that creates a risk to others. Under the changes to the Act, judicial oversight of detention orders remains and must occur within 48 hours where someone is detained on the basis that they “could” have been exposed to a notifiable condition. Individuals subject to directions by the Chief Public Health Officer can seek a review of those directions by the South Australian Civil and Administrative Tribunal. These changes do not bestow new powers, they simply provide easier access to existing powers where “urgent action” is required. What is urgent is left to the discretion of the Chief Public Health Officer. Another important change is the previous threshold required to use these powers has been lowered. There is no longer a requirement that you actually have the condition, or that you have been exposed to the condition, it’s enough that you “could” have been exposed. This means you could be prevented from running your business, or caring for a dependent family member on the basis that you might have been exposed. This could have some pretty drastic implications. While such measures may seem appropriate given the rising cases of COVID-19 in South Australia, they give rise to an inevitable tension between the enforcement of public health measures and the infringements on individual rights and freedoms. Following the amendments to the Act, a public health emergency was declared for the very first time in South Australia under section 87 (and later upgraded to

COVID-19

a major emergency4), which provides the government and the South Australian Police with additional powers under the Emergency Management Act 2004 (SA). The emergency powers allow directions to be made for entire cohorts as opposed to individuals under the Act. Section 25 of the Emergency Management Act sets out the extensive series of powers available, including the power to direct or prohibit the movement of persons and vehicles; take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing; and direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons.5 These measures are being used to implement such things as restrictions around indoor and outdoor gatherings and closure/restriction of trade of certain businesses. A failure to comply with a direction can attract a penalty of $20,000 if the offender is a natural person; or $75,000 if the offender is a body corporate.6 It is hard to argue against the need for such measures in the current circumstances. However, given the uncertainty and confusion being caused by unclear federal messaging and inconsistency between federal and state approaches in some instances, it may be easier than you think to contravene one of the constantly changing social distancing measures. In addition to these powers, we have seen federal and state biosecurity laws enlivened to control borders and impose quarantine conditions. Similarly, the powers available under our biosecurity legislation are incredibly broad and have widespread implications for individuals, families and businesses.

INDIVIDUAL HUMAN RIGHTS VS THE NEED TO PROTECT PUBLIC HEALTH The political and legal response to COVID-19 outbreak has highlighted the tensions that exist between public health

and individual rights and freedoms. On the face of it, the changes to the Act discussed above appear reasonable and allow the flexibility to act in urgent circumstances. However, it is hoped that such measures (particularly the power to detain) will not be required to be used widely. The new powers will remain long after COVID-19 is contained. Some may recall the justification of the curtailment of individual rights that occurred in the context of national security following the September 11 attacks and have continued to date. We should always approach laws that seek to increase the coercive powers of government and limits the rights of individuals with caution. The overriding principle of the Act is that the community has the right to be protected from a person whose infectious state or behaviour may prevent a risk. However, the Act also states that any restrictions imposed on individuals must be proportionate to any risks, and should be the least restrictive means possible to prevent the spread of disease. Similarly, emergency powers should also be limited and proportionate. Ideally, we should strive for a framework that both protects the health of the public, and respects individual rights and freedoms. Although, there appears to be a consensus at this time, that in order to reduce the spread of COVID-19, serious restrictions upon our way of life and rights is both a necessary and proportionate response to the risk.

THE NEED FOR ONGOING SCRUTINY The need for governments to act swiftly to deal with escalating public health crises is generally supported. The Executive Director of the World Health Organisation (WHO), Dr Michael Ryan, warned world leaders in March 2020, that perfection is the enemy of the good when it comes to emergency management. In Dr Ryan’s words, speed trumps perfection. To think that policy is enacted in this type of environment, while maybe

necessary, is also troubling. It is counter to our expectations of what good policy making entails – a well thought out response to an issue which is underpinned by evidence. Policy making almost always involves a number of trade-offs as well balancing the various rights, needs and protections of different cohorts. In the current climate, the decision to adjourn Federal Parliament until August 2020 is deeply disappointing. It is hoped that state and territory governments fighting COVID-19 at the epicentre do not follow suit. We continue to see powerful directives being made at a national level and significant use of executive powers with little scrutiny. In New Zealand it has been reported that a Select Committee will be formed with representatives from all parliamentary parties, that will meet via video conferencing around three times a week to provide oversight of the New Zealand Government, while parliament is shut down as part of the national lockdown. The need for ongoing oversight and scrutiny of these significant decisions is crucial. Many businesses have had to quickly adapt and embrace technology in order to operate during the COVID-19 crisis, why can’t our Federal Parliament? B

Endnotes 1 See the National Health Security Agreement 2008 which supports the National Health Security Act 2007. 2 Section 63 of the Public Health Act 2011 (SA) provides that the Minister may declare a disease or medical condition to be a notifiable condition, if it is necessary in the interests of public health because of urgent circumstances. 3 South Australian Public Health (Controlled Notifiable Conditions) Amendment Bill 2020 4 See section 23 of the Emergency Management Act 2004 (SA). 5 See section 25 of the Emergency Management Act 2004 (SA). 6 See section 28 of the Emergency Management Act 2004 (SA).

April 2020 THE BULLETIN

COVID-19

Justice system responds to COVID-19 crisis

he COVID-19 pandemic has created unprecedented challenges for all industries, and the legal industry is no exception. As the Government continually updates its advices and rules in response to the rapidly spreading outbreak of the coronavirus, the legal profession has been doing its best to modify practices and procedures to comply with the advices and help stop the spread. State and Commonwealth Courts have provided regular updates about measures they have been taking to ensure the wheels of justice continue to turn while also prioritising the health and safety of the community. Naturally, this has been an extremely difficult logistical challenge inevitably causing some uncertainty among the profession and questions about how different agencies are dealing with the situation. The Society has been working closely with Members and key stakeholders to deal with the implications arising from the COVID-19 outbreak and have been in frequent contact with the Courts as the situation evolves, conveying concerns raised by practitioners, seeking clarifications and providing regular updates via e-newsletters and via the Society’s COVID-19 Resource Hub which can be accessed from the Society’s home page. A key measure the Society has advocated for is the increased use of technology to reduce the risk of transmission of COVID-19 while maintaining an operational justice system, including the granting of adjournments via email. Courts, tribunals, correctional facilities and other agencies have instigated a number of measures, including social distancing rules, increased remote technology use, interim processes for administrative adjournments, and enhanced sanitation practices to mitigate the spread of COVID-19.

26 THE BULLETIN April 2020

Below is a brief wrap-up of some of the changes being implemented in the justice system. Please note as this is a rapidly evolving situation the below measures are subject to change. For upto-date, comprehensive information about changes to procedures in courts and other agencies relating to the legal profession, visit the Law Society’s COVID-19 Resources Hub, which can be accessed via the hone page: www.lawsocietysa.asn.au

MAGISTRATES COURT With regards to criminal proceedings in the Magistrates Court, registries will be preparing new rosters to take effect from 6 April to at least 31 July. Courts will continue to run overnight custody lists, bail applications, major indictable lists and Family Violence lists. The first return and general lists will be vacated and fresh dates given to defendants who already have received a summons. The Magistrates Court has introduced a process for facilitating administrative adjournments where appropriate. Under the process, if a party requests an administrative adjournment, they must include with the request confirmation of the consent of the other party to the adjournment. If the consent of the other party is not provided, the magistrate will consider the application on a case by case basis. SAPOL have provided a telephone list to facilitate consent for administrative adjournments. The phone numbers are available at via the Society’s COVID-19 resources webpage. All documents to be relied on by parties are to be emailed to the appropriate court registry and the other party or parties by no later than 3pm on the business day prior to the hearing to eliminate the need for documents to be physically tendered on the day of the hearing.

Major indictable matters Major Indictable matters will generally proceed as before. The Adelaide Magistrates Court may introduce additional time slots in the afternoon list to spread the list more evenly throughout the day. Intervention courts The Treatment Intervention Courts will continue in a modified form to reduce social contact. Group activities have been suspended. The running of the Abuse Prevention Program has been suspended until further notice. Magistrates can still refer men to the program, whereby Assessment interviews will take place by telephone, but the defendant’s commencement on the program will be delayed until the program recommences. Circuits At the time of writing, the court was exploring the possibility of hearing circuit matters by AVL and phone.

DISTRICT COURT The District Court has suspended jury trials, at least until 1 July. Those matters listed for trial by jury on a date prior to 1 July 2020 have been vacated and will be called on for the purpose of relisting. Trials listed on a date after 1 July 2020 will retain their current listing. Matters that are listed for trials by Judge alone prior to 1 July will continue. Elections for matters to be heard by judge alone will continue in the usual way. The Court is taking a number of measures to ensure the recommended physical distancing of 1.5m is observed.

SUPREME COURT The Supreme court will, at the time of writing, to hold jury trials if they can be managed consistently with public health directions and advice. In order to ensure

COVID-19

safe distancing between jurors, jurors will be allowed to sit both within and outside of the confines of the jury box by making provision either in the well of the court or the public gallery of the court room. This will necessarily limit public access. Current hearing dates for civil trials will be maintained and new trials set down. Judges, having regard to any concerns raised by parties or to ensure safe practices has have sit on some days. Criminal and Civil listing conferences will be held by an electronic audio communication unless the Judge otherwise directs. If any orders other than a trial date are sought, the procedure for directions hearings and interlocutory applications must be followed. All mediations before Supreme Court Masters have been postponed and will be given a new date, commencing June 2020.

SACAT SACAT has suspend all offsite hearings and visits as of 23 March. The majority of hearings will be conducted by video conference or telephone. In a small number of cases, only in accordance with public health information and if social distancing is available, SACAT may determine that it will be preferable for there to be physical attendance at SACAT. Matters that can be deferred will be identified and stakeholders will be contacted about relevant cases. All non-essential meetings, presentations or training will either be held by video conference or telephone or deferred, as appropriate.

SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL With regards to matters before Commissioners, initial directions hearings, expedited decision hearings, conciliation conferences, public sector grievances, are to be conducted by telephone.

With regards to matters before Presidential Members, Pre-hearing conferences, Directions hearings, Compliance conferences to, and Settlement conferences are to be conducted by telephone. Where possible, hearings and appeals, may be heard and determined on the papers.

FAMILY & FEDERAL CIRCUIT COURTS The Adelaide Registry of the Federal Circuit Court will not be holding any final hearings until 31 July 2020. In lieu of a final hearing, parties will be allocated a directions hearing listing. The Court will continue to deal with matters which require urgent attention Callovers in the Federal Circuit Court in Adelaide have been postponed until further notice. The Family Court has made significant changes to court operations, but urgent and priority trials such as those involving children and family violence aspects will be listed and conducted in a manner that observes safe distancing and hygiene practices. Non-urgent property only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the Judge. Trials or hearings that can appropriately be done by telephone will be.

FEDERAL COURT Parties have been requested to identify (with the assistance of the Court) opportunities by which listings may proceed either by way of telephone conference or other remote access technology. The Court is working to ensure that as many listings as possible are able to proceed. Speacial Measures setting out arrangements for the continued operation of the Court came into effect on 23 March.

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS The majority of ODPP staff are working form home but still contactable via email and telephone. ODPP staff will continue to attend court subject to arrangements put in place by the courts. Staff will cancel non-critical face-to-face meetings and make alternative arrangements (eg video link) where possible. ODPP staff will focus on conducting judge alone trials, given jury trials have been suspended.

CORRECTIONAL SERVICES The Department for Correctional Services has suspended all personal prison visits. Professional visits have been reduced to 50% with the following precautions: • 1 adult visitor per prisoner • Prisoner and visitor must sit opposite each other • No ‘personal’ contact • No sharing of food and water bottles.

CYBERSECURITY A number of scams trying to take advantage of the COVID-19 situation have been identified. For examples, scammers have been sending phishing/malware emails disguised as health updates and the like. Practitioners should ensure they continue to observe stringent cyber security practices. In addition, with the expansion of remote working, which no doubt will continue, it is important to recognise devices (eg phone, tablet or laptop) used from home might not have the same security protections as a main office computer. Practitioners should ensure that their devices are secure and they can securely connect to their office network. Practitioners using wireless networks should ensure the network is secure. B April 2020 THE BULLETIN

COVID-19

Practical guidance for companies during the COVID-19 pandemic CHRIS HARTIGAN, DAVID EY, ERIN MCCARTHY, TIM CAPELIN, & TIM LANGE, PIPER ALDERMAN The COVID-19 pandemic has created unprecedented challenges for businesses, who are dealing with how remain operational while ensuring the safety of their workers, while also complying with industrial law obligations and Government directives in the wake of this public health crisis. This article provides sone guidance on the most commonly asked questions with regards to employment law issues. What should our company have put in place by now? rganisations should have implemented their pandemic action plans already, or they should be working on finalising and implementing a plan soon. There needs to be close attention to communication with employees to manage their health, but also business continuity needs. Clearly business continuity will depend on having remote access arrangements where that is applicable, and checking that IT infrastructure can cope with the number of people working remotely.

What are the key issues if staff are to work remotely? If a business is asking staff to work remotely, it needs to make sure that in the first instance they have the tools to undertake the work including that there is appropriate IT infrastructure which can sustain the amount of work to be undertaken. Are all laptops able to be used or do staff have their own laptops? Organisations should also check that the home workplace is safe for the work being undertaken. Many businesses already have checklists to establish whether the employee can undertake their work tasks safely at home. If businesses are asking employees to work from home, then it is likely that workers’ compensation legislation would cover such work as would workplace health and safety legislation. Accordingly, you should keep that in mind when asking people to work remotely.

28 THE BULLETIN April 2020

Can we send employees home if they are clearly too sick to work? Yes. All employers and organisations that engage employees have obligations to keep their employees as safe as reasonably practicable and that includes not only an ill worker, but also other workers who might be exposed to the ill worker. Can you insist that employees work from home even if they are not sick or injured? Yes. If an employee has been in “close contact” with a person who currently (or has had) a confirmed case of COVID-19, then there is a risk that they also have become infected. Health authorities are saying that close contact includes being face-to-face for more than fifteen minutes, or sharing a closed space for more than two hours. It is currently not mandatory for such persons to stay at home, but it would be advisable to preserve the health of other employees. Can we direct employees to work from home? Yes. So long as appropriate arrangements are in place to allow them to do it safely. Can we direct employees to take annual leave? No. Annual leave is only taken by agreement except in circumstances where there is a shut-down allowed for under an award or an enterprise agreement. Some, but not all, awards and enterprise agreements provide for circumstances where an employer can direct an employee with excessive leave accruals to take some

of that leave. You may need to get advice about whether and how you can require employees to take annual leave during a shut down or to reduce excessive accruals while operations allow. Can we require employees to stand down without pay? Yes in certain circumstances. The Fair Work Act 2009 (Cth) (Fair Work Act) allows such things where there is an interruption of work which is not the cause of the employer but such a shut-down must be implemented “fairly”. A stand down can be subject to challenge in the Fair Work Commission. You may care to talk to staff about giving them access to paid leave such as annual leave and long service leave during a shut-down period. If I need to make employees redundant because of COVID-19 impact, what must I do? The Fair Work Act requires that employers comply with an appropriate process before they make people redundant. You should seek advice about how to implement redundancies without triggering an entitlement for staff to the payment of compensation because of an unfair dismissal. Editor's Note: The Federal Government has recently announced a number of financial assistance schemes to support businesses and employees impacted by the pandemic. Visit australia.gov.au for more information. What if an employee refuses to work because they say the situation is unsafe? You need to carefully consider the facts relating to each such person and consider whether their demand is reasonable or not. You may need to get advice about your workplace health and safety obligations in respect of such a situation. Should the business be taking measures to keep employees at work safe? Yes. There is significant advice about how the workplace can be kept safe including with regard to implementing hygiene processes, extra cleaning, social

COVID-19

distancing and cancellation of meetings of large groups of people. Client interaction might be restricted to email and telephone contact and, where appropriate, working remotely. All of those measures would go towards meeting the obligations on the employer to keep their employees and people affected by their business as safe as reasonably practicable. Should we try to vary our enterprise agreements to reduce the impact of the virus on our business? Unfortunately, varying collective enterprise agreements under the Fair Work Act is a very difficult and lengthy process. You should seek advice about whether there is flexibility under your enterprise agreement which would allow you to achieve your business objectives. Can we ask an employee if they have tested positive for COVID-19? Answer: There are extensive privacy law and discrimination law provisions which prevent an employer from obtaining

information about the health status of their employees without the consent of the employee. Having said that, if you suspect that someone is seriously ill then you don’t need to know why they are ill to direct them to go home until they are well enough to return to the workplace. You might also consider requiring an employee (who has been absent from work due to illness) to provide a medical certificate confirming that are fit to return to work. Can we collect information about staff showing COVID-19 symptoms? Answer: Health information of an individual staff member, such as their test results for COVID-19, is likely to be sensitive information under privacy laws. Businesses need to consider whether it is necessary to collect, use or disclose health information about individual employees in the context of the COVID-19 outbreak. Consent from individual employees is generally required for a business to collect health information about an individual.

Can we disclose information about COVID-19 symptoms of a staff member to others? Answer: Businesses must ensure that any disclosure of health information about an individual employee is allowed under one of the permitted exceptions under privacy laws, such as for any purpose for which the individual has consented or where you reasonably believe that the disclosure is necessary to lessen or prevent a serious threat to life, health or safety of an individual or to protect public health or safety. The exceptions can turn on the specific facts of a case so advice should be obtained before acting. This article was originally published as “COVID-19 FAQs: Employment Issues” on the Piper Alderman website1 on 19 March 2020. B

Endnotes 1 https://piperalderman.com.au/insight/covid-19faqs-employment-issues/

What COVID-19 could mean for the legal industry ELIAS TABCHOURI, PRINCIPAL LAWYER, MACQUARIE LAW GROUP

s a lawyer accustomed to spending every working day in court I sit contemplating what the future holds for the legal industry. What is not in dispute is that the legal industry is an essential service and therefore must continue. The way it will proceed is the real question that many of us are still coming to terms with. Different areas of law offer different challenges and solutions for the lawyers that practice within them. Technology allows most lawyers to work on most of their matters from home. The days of requiring face to face meetings have been replaced by any number of different audio visual programs, alleviating the need to be in one room.

Lawyers that practice in areas that centre primarily on drafting contracts and agreements will find working from home a fairly simple transition of what they already do in their offices, to their homes. All resources required are available electronically, as the days of requiring access to books left us some time ago. In theory then it seems that all can go on smoothly, or so it seems. Courts have now implemented procedures wherein physical appearances are now the exception rather than the rule. Jury trials have been vacated in most jurisdictions. Local court hearings for defendants on bail have been vacated. Mentions and adjournments are essentially

being done electronically without the need for lawyers to attend court. There is currently being put in place procedures for lawyers to attend to matters requiring argument in court to be done via audio visual capabilities, with all parties in different locations. Even the High Court has decided that it will not hear cases until August 2020. We live in a different legal world. What the future holds will be dictated by what happens in relation to the COVID-19 pandemic. Lawyers, like the rest of the community, are now in the greatest fight it has seen in 100 years. The industry will rationalise and probably make changes that will become the norm well after the virus is gone. B April 2020 THE BULLETIN

RISK WATCH

NEW CIVIL COURT RULES

New Regime for Pre-Action Steps: Fewer Carrots – More Stick

he advent of the new Uniform Civil Rule (UCR) for all three of the Supreme, District and Magistrates Courts should simplify the lives of litigation lawyers in that there will be only one set of rules. There will, however, be significant challenges in coming to grips with the changes brought about in these new Rules. One of the most significant areas of change concerns the steps to be taken prior to the issue of proceedings. The Supreme Court has advised that the level of compliance with the preaction protocols contained the previous Rules was unsatisfactory. The Joint Rules Advisory Committee (JRAC), being the body behind the Rule change, therefore decided in light of the benefits of preaction requirements that further processes should be introduced to ensure the requirements are complied with. Under the UCR, pre-litigation requirements are mandatory for claims but optional for originating applications. The numbering of the final version of the UCR might change, but the draft of the Rules current when this article was written provides for Pre-Action Steps in Chapter 7, Part 1, Divisions 1–6 and Alternative Pre-Action Steps in Chapter 7, Part 2. The relevant Rules are Rules 61 and 62. A number of the exemptions contained in the old Rules have been retained and there is an exemption if there is a statutory time limit of three months or less (see Rule 61.8 for the exemptions). In the CPD sessions held so far to promote familiarisation with the UCR, Justice Blue has emphasised though that the mere fact that a time limitation of three or six years is about to expire is not a reason in itself not to comply with the requirements. Justice Blue has specifically said that “parties should not be able to avoid the need for compliance by being dilatory”. It can be expected that the consequences of noncompliance (see below) will be enforced more stringently under the new Rules.

30 THE BULLETIN April 2020

The existing obligation to give notice of a personal injury in the case of medical negligence has been extended to personal injury claims generally. This obligation does not however apply to compulsory third-party claims or workers compensation claims which already have their own similar statutory requirements. Rule 61.7 (3) provides that (subject to the exemptions set out in R.61.8) before commencing a claim in the Court, the applicant must have served on the respondent a pre-action claim. The requirements for a pre-action claim are set out in R.61.7 (1) (a) – (l). Notably, this document now also provides for an estimate in the prescribed for of the total costs likely to be incurred by the applicant if the matter proceeds to trial. There are further requirements in respect of a personal injury claim set out in R.61.7 (2) (a) – (g). Once a pre-notice claim has been served, in personal injuries matters, a respondent has 30 days to respond; in general matters a respondent has 21 days to respond. This seems an extraordinarily short time for a response to be provided, especially if there are insurers involved.

The shortness of this time limit will put pressure on respondents. The requirements for a response are set out in R.61.9 (1) (a) – (i) and include (unless the action is a personal injury claim) an estimate in the prescribed form of the total costs likely to be incurred by the respondent if the matter proceeds to trial. Further requirements in respect of personal injury claims are set out in R.61.9 (2) (a) and (b). Significantly, R.61.9 (4) also provides that a respondent is not excused from serving a pre-action response by reason of a defect or omission in the pre-action claim in complying with a paragraph of R.61.7 (1) or (2). A respondent can state an intention in the response to make a counter-claim against the applicant. If a counter-claim is so notified then the applicant must also respond in accordance with R.61.9. Provision is also made for bringing third parties into the process by a respondent issuing a pre-litigation notice to a third party (see R.61.10 (2)). The previous requirement of a preaction meeting in construction disputes has been extended to apply to claims

NEW CIVIL COURT RULES

generally, but the meeting can be by audiovisual link or by telephone. The meeting is to take place within 21 days after the last pre-litigation response. Rule 61.12 sets out who is to attend and what is to occur at the pre-action meeting. At the meeting each party must negotiate in good faith with a view to settling the dispute and should identify the main issues in dispute and consider how they might be resolved without recourse to litigation, amongst other things. This is a new step in most matters and will take some getting used to! In debt collection matters, the applicant may elect instead to serve a final notice, which is modelled on the existing final notice used in the Magistrates Court. In minor civil actions, the applicant must either serve written notice of intention to issue an action of a final notice. The existing procedure in the Magistrates

Court for entering into an enforceable payment agreement has been retained and extended to all Courts. An applicant who institutes proceedings by way of claim is required to answer on the Claim questions as to whether the pre-litigation steps were taken and, if no pre-ligation notice was served, to plead the applicable ground of exemption in the statement of claim. If the Claim form discloses that the pre-litigation steps were not taken, the first directions hearing in the proceeding will be a special direction hearing to address compliance. The Court may order that steps that should have been taken be taken. There is a default costs rule that a party in default pays the costs of the other parties’ attendance at the special directions hearing on an indemnity

RISK WATCH

basis fixed in a lump sum and payable forthwith (see R.61.14). This is a new tool in the Court’s armoury and should be the “big-stick” that is necessary to ensure compliance with the new regime of preaction steps—practitioners need to sit up and take notice. Further, an applicant who institutes a proceeding without having given a prelitigation notice will ordinarily not be able to recover the costs of preparing and filing the claim. The Court also has a discretion to take non-compliance into account when making costs orders after the final determination of the action. It can be expected that other changes will feature in future Riskwatch articles, however, the changes to the pre-action steps are perhaps the most significant and should be immediately noted by all litigation lawyers.

April 2020 THE BULLETIN

NEW CIVIL COURT RULES

Filing and service in the new South Australian Uniform Civil Court Rules EVA WODECKI, LEGAL OFFICER, ETHICS & PRACTICE UNIT, LAW SOCIETY OF SA

he Uniform Civil Court Rules (The Rules) are due to commence operation on 27 April 2020. Whilst to a large extent the existing procedures are preserved, there are some procedures that have changed. The Rules streamline civil procedure as the Rules are uniform and apply to the Magistrates Court, District Court and Supreme Court. Practitioners who work predominately in one jurisdiction will need to familiarise themselves with the new procedures.

FILING OF DOCUMENTS Documents lodged electronically are conditionally accepted for filing once a case number or file number is allocated and the Court’s seal applied. The Registrar may reject such documents provided this is done so within seven days and the effect of this is that the document is treated as not having been filed. Documents lodged over the counter (filed in physical form) are treated as filed once a case number or file number is allocated and the Court’s seal applied. It is understood the rationale behind conditional acceptance of documents lodged electronically is that the Registry is not in a position to check every document lodged electronically at the time of lodgement. The existing rule in relation to rejection of documents that do not comply with the rules or are frivolous, vexatious, scandalous or an abuse of process remain. In addition, the Registrar can now reject proceedings from a declared vexatious litigant who has not obtained leave to proceed.

32 THE BULLETIN April 2020

Another new development is the ability to file a document on a restricted access basis. The Rules provides for various categories of restricted access basis. Formal offers and Pre- proceeding documents will automatically be filed on an excluded access basis so that access to view or copy that document is limited to exclude the judicial officer assigned or expected to hear and determine the proceeding. If a party seeks to have a document filed on restricted access basis then at the time of filing the party will need to issue an interlocutory application specifying the specific access basis sought and make an oral request to the Registrar for interim treatment. The document will be treated as filed on the specified restricted access basis until the application is determined. The provisions in relation to entitlement to amend have in general been preserved. Note however that these provisions do not apply to Minor Civil Actions. The Rules set out a table defining the type of filed document that may be amended, in what respect that document may be amended and the conditions of amendment. For example, if a party seeks to add to the List of Documents, amend a Notice to Admit (within seven days) or amend Interrogatories (within 14 days) then they can do so as of right. Other amendments require leave or consent. Amendment of originating process or pleadings can be made without leave or consent provided the amendment is made up to 14 days after the last date on which the List of Documents is due to be filed

and that the proposed amendment does not introduce an additional party or add a cause of action that is statute barred. There is no limit to the number of times a party may amend under this Rule as opposed to the current position when a party can only amend once. However, to avoid unwarranted amendments the party who objects can apply for an order to disallow the amendment. That party has the onus to persuade the court that the amendment should have been refused. Once a document is amended then the revised version must be filed in the relevant prescribed form. The first time a document is amended it will be headed “Revision 1’, the second time it is amended ‘Revision 2’ and so on. The requirements regarding striking through of text to show omission of existing text, underlining to show addition of text and preserving existing numbering remain.

SERVICE The Rules provide that documents lodged electronically can be served by downloading a true copy of the document from the Electronic System (electronic court management system) or by serving a true copy of the downloaded copy. Documents lodged physically can be also be served electronically provided they have been uploaded to the electronic system or by serving additional sealed copies provided by the Registry. Personal service is of course retained. The Rules now provide detail as to the method of personal service to be implemented depending on the type of person to be served.

NEW CIVIL COURT RULES

Service by mail is now described as ‘post service ‘. It is permitted provided the recipient is an individual, has an office at the address usually attended on weekdays, where the recipient consents to post service or has communicated by post on the subject matter of the proceedings. The requirements for post service to be properly proved include postage by express post and proof of posting and delivery by Australia Post. Importantly the Registrar no longer has the ability to serve documents by post on behalf of the parties which is the provided under the Magistrates Court (Civil) Rules 2013. Email service is available provided the parties consent to that method of service, have previously communicated by email on the subject matter of the proceeding or the recipient provides notice that documents may be served by email. Proof of email service requires the affidavit to be competed by the sender of the email,

exhibit documentary evidence proving that the email address is the requisite email and exhibit the email showing the date and time of sending. The existing methods of service are retained including solicitor service, agent service, agreed service, deemed service and original service. There are now service requirements for certain classes of documents. Originating processes and subpoenas must be served personally and enforcement proceedings are to be served by the sheriff unless the court grants leave otherwise. The requirements for what constitute a valid address for service have been amended. There is now no requirement for the physical address for service to be within 50 km of the GPO. The address for service can no longer include a reference to DX or FAX. A party must provide an email address if a party lodges documents via the electronic system or seeks access to the file from the electronic system.

Practitioners must file a notice of change of address for service if their email or telephone number changes. Further, if there is a change in the individual responsible solicitor in the law firm acting for a party then a Notice of Acting must be filed. There are now detailed requirements regarding proof of service. The affidavit of proof of service must be in a prescribed form, made by the person of their own knowledge and exhibit the relevant documents. The content of the affidavit will depend on the method of service. The rules in relation to service overseas and local service of foreign judgements are governed by Schedule 1. The rules have greatly expanded in that there are now 33 rules dealing with this topic. Topics relate to when process may be served overseas, mode of service, service in New Zealand and service under the Hague Convention. B

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April 2020 THE BULLETIN

DIALOGUE

A round-up of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 26 FEBRUARY 2020 Shadow Attorney-General resident Tim White and Dr Anna Finizio (Policy Lawyer) met with the Shadow Attorney-General, the Honourable Kyam Maher MLC. Matters discussed included the regulation of and work for the legal profession; the Society’s concern for the viability of the Fidelity Fund; the Society’s position that the legal services should not be included under the Labour Hire Licensing Bill; and the inequitable difference in compensation between the CTP Scheme and the Workers Compensation Scheme, for injured people.

4 MARCH 2020 Chief Magistrate

The experience of the Magistrates Court in major indictable matters; the costs scales to apply under the Uniform Civil Court Rules; and the Society’s push for the threshold for legal costs in CTP claims to be lowered to the $12,000 threshold that applies to other civil claims were amongst matters discussed by Tim White and Stephen Hodder with her Honour Judge Hribal, Chief Magistrate. 5, 6, 7 March 2020 Meetings of Law Society Presidents, Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA Tim White (as President and also

2020 VIRTUAL

as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held in Sydney. Key topics of discussion included the LCA’s consideration of whether to push for a Modern Award for Early Career Lawyers, varying views being expressed; the ongoing redraft of the Australian Solicitor’s Conduct Rules, some additional changes being agreed and shortened commentary now to be prepared); contingency fees, a resolution opposing contingency fees being narrowly passed after detailed debate; the establishment of a new Futures Committee; and a range of internal policies, governance and financial matters relating to the LCA. B

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34 THE BULLETIN April 2020

WELLBEING & SUPPORT

Shake it off – is confetti the answer to the modern lawyer’s problems? SARAH EL SAYED, SOLICITOR, SOLOMON HUMBLE COMMERCIAL LAWYERS

ith great success, The Law Society held the annual Forum event at the Adelaide Convention Centre on 13 and 14 February 2020. Each year the Forum provides a selection of over 30 topics over a 2 day period that encompass a range of topics to assist Members to meet their MCPD requirements. One of this year’s key speakers on wellbeing was Clarissa Rayward (more commonly known as “The Happy Lawyer”). Clarissa is a practising family lawyer in Brisbane as well as an author, podcast host and, as she likes to describe herself, “accidental wellness advocate”. Clarissa presented “Shake it off - is confetti the answer to the modern lawyer’s problems? The interactive seminar provided the audience with an outlet to share their experiences in the legal industry and reflect on the good, the bad, and the future of mental health in the legal profession.

Clarissa highlighted some of the most common pressures experienced in the legal profession on both a structural and individual level. These included perfectionism, pessimism, long hours, difficult content; and billing pressure. Colourful, bold and anything but grey, Clarissa shared with the audience why they should ditch the serious attitude of the legal profession and learn to “Marie Kondo” their way through the profession; her shorthand description of finding what sparks joy in their lives. This includes a complete review of our rituals and stereotypes, space and surrounds, and most importantly, ourselves. The question was raised whether confetti is the answer to the increasing levels of mental ill health and dissatisfaction in the legal profession? Clarissa concluded confetti itself is not the answer, but confetti in all that it represents - joy, celebration, colour and fun combined

Clarissa Rayward (left) with Sarah El Sayed, Zoe Lewis and Grant Feary

with a good dose of some Marie Kondo “joy sparking” is. We were left with the advice that it is time we really start asking whether the rituals, stereotypes and work cultures of the past truly serve us in 2020; and for the most part the consensus was that they do not. And so, change here we come confetti and all.

Michael Tidball appointed Law Council CEO

he Law Council of Australia has appointed Michael Tidball as its new Chief Executive Officer. Mr Tidball currently serves as the Chief Executive Officer of the Law Society of NSW, a position he has held for nearly 14 years. In announcing Mr Tidball’s appointment, Law Council of Australia President, Pauline Wright, said she was delighted to have secured a candidate of such high calibre to lead the Law Council into the next decade. “Having undertaken an extensive global recruitment for a new CEO, I am thrilled that we have secured the most experienced, serving legal association chief executive in the Southern Hemisphere,” Ms Wright said.

“In Michael, we have a CEO who is highly regarded internationally with the demonstrated ability to deliver organisational strategy, high-order people management and stakeholder engagement as well as intellectual leadership and strength.” “Throughout his career, including in his current role as the longest-serving CEO of the Law Society of NSW and, in recent years, as Secretary-General of LAWASIA, Michael has worked comprehensively within the Australian and Asian legal and political systems and is well-acquainted with the processes of legislative and parliamentary advocacy, negotiation and representation across the political spectrum.”

Mr Tidball will take up his new position at the Law Council of Australia on 1 July 2020. Mr Tidball said he was excited about stepping into the role of CEO at the Law Council and enhancing its strength and stature as Australia’s peak legal body. “I am looking forward to working closely and effectively with the elected leadership of the Law Council and with bar associations and law societies across the Australian Federation, and providing the Law Council with the strategic execution, stability and unity it requires to be the strongest, most effective organisation it can be, for the benefit of all Australian lawyers and the communities they serve,” Mr Tidball said. B April 2020 THE BULLETIN

OPINION

We need to look beyond the law to address domestic violence MICHAEL ESPOSITO, EDITOR

hile the whole world’s focus is on the COVID-19 public health crisis, we should not forget about another crisis that Australia has been grappling with for far longer but has never been able to contain. The domestic violence crisis shot back into the public consciousness earlier this year after the horrific murder of Hannah Clarke and her children Laianah, Aaliyah, and Trey by Hannah’s estranged partner. Invariably, the discussion turned to perceived failures in the criminal justice system and what reforms were needed to crack down on domestic violence. In particular, the effectiveness of intervention orders has been called into question. When people routinely breach them, are they worth the paper they are written on? Should immediate custodial penalties apply to those who violate orders? Of course, it’s a hugely complex issue and it would defy the principle of individualised justice to impose a one-sizefits-all penalty regime to cover breaches ranging from minor to serious. The view from a number of practitioners the Society have spoken to is that, in a large number of cases, violent behaviour does reduce after intervention orders are issued, but there will always be people who completely disregard them. They are not a magic shield. The Sunday Mail reported last month that from July to December year, the Magistrates Court upheld 1,119 intervention order breach charges, indicating an “escalating trend since 201516. This is in spite of the SA Government doubling penalties for intervention orders breaches in 2018 (the maximum penalty is $20,000 to four years’ jail). In addition to increasing penalties for intervention order breaches, the SA Government has introduced several initiatives in an effort to combat domestic violence: These have included: Introduction of a “strangulation” offence Research indicates that non-fatal strangulation is a red flag for further

36 THE BULLETIN April 2020

violence against women, including homicide. The Society understands that there have been a significant number of charges laid for this offence, but few convictions – partly due to victim withdrawing charges, a lack of evidence, or the charge of strangulation being converted to alternative charge. It’s too early to tell how effective this offence will be but it is hoped it can be an effective tool to allow law enforcement authorities to more effectively intervene in violent situations. Introduction of bodycam evidence Video obtained by policy bodycam can used as admissible evidence. This means that victims may not be required to give testimony in relation to matters where are police called out to domestic violence incidents. Introduction of a public disclosure scheme The public disclosure scheme, introduced in 2018, allows people to make inquiries as to whether their partner has a history of proven domestic violence and is considered a risk of offending again. A person who contacts the scheme can find out the following information about someone: • relevant convictions (eg ‘domestic violence offences’ and specific personal violence offences: murder, child abuse, sexual offences) • the date of relevant convictions • the relationship of the subject to the victim A particularly positive initiative, funded by the previous Government, has been the Abuse Prevention Program run by the Magistrates Court. Since the courts started the state-wide program in 2011, 930 men have completed a program aimed at changing their attitudes and behaviour towards their female partners. The partners or ex-partners of the men are eligible to receive support from the Women’s Safety Services at the same time the men are undergoing a program. Feedback the Society has received

form the courts suggest that men who have been involved in the program for return to court for progress reviews often tell the magistrate they appreciate the opportunity to improve their behaviour and relationships. While this is a good initiative, it is again one that is only triggered once a person has committed violent behaviour. A line has already been crossed, often repeatedly. We cannot just look to the justice system to keep vulnerable women safe. The problem with merely taking a crime and punishment approach is that it encourages an attitude that, if we introduce a new law or increase penalties, we have dealt with the problem, but in fact have done nothing to address the underlying causes of violence. Taking a preventative approach is much more difficult, more expensive, but ultimately far more effective than merely changing the law. That said, there is certainly scope to look out how the law can better respond. We know that Family Law System is chronically underfunded and disputes involving custody of children can take months or longer to be heard, often compounding the trauma of victims who have to confront their perpetrators in the courts. It’s also critical that there is adequate funding for support services like Women’s Domestic Violence Court Assistance Service, which helps women with issues such as applying for intervention orders getting out of lease arrangements. And the Magistrates Court’s Abuse Prevention Program would benefit from additional funding. But if our leaders are truly serious about eradicating the scourge of domestic violence, they need to invest in community and health-based solutions that are designed to change problematic attitudes towards women. We need more nonpunitive, reformative measures, not to replace law and order measures, but to complement them. B

HAVE YOUR SAY Tell us what you care about by writing an article for The Bulletin about an issue close to your heart

THE ARTICLE CAN BE: • An explanation of an important matter of law; • An opinion piece about a legal issue of interest; • A commentary on the state of the law; • A profile on a local legal practitioner or legal institution. If you want to have your say, contact the Editor, Michael Esposito, by 27 April, at: bulletin@lawsocietysa.asn.au The deadline to submit articles for this special edition is 26 May

LEGALSUPER

Boost your super ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

he law has been changed to clarify that salary sacrifice contributions cannot be used to meet Superannuation Guarantee contribution obligations. The Federal government has closed a loophole which had been used by some employers to reduce the amount of super they pay on behalf of their staff. The Federal Government’s Super Guarantee (SG) regime stipulates that employers must contribute a minimum of 9.5 per cent of eligible employee’s earnings (ordinary time earnings) to either a super fund or retirement savings account held in the name of the employee. However, under the loophole, in instances where staff were making voluntary salary sacrifice contributions to their super, some employers had been using this to reduce the SG amount they paid. Salary sacrifice contributions are where an employee agrees to ‘sacrifice’ a portion of their before tax salary and asks their employer to pay it into their super fund This loophole was closed as of 1 January this year (2020), when the Treasury Laws Amendment (2019 Tax Integrity and Other Measures No. 1) Act 2019 (Cth) came into effect, with one of the reforms contained in the Act making it clear that an individual’s salary sacrificed contributions cannot be used to reduce an employer’s SG obligations. Salary sacrifice contributions (also known as salary packaging) are a vitally important way for people to increase their superannuation balance as they save for retirement and this is a welcome step by the Federal Government as it provides protection for employees that their entitlements are not reduced when they choose to salary sacrifice.

salary sacrifice contributions to your super, not only are you saving for your future by increasing your account balance, you also take advantage of unique tax benefits afforded to superannuation. Firstly, concessional pre-tax salary sacrifice contributions are paid into your super account before your income tax has been deducted and are instead generally taxed at 15 per cent, instead of your marginal income tax rate, which can be as high as 45 per cent, plus Medicare Levy. Every dollar salary sacrificed into super reduces your overall taxable income amount, which may lead to tax savings at the end of each financial year. The full range of potential tax benefits and thresholds for 2019/20 is outlined in the following table. It is important to remember that a cap exists on how much can be contributed to your super each financial year. For 2019/20, irrespective of age or income, the total amount that can be contributed as a concessional contribution (e.g. your employer’s SG contributions plus your own voluntary salary sacrifice contributions) is $25,000. If you are not sure how much superannuation contributions your employer has paid into your super each year and how much that leaves for you to potentially make additional voluntary salary sacrifice contributions – without exceeding the combined total of $25,000 – your super fund will be able to assist with these calculations. Similarly, if you are part-way through a financial year and are yet to set up salary sacrifice, your super fund can assist with this and how to make additional one-off contributions to your super.

THE BENEFITS OF SALARY SACRIFICE

TAXABLE INCOME

INCOME TAX RATE*

CONCESSIONAL SUPER CONTRIBUTION TAX RATE

$0 - $18,200 $18,201 - $37,000 $37,001 - $90,000 $90,001 - $180,000 $180,001 - $250,000 $250,001 +

0% 19% 32.5% 37% 45% 45%

15% 15%** 15% 15% 15% 30%

Salary sacrifice involves an employee entering into an arrangement with their employer for a certain amount of their pre-tax salary to be deducted from their wages (in addition to the SG amount paid by employers) and paid into their super fund. It is a type of super contribution known as a voluntary concessional (or pretax) contribution. When you make concessional pre-tax

38 THE BULLETIN April 2020

NON-CONCESSIONAL CONTRIBUTIONS You can also choose to make additional non-concessional contributions to boost your superannuation savings. Such contributions are also known as “after tax” contributions and they do not receive a tax deduction on the way into your super account. However, there are other tax advantages, as the investment interest earnings within superannuation are taxed at a maximum rate of only 15 per cent, not your marginal tax rate. The current non-concessional “aftertax” contribution cap is $100,000 for each financial year. However, people under the age of 65 on 1 July in a financial year may be able to contribute in excess of the $100,000 cap up to an amount of $300,000 in a single financial year pursuant to the “bring-forward rule”. Please note that if your total super balance is over $1.6 million, no further non-concessional contributions can be made in any year. This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879. ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@ legalsuper.com.au. B

* These tax rates do not include any Medicare levy payable. ** If you earn $37,000 or less a year, you may be eligible to receive a low-income super tax offset (LISTO) payment of up to $500. This is usually paid directly to your super fund.

BOOKSHELF

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NYGH’S CONFLICT OF LAW IN AUSTRALIA

M Davis, A Bell, P Le Gay Brereton & M Douglas 10th ed LexisNexis 2020 HB $176.00

Abstract from LexisNexis Nygh’s Conflict of Laws in Australia, 10th Edition provides authoritative and comprehensive coverage of the three main areas of private international law: jurisdiction, choice of law and recognition and enforcement of foreign judgments and arbitral awards. The wideranging subject matter includes international

commercial dealings and other civil obligations, administration of estates and succession, international child abduction, adoption, proof of foreign law, and the recognition of samesex marriages. It covers the legislation and civil procedure rules of all Australian jurisdictions as well as important common law developments.

AUSTRALIAN TRADE MARK OPPOSITION LAW

A Sykes 2nd ed LexisNexis Butterworths 2019 PB $110.00

Abstract from LexisNexis Successfully navigating both applicable law and procedural requirements is essential to effective practice in trade mark opposition matters. This unique, time-saving text is designed to offer quickly accessible answers to procedural questions covering oppositions to registering and removing trade marks before the Australian Trade Marks Office (ATMO). It includes both the substantive law and procedure, with practical tips on preparation

of evidence, oral and written submissions and obtaining orders for costs. The author draws from the extensive body of decisions handed down by the ATMO to simplify the practitioner’s role in dealing with the governing law and common practice of the ATMO. It is an essential guide to trade mark opposition practice for legal practitioners …and is a highly relevant resource for students undertaking units on trade mark practice.

THE CONTRACT OF EMPLOYMENT

M Irving 2nd ed LexisNexis 2019 HB $285.00

Abstract from LexisNexis The Contract of Employment, 2nd edition offers Australian lawyers the most comprehensive, systematic and intellectually rigorous treatment of the contract of employment. With more Australian cases and less UK content, it focuses more on the law as it now stands rather than the historical development of the common

law. It explains general principles articulated in appellate courts, particularly the High Court. It provides more references to the statutory context of employment and places the discussion of doctrines within the ongoing academic debates about the nature, functions and operation of the employment contract.

April 2020 THE BULLETIN

TAX FILES

Taxing issues in succession planning BRIONY HUTCHENS, DW FOX TUCKER LAWYERS

hey say the only two certainties in life are death and taxes. While Australia no longer has death duties, there are still a number of tax issues or considerations that can arise when implementing a succession plan. As family dynamics change over time, so do to succession planning objectives and needs. It is increasingly common for people to be entering into their 2nd or even 3rd marriage or relationship, leading to competing interests between children of a former marriage and a new spouse, and for children to want to forge their own path, independent of the family dealings or other siblings. A detailed succession plan should take into consideration not only the disposal of assets on an individual’s death, but also the possibility of ownership or control of assets passing prior to death, and whether the existing ownership structures adequately accommodate the succession planning objectives. Some of the issues that need to be considered are: • Are there entities such as companies or trusts within the family structure that hold assets? • Is there a business carried on either by the individual or via an entity such as a company or trust? • In either of the above situations: ο How is control of the business or entity going to pass to the appropriate person or people? ο When is control going to pass? On death? Or sooner? ο Are mechanisms required to ensure that the interest of a party cannot be defeated or to protect against two or more parties acting in a way that is disadvantageous to the other or others, while not enabling one or more of the parties to unduly frustrate decision making processes? ο Will the passing of assets or control

40 THE BULLETIN April 2020

•

of those assets prior to death trigger a tax liability at that time or result in a future tax liability being inherited by the incoming party? Are relevant documents and procedures in place to protect against unintended passing of control of assets or entities in the event of unforeseen death or incapacity? Who is likely to have a claim on the deceased estate in the event of death? Are there former spouses, nonbiological children or other family members that may make a claim? Are there any loan accounts or other amounts owing between parties within the family group structure that need to be dealt with either on death or on an earlier passing of control? Do these loan accounts or unpaid amounts trigger any tax consequences now or in the future? If control of assets or entities is passed prior to death, is there an expectation on the part of the outgoing persons that the incoming persons will pay them out for the value of their interest in the assets or entities and, if so, how will this be funded and what will be the tax implications of this? Does the individual have a self managed superannuation fund or other superannuation interests and is there a binding death benefits notice in place? Does the nomination distribute the death benefits in the most tax effective manner? Are any of the beneficiaries minors, at risk of bankruptcy or relationship breakdown, or otherwise vulnerable such that it is not considered appropriate for them to gain control of the inheritance immediately? Does the ownership of any assets need to be restructured in order to achieve the succession planning objectives? While the strategy adopted in each case

will be different depending on the family dynamics and the objectives of each of the parties involved, there are a number of tools that are commonly used in these situations to navigate through the issues. These include: • Granting powers of attorney to ensure that appropriate person or persons have the right to exercise the powers of the individual, including rights attached to any shares in a company (whether conducting the business in its own right or as trustee of a trust), during any period of incapacity. Consideration should be given to the powers granted to the attorney to protect against an attorney subsequently revoking or changing a binding death benefit nomination of the grantor. • Ensuring the provisions of each person’s Will have been updated to properly reflect and accommodate that person’s wishes with respect to their assets and interests in other entities. This includes ensuring that appropriate persons are appointed as executor, given that this person or persons will have control over the estate assets during administration of the estate. Inappropriate dealings with the assets by the executor could not only defeat the succession planning objectives of the deceased, but may also trigger unintended tax consequences. • Where assets are owned by a company, using a Shareholders Agreement or Company Constitution to customise the rules relevant to the conduct of the company to suit the specific needs and objectives of the parties. These are useful both where the company owns assets in its own right, and where it does so as trustee of a trust. Issues that are commonly addressed in these agreements include: ο The right to appoint and remove directors.

TAX FILES

•

ο Who can make decisions and what percentage of votes are required to pass a resolution. ο Whether any shareholder or director will have a casting vote or right of veto in respect of any decisions. ο Rules around the issue of new shares and prohibitions against diluting the shareholding of any shareholders. ο Exit strategies and rules and procedures that must be followed if any party wishes to dispose of all or part of their interest or in the event of certain events such as death, incapacity or retirement. ο Policies as to declaration and payment of dividends. ο Rules around borrowings to be undertaken by the company and/or contribution of capital. ο Dispute resolution procedures. Granting of call options to secure the right of another party to acquire ownership interests in an entity in the event of certain events such as incapacity or death of the existing owner. While the grant of a call

•

option is unlikely to trigger any tax implications, the exercise of the call option will, and therefore this needs to be taken into account as part of the broader succession plan. Where assets are held in a discretionary trust, inserting into the trust deed distributor provisions whereby the income and capital of the trust is notionally divided into portions and a nominated person has the ability to direct the trustee as to how a particular portion is to be distributed. Care must be taken to ensure that this does not trigger any tax consequences. Use of binding death benefits nominations to enable superannuation to be paid in a tax effective manner and directly to desired beneficiaries thereby protecting it from any potential claims against the estate. Use of testamentary trusts to protect the inheritance of minors or otherwise vulnerable beneficiaries. The structure of the testamentary trusts should be carefully considered to ensure that it is appropriate and provides the desired protection. For example, where a

testamentary trust is used to protect an inheritance against bankruptcy or a relationship breakdown, careful consideration needs to be given to the role of trustee and appointor of the testamentary trust to ensure that the vulnerable beneficiary is not deemed to control the trust, thereby limiting the asset protection benefits afforded. • Where current ownership structures to do not adequately accommodate succession planning objectives, use of various tax concessions including the small business CGT concessions and the small business restructure roll-over to enable ownership to be restructured with minimal tax implications. It is strongly recommended that advisors urge clients to put in place a properly considered succession plan, and review and update it regularly to take into account changing circumstances. By doing so, advisors and their clients can pro-actively manage any tax implications arising from the transition of assets. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

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FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT CHILDREN – CHILD ABDUCTION – MOTHER REPUDIATED AGREEMENT FOR FAMILY’S TEMPORARY STAY IN AUSTRALIA

n Handbury & State Central Authority and Anor [2020] FamCAFC 5 (21 January, 2020) Full Court (Alstergren CJ, Strickland and Williams JJ) dismissed the mother’s appeal of Bennett J’s order sought by the State Central Authority (SCA) that the parties’ six year old child be returned from Melbourne pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to the United Kingdom, being the child’s place of habitual residence, accompanied by the father. The mother was born in Australia but began living with the father in the UK in 2005. Their child was born there in 2013. When the mother was offered temporary work in Australia the family came here in 2017. Bennett J found that the child was a habitual resident of the UK; that the parties had agreed to live temporarily here for two years; and that the mother repudiated that agreement in 2018 when telling the father that she did not want to return to the UK with the child. The Full Court ([47]-[48]) adopted the following statement of principle by the UK Supreme Court as applying to the present case: “When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. … It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary

42 THE BULLETIN April 2020

and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a … unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful.”

CHILDREN – INTERIM ORDER THAT FATHER SPEND NO TIME WITH CHILD SET ASIDE ON APPEAL In Lim & Zong [2020] FamCAFC 20 (31 January, 2020) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the father’s appeal against Judge Tonkin’s interim order that the father spend no time and not communicate with the child (an order not sought either by the mother or the ICL) and that he consult a clinical psychologist for preparation of a report as to “whether there was a risk to the mother and child being exposed to further family violence by the father” ([3]). The mother alleged violence by the father which he denied, saying that the mother had historically alleged violence to disrupt his relationship with the child. A report from a family consultant who accepted the mother’s allegations opined that the father was likely to continue to perpetrate family violence towards the mother ([31]). The father complained that he had not had an opportunity to crossexamine the report writer.

After (at [33] and [50]) citing Salah [2016] FamCA 100 (a judge at an interim hearing must for the purpose of s 60CG consider “the risk of family violence”) and SS & AH [2010] FamCAFC 13 (“findings made at an interim hearing should be couched with great circumspection”), Kent J said ([52]-[53]): “ … [H]ere the inescapable conclusion is that the primary judge’s decision rested upon … concluded findings of fact … So much is clear from the … order for no time or communication despite … not being sought by either parent or, importantly, by the ICL … ( … ) [T]he … judge was in error in failing to … articulate to the parties … the father in particular, and afford him the opportunity to be heard on, the prospect of … an interim order for no time or communication. Moreover, review of the transcript does not reveal the … judge having foreshadowed to the father, or calling for his submissions upon, questions about his attendance upon a clinical psychologist for the purpose of further reports. Importantly, in the manner in which those orders are framed, the determinations made by the … judge about family violence were to be taken as a given by the … psychologist … [T]he … orders speak of ‘further’ family violence being perpetrated by the father and the orders make provision for the expert to be provided with the … judge’s reasons for judgment and the family reports, all of which express … unequivocal conclusions about the disputed issues … concerning family violence.”

FAMILY LAW CASE NOTES

PROPERTY – WIFE ENFORCES MONEY ORDERS AGAINST BANKRUPT SPOUSE VIA A SPLITTING ORDER In Wilkinson & Kemp [2020] FCCA 69 (16 January, 2020) Judge B Smith heard the wife’s enforcement application in respect of $47,912 owed to her under a property order and a costs order made in 2015. The husband declared himself bankrupt before the time for payment; and after being discharged from bankruptcy in August 2018 he declared bankruptcy again before the enforcement hearing in January 2019. The wife sought a variation of the order via a superannuation split in her favour for the amount outstanding. She relied on an email from the husband stating that he had moved assets offshore ([69]). Noting ([40]) that the wife’s application which concerned unvested property (superannuation) did not affect the position of the Official Trustee, the Court ([46]) cited Molier & Van Wyk [1980] FamCA 85 which held that a court exercising jurisdiction under the Act has power to amend its orders “to remedy a lacuna or gap … to give effect to the … orders” by means of a “machinery provision … without affecting the substantive rights of the parties”. The Court concluded ([75]-[77]): “The intention of the original orders was that the wife should receive a certain percentage of the total pool including superannuation. The orders made were ineffective because the husband had unilaterally removed the … majority of the non-superannuation assets from Australia prior to the primary hearing and then voluntarily entered bankruptcy.

If no order is made the wife will suffer a substantial injustice. I am satisfied that it is both just and equitable and also necessary to make a superannuation splitting order by way of a machinery provision amendment. To ensure that there is no interference in the substantive rights of the parties the superannuation sums must be, as the wife seeks, in the sums originally ordered, and taking effect as at the date for payment of the original orders … to give effect to the substance and intention of the primary order.”

CHILDREN – MOTHER REFUSED LEAVE TO WITHDRAW HER NOTICE OF DISCONTINUANCE In Olofsson [2019] FCCA 3467 (20 December, 2019) the 39 year old parties separated in 2015 when their daughter and son of 10 and 5 began living with the father. Consent orders to that effect were made in 2016. The children were to spend alternating weekends with the mother but their relationship broke down and in 2017 and 2018 both children were seeing a psychologist (the daughter’s psychologist suggesting that her time with the mother cease; the mother, on the other hand, having a different perspective on why their relationship broke down) ([2]). In May, 2018 the mother filed a Contravention Application and in November, 2018 consent orders were made for the mother’s time to be supervised. One supervised contact visit occurred ([3]). In February, 2019 the mother applied for variation of the original consent order so that the children live with her. The father in his Response sought an order for

psychiatric assessment and drug testing of the mother. In May, 2019, before a child inclusive conference could be held, the mother filed a Notice of Discontinuance of both of her applications. In August, 2019 she sought leave to withdraw her discontinuance. In doing so, she contended that the Court should revisit the findings of Laramie & Caul [2018] FCCA 1371 on the ground that the principle of finality of proceedings set out in that case – being a financial case – should not apply in parenting cases as such an approach would fetter the Court’s broad discretion to make an order that is in the best interests of children. In refusing the leave sought, Judge Altobelli said (from [31]): “ … [T]here must be doubts about the applicability of the finality principle discussed [by the Federal Court of Australia] in Chen [Chen v Monash University [2016] FCAFC 66] in a parenting proceeding, which is so fundamentally different in nature from, for example, administrative law proceedings or, indeed, civil litigation generally. [32] Against this, however, must be the recognition that the finality principle has been applied by the High Court in a family law appellate context [citing DJL v The Central Authority [2000] HCA 17] ( … ) [52] The Court believes that as a matter of judicial comity it should follow the decision of Judge Jarrett in Laramie & Caul. Whilst the Court has some reservations about the decision, it is not plainly wrong.” B April 2020 THE BULLETIN

FAMILY COURT

New approach to resolve family law property disputes will save time and money through the Federal Circuit Court’s “PPP500”

he Federal Circuit Court of Australia has introduced a new process to manage family law property disputes for cases where the value of the net property pool is under $500,000. The new process, known as the Priority Property Pool 500 (PPP500), starts on 1 March, 2020 and will operate for two years as a pilot program in Adelaide, Brisbane, Melbourne and Parramatta. It is well known that litigation in the courts can be very costly and timeconsuming and can lead to long-term acrimony between the parties. Many people, particularly those who have been victims of family violence, are also very reluctant to engage in court action due to the cost and the ongoing conflict with the perpetrator. The concept of a “small claims” process in the courts was identified through work conducted by Women’s Legal Services Victoria. Through that research, it was identified that; “Women are most at risk of economic hardship when relationships end. However, where the asset pool is small or consists entirely of superannuation or debt, many women simply walk away from seeking their share of property. Women who have experienced family violence are also disadvantaged by the family law system. In particular, court processes and rules can be used by perpetrators of violence to continue to control, financially damage or abuse a victim1.” The aim of the PPP500 is to provide a simplified way of resolving property disputes which will minimise risk and legal costs, and best preserve the parties’ assets. The head of the Family Court of Australia and Federal Circuit Court of Australia, the Hon Will Alstergren said that this pilot is one of many initiatives

44 THE BULLETIN April 2020

that the Courts have implemented to improve access to justice. “The Courts have worked hard to improve the family law system by introducing different ways to resolve family law disputes, allowing people to resolve their dispute quickly and sensibly so that they can move on with their lives in a positive way. “This pilot has been developed for parties who are particularly vulnerable and are reluctant to engage with the court system by making the process easier to navigate, reducing costs and importantly, minimising acrimony between parties. “The Courts acknowledge the work that has been achieved by the Women’s Legal Services in this area and we look forward to working collaboratively with them and the state-based legal aid bodies, law societies and Bar associations to help families in need,” Chief Justice Alstergren said. This project is funded through the Commonwealth government’s Womens Economic Security package which is designed to improve the responsiveness of the family courts to family violence. The pilot program will be independently evaluated by the Australian Institute of Family Studies (AIFS). The PPP500 program involves the following features: a. Intensive monitoring of compliance with orders for production of documents and valuations; b. Reduced delays in getting financial cases through the alternative dispute resolution process; c. Expanded opportunities for parties to discuss and take ownership of

their dispute resolution planning at any early stage; d. Opportunities for settlement at an early stage; e. Improved dispute resolution outcomes through close involvement in the preparation and case management of the case before ADR takes place; f. Where possible, unnecessary court appearances are eliminated and the number of Court appearances reduced; and g. Referral to appropriate services is made proactively. More information on the pilot program is available from: http://www.federalcircuitcourt. gov.au/wps/wcm/connect/fccweb/ rules-and-legislation/practicedirections/2020/pd22020. B Endnotes 1 Women’s Legal Services Victoria (2016) “Small Claims, Big Battles”

GAZING IN THE GAZETTE

3 FEB 2020 – 2 MAR 2020 ACTS PROCLAIMED Statutes Amendment (SACAT) Act 2019 (No 14 of 2019) come into operation on 4 May 2020. Commencement: 4 May 2020 Gazetted: 27 February 2020, Gazette No. 15 of 2020

ACTS ASSENTED TO Nil

APPOINTMENTS Parole Board of South Australia Member: Second Deputy Presiding Member: from 13 February 2020 until 17 December 2022 Nicholas John Floreani Gazetted: 13 February 2020, Gazette No. 13 of 2020 Judge of the Supreme Court of South Australia on an auxiliary basis,

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

for a period commencing on 9 March 2020 and expiring on 6 April 2020 Cathryn Faye McMillan Gazetted: 13 February 2020, Gazette No. 13 of 2020 Cross-Border Magistrates for a term of five years commencing on 20 February 2020 and expiring on 19 February 2025 Meredith Clare Day Huntingford Elizabeth Jane Morris Erin Louise O’Donnell for a term of five years commencing on 29 October 2020 and expiring on 28 October 2025 John William Birch David John Bamber Gregory Mark Borchers Gazetted: 20 February 2020, Gazette No. 14 of 2020 Judges of the Environment, Resources and Development Court of South Australia as effective from 20 February 2020 Brian Patrick Gilchrist

Stephen Kevin McEwen QC Sophie David SC Jane Louise Schammer Liesl Chapman SC Simon Patrick O’Sullivan QC Jo-Anne Lee Deuter Gazetted: 20 February 2020, Gazette No. 14 of 2020 Licensing Court of South Australia. District Court Judges on whom authority is conferred His Honour Chief Judge Michael Grieg Evans Her Honour Judge Geraldine Davison His Honour Judge Paul Francis Muscat His Honour Judge Paul Vincent Slattery Her Honour Judge Joanne Tracey His Honour Judge Michael Durrant Gazetted: 20 February 2020, Gazette No. 14 of 2020

RULES Nil

REGULATIONS PROMULGATED (3 FEBRUARY 2020 – 2 MARCH 2020) REGULATION NAME National Electricity (South Australia) (Civil Penalties) Variation Regulations 2020 National Gas (South Australia) (Civil Penalties) Variation Regulations 2020 Planning, Development and Infrastructure (Planning Agreements) Regulations 2020 Planning, Development and Infrastructure (General) (Annual Reports) Variation Regulations 2020 Local Government (General) (Prescribed Body) Variation Regulations 2020 Local Government Finance Authority (Prescribed Local Government Bodies) Variation Regulations 2020 Ombudsman Regulations 2020 Freedom of Information (General) (Prescribed Agency) Variation Regulations 2020 Independent Commissioner Against Corruption (Schedule 1 of Act) Variation Regulations 2020 Heavy Vehicle National Law (South Australia) (Amendment of Law) Regulations 2020 Heavy Vehicle National Law (South Australia) (Expiation Fees) Variation Regulations 2020 Architectural Practice (General) (SACAT) Variation Regulations 2020 Building Work Contractors (SACAT) Variation Regulations 2020 Controlled Substances (Pesticides) (SACAT) Variation Regulations 2020 Dangerous Substances (Dangerous Goods Transport) (SACAT) Variation Regulations 2020 Plumbers, Gas Fitters and Electricians (SACAT) Variation Regulations 2020 Second-hand Vehicle Dealers (SACAT) Variation Regulations 2020 Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2020

REG. NO. DATE GAZETTED 3 of 2020