Law Society Bulletin - Criminal Law - August 2019

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 41 – ISSUE 7 – AUGUST 2019

INSIDE

Master Peter Norman reflects on the Charles Manson trial & his involvement with the case The case for decriminilasing sex work Age of criminal responsibility & the doli incapax presumption

CRIMINAL LAW

This issue of The Law Society of South Australia: Bulletin is cited as (2019) 41 (7) LSB(SA). ISSN 1038-6777

CONTENTS CRIMINAL LAW

FEATURES & NEWS

8 Why the presumption of doli incapax should be the first consideration in Youth Court matters

By Brittany Armstrong

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10 Decriminalising sex work in SA

By Jessie MacGillivray & Anne Sibree

35 Family Arbitration: What it is & how to use it – By Judge Joe Harman

38 Risk Watch: Solicitors’ duties in witnessing documents

By Grant Feary

12 Sentencing reductions for early guilty pleas – By Nick Vadasz

REGULAR COLUMNS

40 Bookshelf

13 Report recommends changes to sentencing discount regime

By The Hon Vickie Chapman MP

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From the Editor

33 Wellbeing & Resilience: World Health Organisation recognises burnout

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President’s Message

42 Family Law Case Notes

20 A shorthand guide to extended supervision orders – By James Marcus

6 Dialogue

Council Q&A: Martin Frayne SC

24 High Court confirms priority for employees – By Lewis Gentry

43 Gazing in the Gazette

22 Why the major indictable reforms haven’t worked – By Dr Anna Finizio

18 From the Conduct Commissioner: Changes to the Legal Practitioners Act

By Greg May

26 Reflections on the Charles Manson case – By Master Peter Norman

31 Young Lawyers: Primer on selfmarketing

Executive Members President: A Nikolovski President-Elect: T White Vice President: R Sandford Vice President: M Frayne SC Treasurer: F Bell Immediate Past President: T Mellor Council Member: E Shaw Council Member: S Hooper Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich S Hooper T Vozzo V Gilliland F Bell M Mackie M Boyle M Smith E Shaw R Shaw J Stewart-Rattray J Marsh C Charles Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region)

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

Junior Members R Piccolo

Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au

Ex Officio Members The Hon V Chapman, Prof R Sarre, Prof M de Zwart, Prof T Leiman

Programme manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

32 Tax Files: A Duties Act to replace the Stamp Duties Act 1923

By Bernie Walrut

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw E Olsson P Wilkinson S Errington T Shueard D Sheldon M Young J Arena G Hagias 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.

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FROM THE EDITOR

Advocating for the Rule of Law in the court of public opinion MICHAEL ESPOSITO, EDITOR

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my Nikolovski in her President’s message notes that the Society’s position on criminal law matters can sometimes run counter to public opinion.

This is not surprising as most people understandably have scant tolerance for criminal behaviour, and it is instinctive to demand the harshest punishment possible for those who have committed heinous acts against innocent people.

Most lawyers of course are just as appalled by acts of crime as everyone else, but those who practice in the criminal jurisdiction know that those charged with crimes must be afforded a number of fundamental rights and protections for the system to work as fairly as possible, even it appears to those outside the system that a defendant is being given special treatment.

Justice Hollingworth, Principal Judge of the Criminal Division in the Supreme Court of Victoria, explained it this way in a recent episode of podcast “Gertie’s Law”.

“The way to really analyse the legal system or any system is to look at how would you want it to apply if it was you involved? If you or someone you loved or cared about were accused of a crime, would you want them to have the fairest possible trial or would you want a trial in which the state uses all its force to get a conviction as quickly and as efficiently as possible, even if it means that your loved one is, in fact, innocent?”

This neatly outlines why we need a system that compels a prosecution to prove a matter beyond reasonable doubt.

But arguably the most controversial aspect of the criminal justice system is not the bar that needs to be reached to secure a conviction, but how the court deals with defendants once convicted.

Judges themselves routinely say that sentencing is the hardest part of their job. Not only does it require a difficult calculation based on a number of complex variables, but the stakes are enormous.

A judge’s decision affects the liberty of a person and all the consequences of

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IN THIS ISSUE restricting that liberty, and their decision also has a significant impact on those who have been traumatised at the hands of a criminal.

Our sentencing regime must also take practical considerations into account.

We know our criminal justice system is overburdened and beset by delays. This is not in the interests of anyone, least of all victims. There have been several attempts to streamline the justice system to varying degrees of success. One of the more contentious initiatives has been the introduction of sentencing discounts for early guilty pleas, up to a maximum of 40%. Nick Vadasz, in his article for this edition, details how the current regime works, but notes that a recent review into the scheme could spell significant changes.

The Hon Brian Martin AO QC, in his report on sentencing discounts, recommended changes to the scheme which the Attorney General explains in this edition.

The Society, in its submission to the review, considered the current regime acceptable because it facilitated early guilty pleas which the Society argued was in the best interests of all parties.

But there’s no doubt that devising a regime that strikes the right balance is incredibly difficult. There are so many factors, often competing, to consider, such as the desirability of encouraging genuinely guilty parties to plead early (thus freeing up prosecutorial resources), the impact on victims of protracted trials, the practical realities of running a justice system, and of course, the community expectation that proportionate retribution is being delivered to criminals.

Whenever reforms to the criminal justice system are proposed, the legal profession is quick to strenuously defend the rule of law principles that underpin the system. Our continuing mission is to persuasively advocate for protecting these principles, especially when there are attempts to erode them. B

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MAJOR INDICTABLE REFORM Why reforms to the criminal justice system haven't worked.

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LANDMARK JUDGMENT What the High Court Amerind judgment means for employees of insolvent trust companies.

35

HOW TO USE FAMILY ARBITRATION Judge Joe Harman explains the process & benefits of family arbitration in resolving family disputes.

PRESIDENT’S MESSAGE

We must continue to fight for what’s right, even it it’s not popular AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SOUTH AUSTRALIA

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o far this year the Society has been very active with respect to advocacy in the criminal law space.

My thanks in particular go to Criminal Law Committee Co-Chair Craig Caldicott, Society Policy Lawyer Dr Anna Finizio and the Criminal Law Committee for their ongoing support and efforts which have been above and beyond and often in very short time frames.

At the time of writing we have provided detailed submissions on the following Bills/Legislation/Reviews: Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill This Bill, which has now ben passed, amends the Sentencing Act with respect to the availability of home detention orders for those convicted of unlawful sexual intercourse, indecent assault and production or dissemination of child exploitation material. The Bill imposes blanket, mandatory terms of imprisonment on people who come within these narrow categories, with no scope to consider individual circumstances. The Society submits that these amendments are contrary to the rehabilitation objectives of the Sentencing Act, the concept of individualised justice and erode judicial discretion. A number of practitioners remain seriously concerned about this legislation.

Child Exploitation and Encrypted Material Bill The Society was influential in reform to this Bill which originally sought to provide broad powers to authorities to access encrypted material in relation to any major indictable offence, despite purporting to deal specifically with child exploitation offences. The Bill infringes on the right to privacy as well as right to silence by compelling an accused to assist police in their gathering of evidence against him or her. The amendments, moved by SA Greens leader The Hon Mark Parnell MLC and supported by the Society, effectively

split the proposed law to create a Bill that would be confined to only child exploitation offences with regards to police powers to access encrypted devices, with the debate over police powers to access personal devices for other offences to be treated as a separate issue.

Review of Major Indictable Reform This is an issue of ongoing advocacy.

We have met with The Hon. Brian Martin AO QC on a number of occasions now, including jointly with the Bar Association representative Mr David Edwardson QC. Two key matters of concern conveyed to Mr Martin were the significant delays caused by the compilation of preliminary briefs and inadequate disclosure to defendant lawyers. Both the Society and the Bar highlighted the need for improvement to the current system, in particular, greater oversight by the Office of the Director of Public Prosecutions.

Inquiry into matters of public integrity in South Australia We have provided written and oral submissions advocating for sufficient safeguards to be included in the ICAC legislation so that those who go before the ICAC are afforded procedural fairness and the privilege against self-incrimination, and are able to have legal representation.

Evidence (Reporting on Sexual Offences) Amendment Bill 2019 These amendments seek to remove the prohibition on reporting on sexual offences, save and except for the prohibition of any publication which would reveal an alleged victim’s identity, or from which a victim’s identity might reasonably be inferred. The Society has warned that the risks of public disclosure of an accused’s identity are considerably heightened in matters where a person has been charged with a sexual offence.

The damage to an alleged sex offender’s reputation and livelihood if their identity was known but are not found guilty would likely be irreparable.

Other criminal matters the Society has made submissions to include: • Victims of Crime (Offender Service and Joinder) Amendment Bill • Criminal Law Consolidation (Assaults on Emergency Workers) Amendment Bill 2019 • SALRI Abortion Law Reference • Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 The Society sometimes take positions that are at odds with public sentiment with respect to criminal law reform. Reform is frequently introduced as a result of a high-profile case, or media pressure. As we know, this knee-jerk approach to legislating rarely makes for good law.

One of the Society’s objectives is to uphold the rule of law. One of the key principles of this is that a person shall remain innocent until proven guilty. This is why we continue to raise concerns around legislation that seeks to erode civil liberties and rights. Legislation that enables a person to be paraded through the media, with accusations and allegations made against them, so their careers, livelihoods and families are destroyed, should not be taken lightly (e.g. our concerns around the ICAC Amendment Bill and the Reporting on Sexual Offences Bill).

Most importantly, we have raised concerns against legislation introduced that seeks to erode judicial discretion (e.g. the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act) which no longer gives the Court full discretion to make decisions based on the facts before them.

The Society plays an important and respected role in ensuring that legislation respects the rule of law. As solicitors we have a duty to the court of law, not the court of public opinion. If legislation seeks to limit or erode individual rights and freedoms, these restrictions need to be proportionate and reasonable to the ultimate objective of the legislation. We will continue to consider legislation on this basis. B August 2019 THE BULLETIN

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DIALOGUE

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 21-22 JUNE 2019

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eetings 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 Law Council of Australia Amy Nikolovski (as President and also as Society appointed Director of the LCA) and Stephen Hodder, Chief Executive variously participated in the above quarterly meetings, which were held in Darwin. Key topics of discussion included Law Council financial matters, including capitation fees; progressing the Law Council’s Futures project; a review of the Law Council’s constitution, which is ongoing; development of a code of conduct for Directors; and a revision of the Australian Solicitors’ Conduct Rules, it being intended new, streamlined Rules will be further considered by the Law Council in September.

24 JUNE 2019 Crime and Public Integrity Policy Committee Inquiry Amy Nikolovski and Policy Lawyer, Dr Anna Finizio appeared for the Society before a Parliamentary Committee in relation to its Inquiry into matters of public integrity in South Australia to discuss the Society’s written submission to the Inquiry. The Society will now provide the Committee with further comment, including in relation to the power of the Independent Commission Against Corruption (ICAC) to make findings; and the ability to review a decision of the ICAC.

24 JUNE 2019 Meeting with CTP Insurance Regulator and Legal Profession Conduct Commissioner Amy Nikolovski and Anna Finizio were joined by the Co-Chairs of the Accident Compensation Committee, Guy Biddle and Paul Black at a meeting with the CTP Insurance Regulator and the Legal Profession Conduct Commissioner to discuss claims farming. The practice is becoming more prevalent in South

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Australia due to legislative reform in other jurisdictions such as NSW, which is driving perpetrators into South Australia.

27 JUNE 2019 Review of Major Indictable Reform Co-Chair of the Criminal Law Committee, Craig Caldicott joined Amy Nikolovski and Anna Finizio at a meeting with the Honourable Brian Martin AO QC in relation to his review for the Government of Major Indictable Reform.

Two key concerns were conveyed to Mr Martin being the significant delays caused by the compilation of preliminary briefs and inadequate disclosure to defendant lawyers.

4 JULY 2019 Joint Rules Advisory Committee Society representatives Amy Nikolovski, Alexander Lazarevich, Chair of the Civil Litigation Committee, and Philip Adams represented the Society at a meeting of the Joint Rules Advisory Committee.

The Electronic Court Management System (ECMS) is scheduled to commence in the civil jurisdiction in late February 2020 with uniform Rules to apply across the Courts. The Society’s submissions in relation to proposed Pre-Action Rules were discussed, such Rules being expected to come into force when the ECMS becomes operational in the civil jurisdiction.

10 JULY 2019 Small Business Commissioner’s Roundtable President-Elect, Tim White represented the Society at a Roundtable convened by the Small Business Commissioner in relation to the role of the Australian Financial Complaints Authority, its mandate and outcomes.

8 JULY 2019 Ms Emily Bourke MP Amy Nikolovski and Anna Finizio met with Emily Bourke MP, at Ms Bourke’s instigation, to discuss her proposed amendments to the Statutes Amendment (Decriminalisation of Sex Work) Bill 2019.

11 JULY 2019 The Honourable Tammy Franks MLC The Statutes Amendment (Decriminalisation of Sex Work) Bill 2019 and the SA Law Reform Institute’s reference in relation to abortion law were raised by the Honourable Tammy Franks MLC at a meeting with Amy Nikolovski and Anna Finizio, held at Ms Franks' instigation.

11 JULY 2019 His Honour Chief Judge Evans Matters raised by Amy Nikolovski and Stephen Hodder, Chief Executive at a meeting with the Chief Judge included bullying, discrimination and harassment, drawing on the results of the Society’s survey; and major indictable matters. B

NOTICE TO MEMBERS ANNUAL GENERAL MEETING Law Society Members are advised that the Annual General Meeting of the Society will be held at the Law Society, Level 10, 178 North Terrace, Adelaide on Monday, 28 October 2019 at 5.15pm CDT Information about the AGM, nominating for positions on the Council and any required election/s will be forwarded to Members in due course.

Nominations for Office-bearers and designated positions on Council close on Thursday 5 September 2019 at 5.00pm.

Notice of any business to be brought forward at the Annual General Meeting must be delivered to the Chief Executive by Thursday 5 September 2019 at 5.00pm.

CRIMINAL LAW

Why the presumption of doli incapax should be the first consideration in Youth Court matters BRITTANY ARMSTRONG, SOLICITOR, SHAW & HENDERSON

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ver the last year, there has been extensive media coverage on the topic of raising the age of criminal responsibility in Australia. In November 2018, Federal Attorney-General Christian Porter and State colleagues signed off on a 12-month investigation into raising the age of criminal responsibility from 10 to as high as 16.

In January, 2019, the Law Council of Australia supported the Northern Territory Government’s move to raise the criminal age of responsibility to 12 years. More recently, in June 2019, the Law Council published a further media release titled “Commonwealth, states and territories must lift minimum age of criminal responsibility to 14 years, remove doli incapax”.

Although there is an increasing push towards raising the criminal age, this article focuses on the law as it presently stands in South Australia. In particular, I will be focusing on the presumption of doli incapax and its application in the Youth Court. As the presumption of doli incapax is enlivened in all matters involving children between the ages of 10 and 14, it has been suggested that if the criminal age of responsibility is raised to 12 years, the presumption will still remain until a child is 14 years old.

onus is on the prosecution to rebut the presumption of doli incapax. If the prosecution fails to adduce evidence capable of proving that the child actually knew what they were doing was seriously wrong (rather than merely mischievous or naughty), the child is incapable at law of committing the charged offence and must be acquitted.3 To rebut the presumption, the prosecution must prove beyond reasonable doubt that notwithstanding the child’s age, they were capable of forming the requisite mens rea in relation to the alleged offence.

BACKGROUND

The prosecution must prove beyond reasonable doubt that the child understood that their conduct was “seriously wrong” by normal adult standards.5 For example, in RP v The Queen, it was held;

In South Australia, the Young Offenders Act 1993 (“the Act”) identifies that “a person under the age of 10 years cannot commit an offence”.1 The presumption of doli incapax is a common law principle that is utilised in all Australian States and various other countries. It presumes that a child under the age of 14 years lacks the capacity to be criminally responsible for their actions.2 Unlike a criminal defence, the

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“The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.”4 Although a matter involving doli incapax may take some time, it is important that the prosecution is put to proof. If there is a concern that the client will be on bail for too long, it is arguable that where the presumption of doli incapax is raised, perhaps the child does not need to be subject to a Bail Agreement.

THE “PRESUMPTION” AND ITS APPLICATION

“It is common enough for children to engage in forms of sexual play and to endeavour to keep it secret, since even very young children may appreciate that it is naughty to engage in such play. The appellant’s conduct went well beyond ordinary childish sexual experimentation, but this does not carry with

it a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from it being rude or naughty.”6 The prosecution cannot rely solely on evidence of the act itself to prove the child’s guilty knowledge (however horrifying or objectively wrong that act may be).7 The understanding of something being “seriously wrong” must be proved by other evidence.8 Such other evidence can include “the circumstances of the conduct” and/or “evidence of the development or disposition of the child.”9 In some cases, “evidence of the child’s progress at school and of the child’s home life will be required.”10 The Court in R v M (1977) 16 SASR 589 observed that evidence adduced by the prosecution to rebut the presumption must be relevant as at the time of the alleged offending.

If the prosecution relies on the evidence of a person who knows the child to understand the difference between right and wrong, their evidence should be considered in the context of similarities and differences between their experiences with the child and the child’s experiences with the law. This is particularly necessary in circumstances where the child needs to understand that the act was wrong in the sense that it attracted criminal responsibility.11 The prosecution can rely on a previous admission of guilt to rebut the presumption of doli incapax. This increases the importance of raising the presumption of doli incapax in every matter before the Youth Court involving a child aged between 10 and 14.

Element of the offence Doli incapax is an element of every offence involving a child between the

CRIMINAL LAW

age of 10 and 14. As with all charges, the prosecution can be stayed as an abuse of process if there is plainly no evidence available on an essential element of the offence. In RP v Ellis & Anor, the Supreme Court of New South Wales held that a Magistrate was in error in committing a matter for trial without first being satisfied that the prosecution had rebutted the presumption of doli incapax.12 Police Interview The prosecution may rely on statements made in a police interview to rebut the presumption of doli incapax.

In New South Wales at least, there is a specific reference to doli incapax in the Police ‘Code of Practice’: “Remember, when interviewing children between 10 and 14 you need to obtain evidence they knew what they were doing was wrong (as opposed to mischievous or naughty).”

There may be situations, for example, where an interviewing Officer has asked the child; “do you understand what you did was wrong?” A simple response of “yes” by the child may be relied on by the prosecution to rebut the presumption.

However, by simply responding “yes”, there is no evidence that the child knew the meaning of the word “wrong” or that they weren’t simply agreeing with the Officer as a person of authority.

Accordingly, it is arguable that the presumption is not rebutted in those circumstances.

The age of the child Previously, it had been considered that the closer a child was to the age of 14, the easier it would be to rebut the presumption. The quorum in RP v The Queen [2016] HCA 53 disagreed with this at [12], observing;

“The difficulty with these statements is that they are apt to suggest that children mature at a uniform rate. The only presumption which the law makes in the case of child defendants is that those aged under 14 are doli incapax. Rebutting that presumption directs attention to the intellectual and moral development of the particular child. Some 10-year-old children will possess the capacity to understand the serious wrongness of their acts while other children aged very nearly 14 years old will not.”

SUMMARY • Both the prosecution and defence should give consideration to the presumption of doli incapax in every matter involving a child between the age of 10 and 14.

• The onus is on the prosecution to rebut the presumption of doli incapax.

They must show that at the time that the alleged offence was committed, the child knew that the act was seriously wrong, not merely mischievous or naughty.13 • The presumption of doli incapax is an element of the charge and the prosecution case.14 Without evidence to the contrary, it is presumed that a child between 10 and 14 is doli incapax and therefore must be acquitted of the charge.15 • The prosecution cannot rely on the offences which are alleged to have been committed to rebut the presumption.

There “must be more than proof of the act charged.”16 • The evidence in rebuttal must be strong, clear and leave no room for ambiguity.17 Included in the Law Council of Australia’s June 2019 media release is the following statement: “The incarceration of children as young as 10 is a national

tragedy. There is something wrong when children can’t join Facebook until 13 but in Australia can be prosecuted for a criminal offence at 10.”18 Ultimately, I respectfully agree. Similarly, we should reflect on the legal age to vote and buy cigarettes or alcohol (18), or to obtain your driver’s licence and consent to sexual intercourse (16). Why do we consider children to be criminally responsible when we don’t afford them these rights for some 6-8 years later? The same child who is unable to vote may be detained for breaking a window.

Whilst in my view the criminal age of responsibility should be raised, there is some comfort in the fact that the presumption of doli incapax is there as a safeguard in the meantime. B

Endnotes 1 Section 5.

2 RP v The Queen [2016] HCA 53 at [4].

3 R v Johnson [2015] SASCFC 170; R v Gorrie (1918) 83 JP 136; JM (A Minor) v Runeckles (1984) 79 Cr App R 255.

4 Above n2 at [8].

5 Above n2 at [38].

6 Above n2 at [33].

7 C v DPP [1996] 1 AC 1, 33. As quoted in R v Johnson [2015] SASCFC 170 at [92].

8 Above n2 at [38].

9 Ibid.

10 Above n2 at [12].

11 R v Johnson [2015] SASCFC 170 at [98].

12 [2011] NSWSC 442.

13 RP v The Queen [2016] HCA 53 at [33]; R v M (1977) 16 SASR 589, 593.

14 RP v Ellis & Anor [2011] NSWSC 442 15 R v Johnson [2015] SASCFC 170 16 Ibid at [38] 17 B v R (1958) 44 Cr App R 1, 3 18 Law Council of Australia Media Release: Commonwealth, states and territories must lift minimum age of criminal responsibility to 14 years, remove doli incapax, 26 June 2019 <https://www.lawcouncil. asn.au/media/media-releases/commonwealthstates-and-territories-must-lift-minimum-age-ofcriminal-responsibility-to-14-years-remove-doliincapax>

August 2019 THE BULLETIN

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CRIMINAL LAW

DECRIMINALISING SEX WORK IN SOUTH AUSTRALIA JESSIE MACGILLIVRAY, PRINCIPAL, MAC AND CO LAWYERS AND ANNE SIBREE, BARRISTER, SELBY STREET CHAMBERS

THE CURRENT LAW ON SEXUAL SERVICE OFFENCES IN SOUTH AUSTRALIA Currently the law, on which there have been few higher Court appellate decisions since the 1980s, makes it an offence for a person to provide sexual services to a consenting adult in a variety of circumstances: for example, in the worker’s private premises or in what is colloquially known as a “brothel”.

What few South Australians may know is that a sex worker’s own home is capable of being regarded as a “brothel” for the purposes of s27 of the Summary Offences Act 1953 (SA) (‘SOA’),1 which has led to solo operators being charged and convicted of “managing a brothel” or “receiving money in a brothel” contrary to section 28 of the SOA. This issue was led as a Case Stated in the 1989 decision of McDonald v Samoilenko2 in which the Full Court found that a woman living alone in her own home would be “keeping and managing her own brothel” and could be charged with either managing a brothel, or receiving money in a brothel pursuant to section 28.3

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2017/18

2016

2015

2014

2012/13

2011/12

2010/11

2009/10

2008/09

Offences include 'manage brothel', 'receive money in a brothel, & 'solicit'

2007/08

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here is a Bill currently before the Parliament which has multi-partisan support to decriminalise sex work in South Australia. The Statutes Amendment (Decriminalisation of Sex Work) Bill 2018 (the Bill) was first introduced by the Honourable Tammy Franks MLC to the Legislative Council on 9 May, 2018.

Importantly, members from all sides of parliament support this Bill and, if passed, it will represent a significant step forward in human rights and protections in South Australia.

NUMBER OF SEX WORK OFFENCES CHARGED 200 180 160 140 120 100 80 60 40 20 0 2006/07

DECRIMINALISING SEX WORK IN SOUTH AUSTRALIA

South Australia, Parliamentary Debates, Legislative Council, 5 June 2019, 3622-3623 (Tammy Franks).

Select Committee, Parliament of South Australia, Statutes Amendment (Decriminalisation of Sex Work) Bill 2015 (2017) 16.

The 1986 decision of Lloyd v Hayes4 found that there was no defence of “honesty” to a charge of being unlawfully in possession of money paid in respect of prostitution. Prior J found that “the defence cannot be made out by one whose possession is obtained by conduct which cannot be described as legitimate, honourable or upright”.5 More recent decisions have concerned sentencing for sex work cases, and in particular the discretion not to record a conviction. A conviction has particular implications for “sole operator” defendants, not only due to the social stigma and its impact on future employment opportunities, but also by the operation of section 31 of the SOA which renders those convicted of operating a brothel in their home at risk of losing their residential accommodation.6 Few appellate decisions have addressed the circumstances in which it might be appropriate not to impose a conviction

for these offences. In Police v Bridges,7 the Police appealed a decision of a Magistrate imposing no conviction, no fine and no costs for an offence of receiving money in a brothel. Justice Bleby on appeal had regard to the respondent’s criminal record of convictions for minor offences, and considered that a recorded conviction and fine were appropriate in the circumstances.8 Some of the difficulties encountered by defendants who may wish to challenge their conviction or sentence in the higher courts include the fact that these offences are not generally considered sufficiently serious to attract a grant of legal aid, the social stigma involved in a published decision, and potential costs orders if unsuccessful on appeal.

POLICE SEARCHES Courts have seen a massive increase in sex work offences being brought by SAPOL in recent years (see table opposite).

CRIMINAL LAW

Under the current law, Police may enter premises they suspect on reasonable grounds to be a brothel if they hold a specific authority under section 32 of the SOA which deals with the “Power of police to enter suspected brothels”. This power gives Police the right to enter any dwelling or building suspected of being a brothel, even where they do not have any particular purpose for entering, such as to investigate an offence. This extraordinarily broad power will be repealed if the Bill is successful. It may however be replaced with a new source of power similar to the general search provision contained in section 67 of the SOA. Police have drawn a connection between organised crime groups and the sex industry and this seems to have formed the basis for the claimed need to retain special powers beyond those contained in section 67 of the SOA. Obtaining hard data from the police about the incidence of other offences connected with sex work (such as drug offending during raids or searches on suspected brothels) has been difficult. However, Police did say that they discovered two offences relating to controlled drugs in the course of investigating the 211 sex work-related offences in the 2017/2018 financial year.9

UNDERCOVER OPERATIONS It is known that Police use covert investigative tactics in order to charge sex workers. Police have not yet reported to Parliament how many times in the last 12 months they have used covert operations in policing of sex work. This method of obtaining evidence has been employed by Police since the 1970s and typically involves a police officer from the Licensing Enforcement Branch (LEB) posing as a client and orchestrating a discussion of the terms of the service, as well as the handing over of cash to a suspect. This conduct is what people would normally regard as “entrapment”, although it is clear Australian law does not recognise a defence of entrapment. Other examples of covert operations being utilised include in drug investigations and in child sex offence detection, both areas likely to result in serious major indictable charges. Unlike these offences, sex work is a victimless crime taking place in private

between consenting adults. Section 28 SOA offences are summary offences.

Using covert operations in this manner may require police to engage in otherwise prima facie illegal conduct such as procuring a person for prostitution10 and potentially breaching the Surveillance Devices Act 2016 (in covertly filming the exchange between suspect and officer). Evidence obtained illegally is still subject to the principles of Bunning v Cross,11 and may be subject to an application to exclude.

WHAT THE BILL DOES • Repeals every reference to consensual sex work in the criminal law – leaving in place provisions to prohibit commercial sexual slavery and under age sex work12 and introducing a new offence of providing a sexual service to a child.

• Removes those offences under Part 6 of the SOA detailed above. Removal and decriminalisation of these offences is at the very core of what this Bill aims to do.

• Amends the Return to Work Act 2014 (SA), giving sex workers the right to access the statutory compensation scheme.

• Amends the Equal Opportunity Act 1984 (SA) to ensure sex workers may not be discriminated against on the basis of their occupation or former occupation.

• Amends the Spent Conviction Act 2009 (SA) to cause a conviction for a sex offence to be automatically spent in the same way that a matter currently would be if the court ordered no conviction be recorded.

This last point is an important aspect of the Bill, as it provides some certainty for sex workers who are seeking to leave the industry who may have a criminal record for a sex offence. Clearly such a record will narrow the options for employment available to people wishing to pursue employment in a new field.

Decriminalisation is an important part of removing the stigma of sex work, but law reform on its own will not eradicate it.

The Bill passed the Upper House by a conscience vote on Thursday 20 June, 2019 with some amendments. The amendments are that: • A new offence be introduced to prohibit a child from being employed

in any part of a sex work business. This was intended to capture the scenario where a child is employed to do administrative work for example.

• Police be given special powers to enter a premises where commercial sexual services are provided in circumstances similar to those contained in section 67 of the Summary Offences Act (otherwise known as general search warrants) • There be a prohibition against advertising on signs where the public may see them or on leaflets • There be a review into the effect of the Bill and a report produced within 3 years of its commencement • The Minister be responsible for arranging assistance to those wishing to leave the industry The Bill now travels to the Lower House. However, when the Bill is introduced by the Honourable Vickie Chapman Attorney-General with Katrine Hildeyard, those amendments may be challenged, new amendments may be lodged and there will need to be a majority vote in favour of the Bill before it will pass that House and be returned to the Upper House for further debate. B Endnotes 1 This section describes a brothel as premises ‘to which persons resort for the purpose of prostitution’; or ‘occupied or used for the purposes of prostitution’.

2 Unreported, No 2095 of 1989, 4 April 1989 (White Matheson and Bollen JJ).

3 Ibid, at 7.

4 Unreported, Judgment Number 8849, 20 January 1986 (Prior J) 5 Ibid, p5.

6 Section 31 provides that “upon conviction of the tenant, lessee or occupier” of premises being used for a brothel, the landlord or lessor may require the person to assign the lease. See eg application in Ling & Ling (by Weston Raine & Horne) -v- Cameron & Qiao (R1997/00). Hearings 7 & 28 April 2000. Decision date 5 May 2000.

7 [1998] SASC 6582.

8 See also Playford v Police [2017] SASC 26 (Vanstone J) in which convictions were considered appropriate for charges including managing and keeping a brothel in circumstances where the defendant was not himself a sex worker and the conduct was “planned and executed incursions into crime for the purpose of creating illicit profits” (at [29]).

9 Hansard, Legislative Council 17 June 2019, page 665 10 Section 25A SOA 11 (1978) 141 CLR 54.

12 Division 12, Criminal Law Consolidation Act 1935 (SA).

August 2019 THE BULLETIN

11

CRIMINAL LAW

Sentencing reductions for early guilty pleas NICK VADASZ, VADASZ LAWYERS

I

n Harris v The Queen1 the court took the view that; “One way of manifesting contrition, repentance and remorse is, of course, by a plea of guilty and a full confession. It may be doubted how many pleas of guilty really proceed from such motives. Those which do not, and in particular, those which result merely from an acceptance of the inevitable, are not, in our view, entitled to any particular consideration.2”

At common law, the reduction for an early guilty plea was often subject to the caveat that it was of little weight where the evidence was overwhelming and a conviction was inevitable or where the plea was not accompanied by genuine contrition.

Another of the appeal grounds in Harris was that the sentencing Judge erred in not ordering whipping pursuant to the Criminal Consolation Act. At that time it had been commonplace to allow a reduction in sentence where the court also ordered whipping.

A broader approach to guilty plea sentence reduction was taken by the South Australian Court of Criminal Appeal in the Queen v Shannon3 which laid down a number of propositions as to how pleas of guilty should be treated in sentencing.

These propositions set the direction for the judicial approach to sentencing reductions in South Australia until the 2012 amendments to the Criminal Law (Sentencing) Act 1988. These have since been replaced with the Sentencing Act 2017.

In the second reading speech in July 2012 it was said that the main aim of the bill was: “To improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way.”

The ambit of this article is to outline the provisions of sections 36 to 44 of the Sentencing Act 2017 which regulate the stages at which reductions are available for guilty pleas and the upper limit of reductions.

Sections 37 and 38 deal, respectively,

12 THE BULLETIN August 2019

with “reductions of sentence for cooperation etc with law enforcement agency” and “reductions of sentences for cooperation with procedural requirements etc”. In both instances these sections apply, not only where there is a guilty plea, but also after a verdict of guilty following a trial. Section 37 leaves open the upper limit of the discount.

Section 38 allows a reduction of up to 10 per cent if the court is satisfied that “the defendant complied with all statutory or court ordered requirements relating to pre trial disclosure and procedures and has otherwise conducted a case in a cooperative and expeditious manner….”4 Section 39 applies specifically to the reduction of sentences following guilty pleas in the Magistrates Court and only to sentencing of summary and minor indictable offences finalised in that jurisdiction. It allows a reduction of up to 40 per cent if the guilty plea is entered “no more than four weeks after defendant’s first court appearance in relation to the relevant offence or offences”5.

After four weeks the reduction drops to a maximum of 30 per cent where it remains until four weeks before the trial date. Then it reduces further to a maximum of 10 percent. If the sentencing court is “satisfied that there is good reason to do so.” 6 Notwithstanding the above, the court may reduce a sentence by up to 30 per cent in the event of a guilty plea within four weeks before a trial where “the defendant satisfies the sentencing court that the defendant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of the defendant’s control.”7 Section 39(3) defines five circumstances in which the greater reduction might apply to a late plea. The first four of these may be referred to as time table, or listing issues and the fifth covers cases where prosecution was “unable to finalise negotiations with a defendant in relation to the plea during that period.”8 Section 39(4) defines a number of matters a court is required to consider when determining the percentage by which a sentence will be reduced.

The Hon Brian Martin QC has recommended changes to the sentencing discount regime

REDUCTIONS FOR GUILTY PLEAS IN INDICTABLE MATTERS Section 40 provides a decreasing ceiling of sentencing reductions for guilty pleas at what might be considered the usual stages in a criminal prosecution.

It allows a maximum 40 percent reduction for a guilty plea “not more than four weeks after the defendants first court appearance in relation to the relevant offence or offences”9. After four weeks this reduces to 30 percent up to the day of “the defendant’s committal appearance”.10 A “committal appearance” is defined in s109 and 110 of the Criminal Law Procedure Act 2017.

The reduction falls to up to 20 per cent where the plea is entered after the committal appearance and “immediately before the defendant is committed for trial for the offence or offences.”11 Between the committal and the arraignment, the reduction may be up to 15 percent.12 After the arraignment, and ending on the day of trial, “the sentencing court may, if satisfied there is good reason to do so, reduce the sentence… by up to 10 percent.”13 Section 40(4) also allows for a variation of the strict time limits in five specific circumstances. Section 40(4) is identical to 39(3) as discussed above.

Section 40(5) sets out the criteria for determining the percentage. In this regard a number of cases, dealing with the Criminal Law (Sentencing) Act, took the view that it is in the interests of the administration of justice to provide the maximum reduction.14 However, section

CRIMINAL LAW

40(5)15 allows a sentencing court to impose a lesser reduction where the “percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice.”16 In R v Davey17 the Court of Criminal Appeal upheld a reduction of approximately 8 per cent for a guilty plea to murder in circumstances where the plea might normally attract up to 30 per cent.

Section 41 prescribes the manner in which the sentencing court must: (a) first determine the sentence, (b) determine the maximum reduction and then (c) determine the appropriate percentage and, finally, (d) apply the percentage. In a number of instances under the Criminal Law (Sentencing) Act the Court of Criminal Appeal held that the sentencing remarks should state the percentage being applied.18 Section 41(2) applies where a court wishes to utilise section 26 of the

Sentencing Act to impose one penalty for multiple offences but different sentencing reductions apply to some of the offences.

Section 42 of the Sentencing Act allows for resentencing in a case of a failure to cooperate in accordance with an undertaking under section 37. Section 43 applies to resentencing for subsequent cooperation with a law enforcement agency.

The latter section applies to persons serving a sentence who may “with the permission of the court that imposed the relevant sentence, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person’s cooperation with the law enforcement agency in accordance with this section.”19 Review of sentencing discounts There has been a review of the original criminal law sentence reduction provisions.

A second review of the current legislation, commissioned by the Attorney General in September 2018, has, since drafting

this paper, been made public. Should the recommendations be accepted, and the consequent amendments passed, a number of the sentencing reduction provisions will change. B Endnotes 1 [1967] SASR 317 2 Ibid page 238 3 (1979) 21 SASR 442 4 38(1) 5 39(2)(a) 6 39(2)(d) 7 39(2)(c) 8 39(c)(b)V 9 40(3)(a) 10 40(3)(b) 11 40(3)(c) 12 43D 13 40(3) 14 These authorities also noted the provision to set a lesser reduction where the available percentage was disproportionate to the seriousness of the offending.

15 See also s40(5)(a) in relation to pleas in the Magistrates Court.

16 40(5)(a) 17 [2017] SASCFC 151 18 Cases 19 43(2)

Report recommends changes to sentencing discount scheme THE HON VICKIE CHAPMAN MP, ATTORNEY GENERAL OF SA

T

he Summary Procedure (Indictable Offences) Amendment Act 2016 commenced operation on 5 March 2018. A project of the former Attorney-General, it brought into effect reforms to the way major indictable matters are handled by the courts, and made a number of amendments to the Criminal Law (Sentencing) Act 1988 regarding the reduction of sentences.

The changes to the sentence reduction scheme aligned the sliding scale of reductions previously enacted in 2013 to the new stages of pre-trial proceedings introduced through the major indictable reform package.

Sentence discounting is an important aspect of our sentencing and criminal justice regime. During debate on the 2016 Bill I reflected as Shadow AttorneyGeneral that the then Liberal Opposition did not disagree with the change to sentence discounts, but I highlighted that reforms of such serious nature ought to have some time for detailed and thorough

consideration before becoming law.

After becoming Attorney-General, last year I requested a review of the new regime to be undertaken by the Hon Brian Martin QC. This followed concern about the way the scheme had been operating. The report makes a number of recommendations including to better reflect the seriousness of offending and align with community expectations, whilst still allowing for early guilty pleas to be taken into consideration.

Key recommendations included that for summary offences, the discounting percentages passed in 2017 should remain unchanged. For general indictable offences it is recommended that the current rates of reduction (on the sliding scale) be reduced to a maximum of 35%.

Finally, for more serious offences it is recommended that the maximum reduction rate be reduced to 25%. A list of offences falling into this category would require significant consideration however

I would be minded to ensure it covers murder, manslaughter, persistent sexual abuse of a child, serious sexual offences, causing death by dangerous driving and other offences at the more serious end of the scale.

In assessing the recommendations and potential implementation, policy consideration will need to be given to the categorisation of offences for the purpose of determining the appropriate sentence discount to be applied. This is work I am now undertaking.

At the same time, we have seen a desire in the wider community for serious criminal offenders to face the full extent of the law. Everyone deserves to feel safe in their own community. Meeting community expectations but also ensuring that every accused is treated fairly is a constant challenge for policy makers.

A 40% discount is a significant reduction in a sentence and must be reconsidered in light of the review. B August 2019 THE BULLETIN

13

XXX

MEMBERS ON THE MOVE

SAM RICHARDSON

NICHOLAS GRAHAM

C

ELIAS FARAH

VICTORIA TRELOAR

owell Clarke has announced that Sam Richardson has been promoted to Director.

Sam is a highly experienced property and agribusiness lawyer who joined Cowell Clarke as Special Counsel in 2016. Sam’s practice includes all areas of property.

He has acted on the sale and acquisition of numerous office, retail and industrial properties and regularly acts for developers on large scale residential and mixed use developments.

Cowell Clarke Director and head of Cowell Clarke’s Property team, Richard McNeil said: “Sam’s addition as a Director further enhances our market leading reputation within the Property sector and our ability to deliver outstanding service to our clients.”

Nicholas Graham has been promoted to Partner and is the firm’s first organic promotion of a Partner level solicitor.

Nic specialises in both front and back end construction transactions and dispute advisory and has been an integral part of servicing the firm’s property and construction clients.

Principal Partner, Elias Farah said: “Our first Partner promotion of Nicholas Graham is also an amazing milestone for the firm and I am incredibly proud of what Nic has done and will do for the firm in the future.” Robyn Seager has also been promoted to Senior Associate, and Jamie Aitken has been promoted to Associate, having each provided valuable contributions to the firm and its delivery of Property and Projects work.

Commercial & Legal are delighted to announce three new promotions within the firm, which includes the first internal promotion to Partner.

Clelands Lawyers Adelaide are proud to announce Family Law Specialist Victoria Treloar, has been appointed a director of the firm, effective 1 July 2019.

Clelands Lawyers are looking forward to working with Victoria in her new position.

Brown & Associates Commercial Lawyers are pleased to advise the profession of a change in ownership, from Andrew Brown (who founded the practice in 1998) to an incorporated legal practice trading as Brown & Associates Commercial Lawyers and owned and directed by long term partners David Dew and David Hopkins, with Andrew consulting on a full-time basis. All contact details remain the same and for Andrew, David and David it is “business as usual”.

WearingLaw is pleased to announce that as of 1 July 2019, the firm will be known as Wearing & Blairs, reflecting new partnership between Joseph Wearing and Donald Blairs. All staff emails will change to @wearingblairs.com.au but all other contact information remains the same.

Brittany recognised at 30 Under 30 awards

B

rittany Armstrong, a criminal lawyer at Shaw & Henderson, was recently awarded the criminal lawyer of the year at the Lawyers Weekly 30 Under 30 Awards, which recognises excellence in young lawyers across Australia.

Brittany was an Associate in the District Court before joining Shaw & Henderson as a criminal lawyer. Despite her youth and relative inexperience, she has demonstrated exceptional aptitude in complex trials and appeals, and has developed a keen interest in youth justice matters.

Brittany’s dedication to youth justice issues has led her to vigorously pursue

14 THE BULLETIN August 2019

better policies and laws for dealing with atrisk children. She recently developed a CPD session relating to doli incapax (which she writes about in this edition of The Bulletin).

Brittany has also devoted a large amount of time volunteering for the Ice Factor Foundation, a charity founded by Marie Shaw QC which helps at-risk, disengaged and disadvantaged teenagers develop essential life skills by introducing them to ice hockey.

Brittany is regarded as an exceptionally skilled, highly-attentive, and industrious criminal lawyer. The Society congratulates her on her award. B

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COUNCIL Q&A

Council Q&A: Martin Frayne SC In this editionâ&#x20AC;&#x2122;s Council Q&A, we get to know Law Society Vice-President Martin Frayne SC. Can you please give a brief overview of your career to date? fter completing my schooling I attended Adelaide University and completed an LLB1. I was an articled clerk at Wallmans2 and then subsequently a salaried solicitor and partner at that firm.3 I commenced as a barrister at the independent bar at Jeffcott Chambers4 and have practised in the area of civil and commercial litigation primarily in the area of torts and contract. Jeffcott Chambers was5 situated in Gouger Street, being the old Supreme Court Hotel, and for many years6 I occupied what was previously the front bar of the hotel.

I was appointed Senior Counsel in 2009 and still practice as Senior Counsel.

I have been a member of the Law Society since 1978 and a member of the SA Bar Association.7 I have served on various sub-committees of the Law Society over the years including the Civil Litigation Committee and the Litigation Assistance Fund.8 I am currently co-chair of the Advocacy Committee of the Law Society and have been a Law Society Council member since 2017 and a Vice President in 2019.

I am a member of various other professional organisations including; Resolution Institute, Society of Construction Law Australia, RICS Dispute Resolution Service, Australian Insurance Law Association and the Australian and New Zealand Sports Law Association.

I am a registered adjudicator under the Building and Construction Industry Security of Payments Act in South Australian and the equivalent legislation in Western Australia and Northern Territory and am actively involved in adjudications.

A

16 THE BULLETIN August 2019

I have served as a board member on the boards of the Basketball Association of South Australia Inc9 and am a life member, and Softball SA Inc10 and am a member of some community orientated associations.

What drew you to a career in the law?

I was drawn to a career in the law by the influence of a good school friend, who watched American crime programs11 on television and he thought he would be good at it,12 and he decided to study law. I was more influenced by the English television series.13 I had no better idea for a career and decided to follow his lead to law school.

What drew you to the independent bar?

At the outset of my career, under the influence of my principal, and then subsequently, I practised both as a solicitor and counsel for about 10 years. Ultimately I found that the pressures of acting as solicitor and counsel by day and counsel by night was unsustainable and I chose to follow a number of my former colleagues at Wallmans to Jeffcott Chambers at the independent bar.

Why did you nominate for Council?

I have been in the law for some time, and made many mistakes, and sometimes learned from them, so I thought I could offer some guidance to the Law Society Council based upon that experience, so that some of my errors would not be too readily repeated.

What have you got out of being a Council member?

I have met a diverse group of people, with a wide range of knowledge and experience, which has been brought to consider and resolve the matters and issues of the day.

How are your contributions to Law Society Council influenced by your experience as an independent barrister and silk?

My contributions to the Law Society Council are influenced by my background.

That can be of assistance where issues fall within my area of knowledge but because of the wide range of issues that come before Council, my limited experience can also be a disadvantage. I try to be sympathetic to all views in proffering my opinions about matters.

Do you think independent barristers benefit from the work of the Law Society to a similar degree that solicitors do?

The work of the Law Society, as I see it, is to represent all of its members, including those who practice at the independent bar, and also the legal profession in general.

The SA Bar Association also has a role for its members who practice solely as barristers. There is a degree of overlap in membership. The Law Society has more resources and a bigger organisational structure and different responsibilities which allows for greater diversity of views to be obtained about matters.

What do you see as the key challenges or opportunities for the legal profession?

One of the key challenges for the legal profession is to keep relevant and to maintain standards in a fast-changing environment.

COUNCIL Q&A

What do you think the Society should be advocating for to increase opportunities and improve the standing of the legal profession?

The standing of the legal profession depends upon the maintenance of adequate professional standards. That is an important role of the Law Society and can require collective wisdom to be harnessed to assure that is obtained. I am unsure as to whether the opportunities for the legal profession can be affected by the Law Society save for collective marketing in which it engages.

Most of the opportunities, as I see it, are external to the Law Society.

What advice would you give to practitioners who are interested in serving or improving the legal profession?

My experience is that by being actively involved with a professional body and professional committees, including the Law Society, that assists in building a network of professional relationships and a good network of relationships enhances the professional body, which benefits both the participant and the professional body. I assume others think similarly because the Law Society has a large number of willing volunteers.

What are some of your interests outside of the law?

Sport, sport and more sport. Spoiling my family. B Endnotes 1 In 1976.

2 To John Mangan in 1977.

3 Between 1978 and 1986.

4 In 1987.

5 Until March 2018.

6 From 1994 to 2018.

7 Since 1987.

8 1993 to 2018.

9 1981 to 1994.

10 2009 to 2014.

11 Perry Mason and Ironside.

12 Which ultimately he was.

13 Misleading Cases â&#x20AC;&#x201C; A.P. Herbert: Uncommon Law.

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FROM THE CONDUCT COMMISSIONER

Changes to the Legal Practitioners Act GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

T

he Legal Practitioners (Miscellaneous) Amendment Bill 2019 (Bill) is currently before Parliament. If it is passed in its current form, it will make a couple of changes to the Legal Practitioners Act (Act) that will be particularly relevant for the profession.

Section 72(2) of the Act currently says that I can, “with the approval of the AttorneyGeneral, fix, and require the payment of, fees in connection with the performance of functions of the Commissioner under this Act”. That is, I can say that a complainant must pay a fee to lodge a complaint, if the Attorney approves me doing so.

The Bill will amend section 72(2) so as to give me the power also to waive the payment of, or refund, the whole or part of any such fee that I charge.

I expect that, once the Bill is passed, the Attorney-General will then approve me fixing a relatively nominal fee, say $100, to lodge a complaint. I also expect to have some relatively straight-forward guidelines as to the circumstances in which I will waive or refund a fee. For example, if a complaint leads to a finding of misconduct on the part of a practitioner, then it is not unreasonable for the complainant to expect to receive a refund of the fee originally paid!

The other main changes relate to overcharging complaints, which are dealt with under section 77N of the Act. At the moment, I can only make a binding determination in relation to an overcharging complaint if the amount in dispute is no more than $10,000, and if I have first had the practitioner’s costs assessed in accordance with section 77N(4)(b). If the amount in dispute is more than $10,000, or if I don’t have the costs assessed, then I can only make a non-binding recommendation. I would normally have a costs assessment

18 THE BULLETIN August 2019

undertaken by an external costs expert, which of course comes at a cost to my office.

The Bill will amend section 77N in two ways. First, it will increase the amount referred to in section 77N(7), so that I can make a binding determination if the amount in dispute is no more than $50,000. Second, it will give me the ability to require a complainant first to pay the reasonable costs of obtaining a costs assessment. If the overcharging complaint is then upheld, I will be able to refund that amount to the complainant.

There are also some amendments to the Act that relate to extension of time applications in the Legal Practitioners Disciplinary Tribunal, and to the time within which a charge must be laid in that Tribunal. These changes won’t impact on many practitioners, so I won’t go into them here in any detail. There is also a new provision relating to a practitioner’s duty of confidentiality in the context of a Wills register that is maintained by the Law Society.

A change to our process If I receive a complaint and I decide to investigate it, then the practitioner complained of will normally be given details of the complaint and invited to make submissions about it.

However, it isn’t always the case that a complaint is published to the practitioner before I make a determination about it. If I close a complaint under section 77C of the Act before an investigation is commenced, then the practitioner might not have been advised of the complaint by then. Even in that situation though, under section 77M of the Act I have to give the practitioner written reasons for my determination.

So, at some stage in the process, a

practitioner who is complained about will find out about the complaint.

The Legal Practitioners Conduct Board previously asked firms to consider obtaining from their employees an authority that enabled the Board to disclose information about a complaint against a practitioner to the firm’s managing partner (or other nominated partner / officer). I have continued that practice – that is, if I was asked to do so, I would provide details of a complaint about a practitioner to a nominated partner or other officer of a firm at which the practitioner complained of was a partner or employee. Details of the complaint were given to the nominated partner or officer at the same time that they were given to the practitioner who had been complained of.

From 1 July 2019, I will no longer publish those details, or information in relation to any subsequent developments about the investigation of the complaint, to a firm’s nominated person. From now on I will only publish those details and other information to the practitioner who has been complained of. It will then be up to the practitioner complained of to provide relevant details or information to anyone else in the firm. Whether the practitioner complained of is required to do so is a matter for each firm to consider.

This change in approach is to ensure that I do not accidentally breach my obligations of confidentiality by publishing a complaint or other information to someone who is no longer authorised by the practitioner to receive it. For example, the practitioner complained of may have previously given an appropriate authority, but then have left his or her firm in circumstances where we do not become aware of that change in employment arrangements for some time. B

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CRIMINAL LAW

A SHORTHAND GUIDE TO EXTENDED SUPERVISION ORDERS JAMES MARCUS, BARRISTER, LEN KING CHAMBERS

A

recent development in the law of South Australia has been the introduction of a regime of post-sentence supervision. Whilst there is nothing new in the concept, as orders for detention of those unwilling or unable to control their sexual urges or the various restraining orders have been around for years, this is the first purpose made, broad based supervision system in South Australia.

The purpose of this article is to provide a basic outline of the scheme and its operation. Necessarily this explanation is tailored to fit the confines of this article, however I have endeavoured to provide a basic roadmap and the relevant authorities to assist in understanding the scheme. This also means consideration of the social utility and morality of such a scheme is a discussion for another day.

THE SCHEME The Scheme was introduced in 2016 via the Criminal Law (High Risk Offenders) Act 2015 (SA) “CL(HRO) Act”. A perusal of Austlii or the Supreme Court criminal listings on any given day will show its active use since its introduction.

The work horse of the scheme is s 7 setting out the criteria and process for the making of an Extended Supervision Order “ESO”.1 An ESO in turn is supported by two related orders, the Interim Supervision Order “ISO” and the Continuing Detention Order “CDO”. The scheme applies to adults2 (referred to in the Act as the respondent) who are high risk offenders within the meaning of the Act.

20 THE BULLETIN August 2019

A high risk offender is a person who has been sentenced to imprisonment for a serious sexual offence or a serious offence of violence, a terror suspect or a person already subject to an extended supervision order.3 The relevant offences are listed in the Act however some complexities arise with offences of violence.

A serious offence of violence is defined as a serious offence, that is one punishable by five or more years imprisonment, and which involves among other things the risk of serious harm or death.4 The use of the word risk greatly expands the definition, and whilst it has resulted in divergent judicial opinion at the single judge level,5 ultimately it does not appear to be a particularly high bar, as explained by Hinton J: …it may be accepted that Parliament did not intend to capture the fanciful, theoretical or remote risk but was concerned with conduct carrying with it a real or recognisable risk, albeit not a substantial risk. That is to say, a minimal risk is still a real risk.6 Lastly an ESO must be sought before the relevant expiry date, which is 12 months from the expiry of the respondent’s sentence or if already subject to an ESO, the expiry of that order.7

ASSESSMENT OF AN ESO APPLICATION Once the above jurisdictional facts are established, the court must obtain a report from at least one prescribed health professional,8 and often the Attorney-

General will supplement this material with reports from the Parole Board, the Department of Correctional Services and sentencing materials.

Should the respondent’s sentence expire prior to the resolution of the application, the court may make an ISO which will remain in place until the ESO application is determined.9 The criteria for an ISO appears to be whether the matters alleged in the materials supporting the application would, if proved, justify the making of an extended supervision order.10 Once the material is obtained, the Supreme Court may make an ESO if satisfied the respondent “poses an appreciable risk to the safety of the community if not supervised under the order”.11 In making such an assessment the paramount consideration is safety of the community,12 to be assessed alongside other listed criteria including rehabilitation, risk of re-offending, behaviour on parole, and any other matter that the Court thinks relevant.13 The Court has explained the principles underlying this assessment in the context of indefinite detention orders,14 and has identified the principles apply equally to an ESO.15 Some of the key principles in the exercise of the discretion to grant an order are: • The purpose of the Act is to protect the community from violent offenders.16 • The discretion to make an order is a

CRIMINAL LAW

balancing act between ensuring public safety and the liberty of the respondent who has completed their sentence and the protection of their liberty.17 • It is appropriate there be a proportionate relationship between the offending and the ESO.18 • The paramountcy of community safety means that relatively small amounts of risk may outweigh other considerations.19 • The onus of proof is at all times on the Attorney-General.20 In making the above assessment the Court will determine the appropriate terms of any ESO which are administered by the Parole Board.21 The terms are supervisory in nature and include very broad powers to direct the respondent where to live, to attend programs, to comply with directions, to abstain from drugs and alcohol and to take medication.

An ESO can be made for up to five years and a further ESO may be sought on its expiry.22 Theoretically supervision for life is open, given one is by definition a high risk offender whilst subject to an ESO.

BREACH PROCEEDINGS If an ESO or ISO is breached, the Parole Board may detain the respondent in custody.23 The board may then vary conditions of the ESO and release the person or refer them to the Supreme Court to consider a CDO.24 If so referred, the court must then make a determination if the person has breached the supervision order and if the person “poses an appreciable risk to the safety of the community if not detained in custody”. Again, the paramount consideration is the safety of the community.25 This process is subject to the

above principles and the court has also recognised the following: The power to make an order is discretionary and must be appropriate in all the circumstances.26 A detention order is not punitive, and the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.27 A continuing detention order may be made to secure the attendance at rehabilitation programs.28 A continuing detention order under an ISO cannot continue upon confirmation of the ISO as an ESO.29

CLOSING REMARKS It is hoped the above provides a basic outline of the scheme and the applicable principles as a starting point to understanding an ESO application.

However, in the author’s view it is also important in the context of these matters to remember the protective and therapeutic policies underlying the scheme, as surely an ESO should ultimately be aimed at removing the need for the ESO. With the above in mind, just as the law and the respondent’s right to challenge evidence are important, one should also not forget the practical side of assisting a person towards rehabilitation and the difficulties that brought them into contact with the criminal law in the first place.

Through some forward thinking about issues like suitable accommodation, transport, childcare, budgeting and identifying professional and nonprofessional support people one, may be able to alleviate the need for an ESO, or at least negotiate favourable terms, and critically avoid setting the respondent up to fail and thus justifying a further future ESO. B

Endnotes 1 CL(HRO) Act s 7 2 Note. Under s 6 the Act can apply to a youth who is of or above the age of 16 years and is a terror suspect as defined in s 5A. 3 CL(HRO) Act s 5 4 CL(HRO) Act s 5, Criminal Law Consolidation Act 1935 (SA) s 83D(1) 5 See Attorney-General (SA) v Wikaire (2017) 127 SASR 565, Attorney-General (SA) v Jeffery [2018] SASC 1, Attorney-General (SA) v Jeffery [2018] SASC 1, Attorney-General (SA) v Kember [2019] SASC 19, contra Attorney-General (SA) v Gates [2017] SASC 154 6 Attorney-General (SA) v Jeffery [2018] SASC 1, [17] (Hinton J) 7 CL(HRO) Act s 4 8 CL(HRO) Act s 7(3) 9 CL(HRO) Act s 9 10 Attorney-General v Grosser [2016] SASC 49, [25] (Stanley J) 11 CL(HRO) Act s 7(4) 12 CL(HRO) Act s 7(5) 13 CL(HRO) Act s 7(6) 14 See R v Schuster (2016) 125 SASR 388, [79]-[83] (The Court) 15 Attorney-General v Kimmins [2016] SASC 176, [38] (Stanley J), Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, [12], [14] (Hinton J) 16 Attorney-General v Grosser [2016] SASC 49, [5] (Stanley J) 17 Attorney-General v Grosser (No 3) [2017] SASC 89, [12] (Stanley J), R v Schuster (2016) 125 SASR 388, [80] (The Court) 18 Attorney-General (SA) v V, ZR [2019] SASC 1, [55] (Hughes J) 19 R v Schuster (2016) 125 SASR 388, [80] (The Court) 20 Attorney-General (SA) v Moyle (No 2) [2019] SASC 31, [28] (Hinton J) 21 CL(HRO) Act ss 10, 11 22 CL(HRO) Act s 12 23 CL(HRO) Act ss 15-17 24 CL(HRO) Act ss 18 25 CL(HRO) Act ss 18(2) 26 Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, [9]-[14] (Hinton J) 27 Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, [14] (Hinton J) 28 Attorney-General (SA) v Williams [2019] SASC 32 29 Attorney-General (SA) v V, ZR [2019] SASC 1, [44] (Hughes J)

August 2019 THE BULLETIN

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CRIMINAL LAW

Why the major indictable reforms haven’t worked DR ANNA FINIZIO, POLICY LAWYER, LAW SOCIETY OF SA

I

n March 2018, reforms commenced under the Summary Procedure (Indictable Offences) Amendment Act 2017 (“the Act”), which changed the way major indictable matters are managed in South Australia. The key changes include: • The removal of statutory imposed timeframes; matters will progress through the Court on a case-by-case basis.

• At the first hearing, a police prosecutor will inform the court about what evidence is required (“the preliminary brief ”) and how long it is estimated to take for that evidence to be produced to the Director of Public Prosecutions (DPP).

• At least four weeks were added to this period to enable the DPP to assess the preliminary brief and determine which charges (if any) should proceed (“the charge determination”).

• Until a charge determination is made, South Australia Police (SAPOL) will retain conduct of all major indictable matters. Before this occurs, all defence communication regarding the matter is with SAPOL’s Major Indictable Brief Unit (MIBU).

• If a charge determination is made, a second hearing will occur (“the committal appearance”), at which time the DPP will assume conduct of the matter.

The Major Indictable Reforms (MIR) comprised part of the former government’s “Transforming Criminal Justice” legacy and were intended to improve the management

22 THE BULLETIN August 2019

of major indictable matters, create efficiencies and decrease waiting times for hearings. However, 12 months later these efficiencies are yet to be realised and the system is at breaking point, with delays far exceeding those experienced under the former scheme.

Advocacy by stakeholders such as the Society has led to an Independent Review of the MIR by the Hon Brian Martin QC. This article explores some of the key issues of concern regarding the MIR and has been informed by the Society’s Criminal Law Committee.

MAJOR FAILINGS The removal of statutory imposed timeframes, the introduction of the preliminary brief and inadequate disclosure by SAPOL, are considered to underpin the failings of the MIR by key stakeholders such as the Law Society, the South Australian Bar Association (SABA) and Legal Services Commission (LSC).

The MIR has increased delays significantly in the pre-committal stage (i.e. before a matter is committed to the District Court either for sentence or trial). Subsequently, there has been a marked reduction in the number of matters reaching the District Court for trial. So much so, that criminal barristers are finding that there is inadequate work available to them in this jurisdiction.

The Society sought statistics from the Magistrates Court and District Court with respect to the MIR. Since the commencement of the reforms, 2,697

major indictable lodgements have been made in the Magistrates Court. Of these: • 185 have been committed for trial, • 123 have been committed for sentence, • 960 have been finalised in some other way such as dismissal, withdrawal, 9A plea, reduction to minor indictable charge etc.1 These figures are telling, given that prior to the MIR, the number of major indictable matters listed in the District Court for trial were approximately 800 per year. Similarly, the LSC have observed a stark reduction in case finalisations and District Court Lodgements with respect to legal aid matters.2 It is evident that matters are not progressing to the District Court as promptly as they did under the former system. So, where has the MIR gone wrong?

According to the Society’s Criminal Law Committee, the delays can be mostly attributed to the time taken by SAPOL in collating the preliminary brief. The brief can be moved back and forth between SAPOL and the DPP numerous times before it is finalised. This is due to the DPP declining to accept briefs and returning the matter to SAPOL to make further investigations. Furthermore, the Criminal Law Committee considers that SAPOL are being directed by MIBU to obtain ancillary information for the purpose of the preliminary brief, that is information that is not directly relevant or necessary. This view is shared by the Legal Services Commission, who point out

CRIMINAL LAW

that while section 106 of the Act requires the police to prepare a preliminary brief which must be considered “sufficient” by the DPP to make a charge determination before the committal process commences, there is no definition or independent criteria, to determine when a brief is sufficient, or any time limits imposed on the determination of sufficiency.3 In addition, there has been an increase in the number of matters dismissed where the prosecution has failed to provide disclosure, despite being granted a lengthy adjournment. However, such matters may not be dismissed permanently, as under the Act, they may be brought before the Court again sometime in the future. The Criminal Law Committee have noted a number of cases where this has occurred, including a rape matter.

Inadequate disclosure by SAPOL has been identified as a key concern by the Society, the SABA and the LSC. Defence lawyers are experiencing difficulties in obtaining relevant and vital information from SAPOL in a timely matter. This is having serious impact on the ability for defendants to plead guilty at an early stage and within the sentencing reduction scheme timelines.

MOVING FORWARD MIR key stakeholders, the Society, SABA and the LSC all agree that the DPP should have greater involvement and direction with respect to the gathering of evidence, and should direct SAPOL as to

how investigations should proceed from the initial charge.

One of the key flaws identified in the current system is the lack of oversight and accountability in the pre-committal stage by SAPOL/MIBU. Criminal Law Committee Chair, Craig Caldicott, takes the view that matters would progress more efficiently if the DPP were to take control of matters from the time of arrest, with the power to direct SAPOL to obtain further evidence in a timely fashion so matters can be advanced quickly and efficiently.

Defence lawyers are finding that there is little continuity in dealing with SAPOL/MIBU, as files are regularly reallocated, exacerbating difficulties in obtaining relevant information about a matter. SAPOL are not subject to the same disclosure obligations as the DPP, nor do they have the authority to negotiate regarding the charges.

Earlier involvement by the DPP would allow defendant lawyers to have a point of contact in the DPP, specifically, an allocated solicitor who has the conduct of the file.

This is the suggested first step in rectifying the delays caused by the MIR.

JUSTICE DELAYED, JUSTICE DENIED Extensive delays do not serve anyone in the criminal justice system, including victims. With adjournments of up to up to 18 months being granted in some matters after their first court hearing, it is clear that MIR is failing to achieve its proposed objectives.

As a result of the extensive delays, defendants are being remanded in custody for very long periods of time without charge. This is simply unacceptable and contrary to the presumption of innocence.

The right to be tried without undue delay in criminal proceedings is recognised under international law.4 The presumption against bail is further complicating major indictable matters. The LSC notes that Magistrates are becoming more willing to grant bail, particularly in some drug court matters, where the defendant’s time in remand can start to approach the length of any possible sentence.5 The Society together with the SABA, met with the Hon Brian Martin QC, to convey its concerns in relation the MIR, as part of Mr Martin’s Review. It was asserted that the deficiencies with the current system run much deeper than “teething issues” and require addressing.

The Society maintains a watching brief with respect to the MIR and awaits the report and recommendations following Mr Martin’s Review. B Endnotes 1 Statistics provided to the Society by the Chief Magistrate on 30 April 2019.

2 Letter from the Legal Services Commission to Mr Brian Martin AO QC re Major Indictable Reform Review, 5 May 2019.

3 Ibid.

4 See Articles 14(3)(c) and 9(3) of the International Covenant on Civil and Political Rights.

5 Letter from the Legal Services Commission to Mr Brian Martin AO QC re Major Indictable Reform Review, 5 May 2019.

August 2019 THE BULLETIN

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CASE NOTE

High Court Confirms Priority for Employees LEWIS GENTRY, BARRISTER, ANTHONY MASON CHAMBERS

O

n 19 June 2019, the High Court of Australia delivered the highly anticipated judgment in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia.1 The High Court confirmed that amounts owed to employees of insolvent trust companies are to be given priority over other creditors.

This is regarded by many as a landmark decision which has resolved ambiguity left by a string of conflicting authorities.

The implications flowing from the judgment are significant. Rather than employees of company trustees sharing in the leftover assets with the balance of creditors, they will be paid first. Insolvency practitioners have greater certainty as to how they are to distribute funds coming into their hands. In addition, the Commonwealth will be elevated above other creditors in recouping funds paid by it to employees pursuant to the Fair Entitlements Guarantee Scheme.2

PROCEDURAL HISTORY These proceedings concerned section 433 of the Corporations Act 2001 (Cth) which requires receivers of insolvent companies to pay employees as a priority over other creditors.

The primary judge in the Supreme Court of Victoria3 found that section 433 was not enlivened if the company employer operated as a trading trust. As a result, employees would not be prioritised, and would likely lose out by having to share in the assets with other creditors. This is so, even if the employee was not aware its employer happened to be a trustee.

The Court of Appeal of the Supreme Court of Victoria overturned the first instance decision.4 The timber supply company Carter Holt Harvey Woodproducts Australia Pty Ltd (Carter Holt Harvey), a creditor of Amerind, appealed to the High Court of Australia.

FACTS & BACKGROUND Amerind Pty Ltd (Amerind) was in the business of making and selling veneer panels and other decorative and architectural finishes. It carried on its

24 THE BULLETIN August 2019

business as the trustee of a trading trust known as the Panel Veneer Processes Trading Trust.

In March 2014 the director of Amerind appointed voluntary administrators to the business. Later that same day, the secured creditor appointed receivers and managers.

The receivers continued to trade the business for a month whilst seeking a purchaser of the business. The receivers then wound down the trading operations and realised a vast majority of the stock in trade. The receivers realised sufficient funds to pay out their appointing secured creditor in full, in addition to generating surplus proceeds of approximately $1.6 million.

These proceedings were, in essence, a dispute over those surplus proceeds. If section 433 applied and the employees were to be prioritised, the $1.6 million would go to the Commonwealth. This is because the Commonwealth had earlier paid out the employee claims and had the same right to the surplus as the employees would have had. On the other hand, if employees were not entitled to be prioritised here, the surplus proceeds would go to Carter Holt Harvey.

LEGAL ISSUES The dispute related to the “circulating” assets of Amerind, so termed because a company has authority to dispose of that pool of assets in the ordinary course of its business.5 Circulating assets include inventory or stock in trade as well as debts owed to the company by its customers.

For more than a century, employees of insolvent companies have been paid first, and before any other creditor, from this pool of assets.6 This priority recognises that employees can augment the value of this pool of assets for the benefit of all creditors.7 Section 433 of the Corporations Act 2001 (Cth) contains the employee priority.

It requires receivers to pay employees first from the property of the company subject to a circulating security interest, before applying any balance to the other non-employee creditors.

The immediate question for the High Court was whether section 433 applied to companies which operate as trading trusts, as distinct from companies operating in their own right without any trust structure.

Relevant to this is the right of a trustee to an indemnity out of the trust assets for liabilities incurred in the course of its duties. The indemnity empowers the trustee to apply trust assets directly to debts incurred in the course of the trustee’s duties. This is known as a trustee’s right of exoneration. It is this right of exoneration that the receivers in Amerind had exercised when selling the trust property. The right of exoneration is the gateway which allowed the receivers to deal with the trust property.

Without that right, the receivers will have had no ability to deal with the trust assets.

THE ARGUMENT On this basis, Carter Holt Harvey submitted that section 433 did not apply to a trustee company because: • The $1.6 million in surplus proceeds represents trust property; not “property of the company” within the meaning of section 433; and • section 433 is directed at circulating assets, and the trustee’s right of exoneration is not a circulating asset.8

THE RESULT The High Court disagreed with the submissions of Carter Holt Harvey and found that: • the interest of a corporate trustee as against trust assets falls within the meaning of ‘property of the company’ in s 433; and • it is sufficient that the assets themselves are circulating for the purpose of attracting the operation of s 433. It is not relevant or necessary to characterise the right of exoneration itself as circulating. That right is merely the gateway to the underlying asset.9 Prioritising employees of trustee companies was, to the Hight Court, obviously consistent with the intention of section 433. Kiefel CJ, Keane, and Edelman JJ observed:

CASE NOTE

“It would be perverse if the Corporations Act operated to deny employee creditors a particular priority over the holders of a circulating security interest solely for the reason that the company which employed them was, perhaps even unknown to the employees, trading as a trustee.”10 Importantly, the High Court found that proceeds realised in the course of a right of exoneration may be applied only in satisfaction of trust liabilities to which the right relates. This limitation will be relevant in circumstances where the company is trustee of multiple trusts or also carrying on business in its own right. In this respect, the High Court found that the decision of the Full Court of the Supreme Court of South Australia in Re Suco Gold Pty Ltd (in Liq) (1983) 33 SASR 99 was correct.

Whilst the appeal was centred on the operation of section 433 which applies to receivership alone, the judgment observes that the same reasoning ought to apply to liquidators who are also tasked with distributing the assets of company trustees.11

MOVING FORWARD This significant decision gives greater certainty to insolvency practitioners when dealing with trust assets. Notwithstanding this, practitioners ought to be vigilant about the following: Does the security agreement between the company trustee extend a security interest in trust property to the creditor, as distinct from property held only by the company in its own right?

And, significantly, was the company trading, incurring liabilities and holding assets solely as trustee? Or was it the case that some assets or liabilities were held or incurred in its own (non-trustee) capacity? Alternatively, was the company trustee of multiple trading trusts?12 If there is any ambiguity in relation to such matters, advice and possibly direction from the Court may still need to be obtained to ensure that the insolvency practitioner is properly protected. B

Endnotes 1 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia and Others [2019] HCA 20.

2 The Commonwealth provides financial assistance to cover certain unpaid employee entitlements to eligible employees who lose their job due to the insolvency of their employer.

3 Re Amerind Pty Ltd (In Liq) (2017) 320 FLR 118; 4 Re Amerind Pty Ltd; The Commonwealth v Byrnes and Hewitt (2018) 54 VR 230.

5 Personal Property Securities Act 2009 (Cth), section 340.

6 Preferential Payments in Bankruptcy Amendment Act 1897 (UK) (60 & 61 Vict c 19), s 2. See, in Victoria, Companies Act 1910 (Vic), s 208(3)(b).

7 Stein v Saywell (1969) 121 CLR 529 at 544.

8 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia and Others [2019] HCA 20 at [105].

9 This was the finding of the majority.

10 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia and Others [2019] HCA 20 at [58].

11 In the context of section 561, as opposed to s 433.

12 Gordon J raises the issue posed by multiple trusts at [163] and stated: ‘What will be appropriate will vary from case to case.’

CRIMINAL LAW

REFLECTIONS ON THE CHARLES MANSON CASE MASTER PETER NORMAN In 1975 Master Peter Norman of the District Court participated in a legal exchange program in California with the Attorney General’s Department including a period working with the prosecution team on the Charles Manson and Sirhan Sirhan (Robert Kennedy assassination) appeals. He was also posted for a few days with the team at the Los Angeles District Attorney which had prosecuted Charles Manson a few years before. This month marks the 50th Anniversary of the infamous crimes. The crimes will also be in the public eye due to the forthcoming Quentin Tarantino film “Once Upon a Time in Hollywood”. Master Norman reflects on the case.

M

y posting to the Attorney General’s Office in 1975 gave me the opportunity to see how the American justice system worked, to visit agencies such as the District Attorney and the City Attorney, to observe court proceedings and meet some of the judges, and to take on site visits to the Los Angeles County Gaol and the City Coroner.

I also accompanied the Los Angeles police on patrol, and visited a large private law firm, O’Melveny and Myers, whose senior partner at the time was later President Carter’s Secretary of State, Warren Christopher.

My host, Deputy Attorney General Russell Iungerich had represented the State of California in a number of cases in the US Supreme Court. He was one of the leading counsel in the Robert Kennedy assassination case and has always taken the view that Robert Kennedy’s murder was not so much a political crime, but rather that Sirhan had diminished responsibility due to having been kicked in the head by a horse at the Hollywood racetrack, where he had worked as a groom.

I had the opportunity to be involved in several interesting cases, including Sirhan’s appeal and the disbarment of Nixon lawyer and Watergate figure Donald Segretti, but the Manson case was certainly one of the most interesting.

26 THE BULLETIN August 2019

A mugshot of Charles Manson

Sharon Tate (1965) Photo by Tony Grylla

His crimes had thrown a pall of horror across the United States, abruptly ending the era of peace-and-love characterised by Woodstock and the summer of love.

He did not physically commit any of the crimes but was their mastermind and had a personal charisma which made his impact greater than that of most murderers. He was the person who in a sense brought the swinging sixties to an end and the case showed that the counter culture was far darker and more disturbing than people had previously thought.

But it is interesting for many other reasons. It involved a President who could have wrecked the trial, a Judge named Older and an Attorney General named Younger, a prosecutor who got sacked, a witness given a hamburger laced with LSD, a defence lawyer who had once invented a rocket fuel for the US Army and got committed to custody during the trial, and another who simply disappeared.

And it showed the difficulty in proving a case against Manson himself, who had devised and orchestrated crimes by his

CRIMINAL LAW

cohorts but who had carefully ensured that he was never directly connected with the events.

Being Hollywood, many celebrities were involved -- Dennis Wilson from the Beach Boys, record producer and Doris Day’s son Terry Melcher, actress Joanna Pettet, actor Steve McQueen, music producer Quincy Jones, and UK comedy writer and one time husband of Joanna Lumley, Jeremy Lloyd.

The case has fascinated the world ever since, and as the 50th anniversary approaches a new movie, Quentin Tarantino’s Once Upon A Time In Hollywood, is in production, with an ensemble cast including Leonardo di Caprio, Brad Pitt, Al Pacino, Bruce Dern and Dakota Fanning , and a 1960s hits soundtrack.

Margot Robbie is playing Sharon Tate and Adelaide actor Damon Herriman has been cast as Manson.

THE CRIMES The most well-known victim was pregnant Hollywood actress Sharon Tate, who was killed in her home in the LA foothills on the night of 8 August, 1969 with four others, celebrity hairdresser Jay Sebring, coffee heiress Abigail Folger, a friend Wojciech Frykowski, and Steven Parent, who had been visiting the caretaker and was just leaving.

Tate’s husband, film director Roman Polanski, who was out of the country at the time, was devastated.

The sole survivor was 19-year-old William Garretson, a caretaker living in a guesthouse on the grounds. He recalled a lot of strange things going on that night, with people running and someone rattling the doorknob before they were scared away by a barking dog. He knew nothing of the murders until the following day when police officers pointed a gun at him, arrested him and took him into custody.

However the following day he was released as there was no physical evidence to connect him with the crime.

Two nights later there were further murders. Leno and Rosemary La Bianca, a

supermarket executive and his wife, were found stabbed to death in their home across town. A killer had carved the word “WAR” on Leno La Bianca’s body. The words “Helter Skelter” were written in blood on the refrigerator.

LUCKY ESCAPES Several celebrities had lucky escapes.

Actress Joanna Pettet had been there at lunchtime. Jay Sebring had invited the actor Steve McQueen to the house on the night of the murders but McQueen had invited a girlfriend to come along and she suggested instead an intimate night at home. Quincy Jones had also been invited - he and McQueen had previewed the film Bullitt that afternoon. Quincy simply forgot about the invitation. And scriptwriter Jeremy Lloyd, who later went on to write the British TV comedy series Are You Being Served, revealed later that he had also been invited to the house

RESPONSE & POLICE INVESTIGATION The news of the murders had hit the city like an earthquake.

There was a terrible fear on the part of the Hollywood community that this ritualistic killing, had something to do with celebrity-ism. Many high profile Hollywood stars including Frank Sinatra left town, Tony Bennett moved inside to be safe, and Steve McQueen supposedly drove around with a gun in the front seat of the car. Two hundred guns were sold by one Beverly Hills store in two days and it took two weeks to get a locksmith.

One rumour was that the crime was drug related. It was a drug hit and on top of that it was Roman Polanski’s wife. It was conjecture that he quickly denied. She didn’t do drugs, drink or even smoke, he said.

The crime scene was contaminated over 100 police had trampled through the Tate house. A gun thrown away by the gang was missed: later it was found nearby by a 10-year-old boy.

Thinking the Tate murders were a consequence of a drug transaction, in spite of the obvious similarities with the La

Manson Transcript Respondent's Brief 1975

Bianca murders, the police believed that the second crime was merely a copycat incident and the two investigations were run quite separately.

The police did not know where to turn.

Meanwhile, other police had raided a ranch in the Simi Hills on an unrelated matter and arrested a number of hippies living there on charges of auto theft. The officers had no idea that those they were arresting were involved with the murders.

An arrest warrant was invalid so the group headed north to a place named Barker Ranch in Death Valley.

On 10 October they were rounded up again on new charges of auto theft and arson and while they were in jail the LA murder cases broke open.

THE BREAKTHROUGH One of the group, Susan Atkins, blabbed to a cell mate Katherine Graham about the Tate and La Bianca murders.

The cell mate repeated the stories to the police, and in December, nearly four months after the crimes, Charles Manson and five others were charged with the Tate and La Bianca murders.

August 2019 THE BULLETIN

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CRIMINAL LAW

MANSON’S BACKGROUND Charles Manson was born in Ohio in 1934 to 16-year-old Kathleen Maddox. His father’s name is not known and he later took his stepfather’s name. It is reported that his mother sold him for a jug of beer to a woman who wanted children, and his uncle had to find the woman to get him back. He blamed his personality on this upbringing, but the fact is that he was fostered out to a good and caring aunt who provided him with a safe and secure home.

His early life was marked by manipulative behaviour and mental illness and after being sent to reform school in 1947, Manson spent the next 20 years in and out of jail.

While he was in prison, bank robber Alvin Karpis, once a member of the famous Ma Baker gang, taught him to play the steel guitar and he developed a love of music and became fascinated with the Beatles. Following his release in 1967, he headed to southern California, intent on becoming a musician, along the way reinventing himself as a long-haired, Christ-like guru in San Francisco’s HaightAshbury district.

MANSON’S ASSOCIATION WITH DENNIS WILSON & TERRY MELCHER In late spring 1968 Manson and the Family become associated with The Beach Boys’ Dennis Wilson after he had picked up two female members hitchhiking.

Several members began living in Wilson’s Pacific Palisades home and were introduced to his friend Terry Melcher, the son of Doris Day and a record producer who had worked with the Beach Boys, The Byrds, the Mamas & the Papas, and many others.

However the music industry rejected Manson and he was evicted from the Wilson house. He began to accumulate a band of followers, setting off a chain of events that would lead to his notoriety, described as the leering face of evil.

THE MANSON FAMILY Manson had an aura, it was said, and wherever he went, kids gravitated toward him. Those “kids” were mostly young women from middle-class backgrounds, many of whom were drawn in by hippy culture and communal living.

Why was this? They were cleverly brainwashed by Manson who zeroed in on their weaknesses using isolation from the rest of society, sex, LSD, constant

28 THE BULLETIN August 2019

Bible readings, rambling lectures about revolution, and the continuous playing of the Beatles’ White Album. These followers, known as the Family, included Susan Atkins, Patricia Krenwinkel, Leslie Van Houten, and later Charles “Tex” Watson and Bobby Beausoleil. There were 84 in number.

The Family piled into an old school bus they had re-wrought in hippie style, filled with coloured rugs and pillows. They ended up at a ranch owned by a nearly blind, 80-year-old owner, George Spahn.

The ranch had been a television and movie set for Westerns, but the buildings had deteriorated and it was earning money primarily by selling horseback rides.

Members did helpful work around the grounds, and the women occasionally had sex with Spahn in exchange for being able to live there for free.

THE INSTRUCTIONS TO THE GANG On the night of 8 August, 1969, Manson directed Tex Watson to take Susan Atkins, Linda Kasabian, and Patricia Krenwinkel to Cielo Drive and kill everyone there. They proceeded to kill the five people they found: actress Sharon Tate and her unborn child, Sebring, Folger, Frykowski, and Steven Parent, who was just leaving. Watson used a handgun to kill him.

Two nights later, Leno and Rosemary La Bianca were killed.

WHY WERE THE HOUSES SELECTED? Manson knew Terry Melcher and he once went to see him at his former residence in the LA foothills. Melcher had lived there with Candice Bergen but they had earlier moved out. Other previous residents had included Henry Fonda and Samantha Eggar, and Cary Grant and Dyan Cannon had spent part of their honeymoon there.

The La Bianca’s house was seemingly chosen because it was next door to a house at which Manson and Family members had attended a party the previous year. Manson avoided that other house as he didn’t want to be connected with it.

THE TRIAL The trial of Manson, Atkins, Krenwinkle and Van Houten commenced at the Los Angeles Hall of Justice in June 1970. The others were tried separately. It took nine months, then the longest trial in

California, with 154 volumes of transcript.

The jury were kept isolated from the community, even over Christmas. On weekends the bailiffs took them together on outings to places such as Disneyland.

The newspapers they read had the stories about the case cut out. Two married jurors had an affair.

THOSE INVOLVED Judge Older Appointed by then Governor Ronald Reagan, the no nonsense trial judge Charles Older had had a distinguished legal career. He had been the highest scoring ace of the “Flying Tigers” and had fought the Japanese in China before Pearl Harbor. He was later praised for his firm but fair handling of the case.

Attorney General Younger Attorney General of California Evelle J. Younger was a Republican. He had been an FBI Special Agent after law school and a member of the forerunner to the CIA. He ran the office like a military organization.

The District Attorneys - Aaron Stovitz Aaron Stovitz was the head of the DA Trial Division. He had prosecuted more than 500 jury trials including 100 murder cases. He was a good prosecutor with a high ego. I spent a few days working with Aaron. His colleagues told me that his number plate was “Mr DA.” Public interest was intense, so Judge Older imposed a gag order. Nonetheless, Aaron granted an interview to Rolling Stone magazine. After the interview, Younger told him: “No more interviews.”

Being somewhat easy going by nature, Aaron had trouble complying with this.

A one-line comment to a reporter in the hallway outside the courtroom led to his ouster. Susan Atkins told the judge she had stomach pains and was too ill to continue and he had told the newsman that this testimony was “a performance worthy of Sarah Bernhardt.” He was removed from the case.

Vincent Bugliosi Prosecutor Bugliosi, short on experience but also long on ego, took over.

He had been licensed less than six years before. Until then he was “just the guy carrying the files” but was the only one who knew anything about the case.

Assisting were Deputy District Attorneys Musich and Kay. It was far from

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a prosecutorial “dream team.” Defence counsel rejoiced “What a break.”

But Bugliosi made his name in the case. Notwithstanding that he had a young family, he worked hundred hour weeks for two years. He later turned to private practice, wrote Helter Skelter - the best selling true crime book in publishing history - and became an outspoken critic of the media, lawyers, and judges in major trials.

Helter Skelter tells of the enormous effort which Bugliosi and his team had to put in to ensure that Manson was convicted of the crimes.

He wrote further books on the OJ Simpson case, the Assassination of President Kennedy and one entitled “The Prosecution of George W. Bush for Murder”. He did not own a computer and wrote all these entirely in longhand. He died in 2015.

Irving Kanarek Irving Kanarek acted for Manson.

Before his legal career he had invented rocket fuel for the US Army. He was legendary for his obstructionist tactics.

In one case he objected to a witness identifying himself as hearsay because the witness had first heard it from his mother.

Bugliosi dubbed him “the Toscanini of Tedium”. During the trial he objected nine times during opening statements, despite continuous censure by Judge Charles Older. He called witness Linda Kasabian insane, and by the third day of the trial, he had objected more than 200 times.

The jury requested NoDoz to ward off sleepiness during his presentations, and he infuriated Manson so much that he physically attacked him in the courtroom.

He was jailed twice by Judge Older for contempt of court. Even so, he saw the case through, and wound it up with a seven-day-long closing argument that basically accused the three women charged with Manson of having committed the murders out of their love for Tex Watson, not Manson. Kanarek was later disbarred.

I saw Irving Kanarek in action during my visit, and his courtroom demeanour at that time certainly confirmed what had been said about him He is still alive.

HOW DID BUGLIOSI LINK MANSON TO THE MURDERS? The problem for the prosecution at trial was that Manson had not physically

participated in the murders: indeed he had not even been at the murder scenes, so they had to bring him in by way of circumstantial evidence and by the law of conspiracy.

At the heart of this effort was the bizarre story of Helter Skelter. This was established by the evidence of Family member and the star prosecution witness Linda Kasabian, who had driven the car on the night of the murders, and who agreed to testify for the prosecution in return for immunity.

Bugluiosi called her so she could tell the jury the reason for the crimes.

Manson had indoctrinated his followers into Helter Skelter, a stranger than fiction doomsday scenario based on the Beatles songs and the Book of Revelations in the Bible. He envisaged that a series of violent murders would cause white people to turn against the black man if they thought blacks had committed them, and ultimately there would be a civil war between blacks and whites. During that war the Family would hide out in a bottomless pit in the desert.

The blacks would win the war but because of inexperience, they would simply not be able to handle the reins of power so they would look to the only ones left- Manson and his group, who would send them back to picking cotton and they would take over the leadership of the world.

Beatles songs Manson played included Helter Skelter, Piggies, Happiness is a Warm Gun, Sexy Sadie and others.

DISRUPTIONS AT THE TRIAL The trial was peppered by disruptions.

Day after day Manson would come into court and by turn intimidate and amuse.

He played to the people, the courtroom, and the press. He was always staring at the prosecutors, at the jury and at spectators.

During the trial, as before, the women took all their instructions from Manson.

Their daily entry into court, smiling and singing, was unnerving to anyone who saw it. Manson carved an “X” into his forehead in late July to symbolise his removal from society. The following weekend the three girls followed suit. Later it became a swastika.

Members of the family loitered near the entrances and corridors of the courthouse. To keep them out, the prosecution subpoenaed them as prospective witnesses, who would not be able to enter while others were testifying.

Prosecution witnesses were threatened.

One key witness was given a hamburger spiked with several doses of LSD. National attention on the trial included unwelcome notice from the highest level.

President Richard Nixon said on television that Manson was guilty. The next day a smiling Manson held the headline up to the jury as the defence demanded a mistrial.

Changes in the defence team were constant.

The most dramatic moment occurred when Manson lunged ten feet towards the Judge holding a sharpened pencil. It is said that Judge Older started carrying a loaded .38.

At the close of the prosecution case the defence closed without calling a single witness. Manson made a rambling statement, outside the presence of the jury, and he was briefly cross examined by Bugliosi. He said that he had killed no one and had ordered no one to be killed. He was asked if he wished to testify before the jury, but said that he had already relieved the pressure that he had.

As the trial concluded and with the closing arguments impending, defence lawyer Ronald Hughes disappeared during a weekend trip. There were suggestions that he had been murdered for disagreeing with Manson. A new lawyer was appointed to represent Leslie Van Houten, causing a delay of more than two weeks while he familiarised himself with the case.

No sooner had the trial resumed when disruptions of the prosecution’s closing argument by the defendants led Older to ban them from the courtroom for the remainder of the guilt phase.

THE VERDICTS, THE SENTENCING, AND THE APPEALS After over 42 hours of deliberations, on January 25, 1971, the jury returned guilty verdicts against all the defendants on each count.

Then there came the penalty phase, concluding in late March. Midway through, Manson shaved his head and trimmed his beard to a fork. He told the press that he was the Devil, and the Devil always had a bald head.

The jury returned verdicts of death against all four defendants on all counts – the same day as news came of the discovery of Ronald Hughes’s body in the woods.

August 2019 THE BULLETIN

29

CRIMINAL LAW

The death penalties were subsequently commuted as a result of a striking down of such a penalty in another case.

Appeals came on in due course from the convictions. During my time in the office the written casebooks of the prosecution were being prepared. Dozens of issues were raised. Hundreds of authorities had to be researched and cited.

The arguments comprised two volumes.

The appeal issues investigated and presented in written and later oral submissions included the constitutionality of the indictments, the suppression of evidence, alleged interference with defence witnesses, discussions between the prosecutor and Manson, the admissibility of evidence as to Manson’s philosophy, the proper consideration of the evidence of Linda Kasabian, the introduction of extra judicial statements of various defendants, the issue of prejudice caused by pre-trial publicity, misconduct by the prosecution, the selection process of the jury, the admission of evidence where the prejudicial value outweighed its probative value, trial , limitations placed by the trial judge on defence cross examination, rulings on motions to suppress, the appropriateness of rulings on the use of the bailiff, the jury View, states of mind of a juror, the interrogation of a juror, security measures, the jailing of Susan Atkins’ trial counsel, subpoenas to judges, the defining of boundaries of final argument, the proper instruction of the jury in relation to felony murder, conspiracy and intent, diminished capacity and manslaughter, and the competence of defence counsel.

Manson had even objected to the provision to the jury of a record player so that they could listen to the Beatles Album “Helter Skelter”.

Critically, one of the rulings challenged in the appeal was the trial judge’s refusal to rule a mistrial following the appointment of new counsel after Ronald Hughes had disappeared.

On 13 August 1976 the Court of Appeal of the Second District, Division 1, of the State of California in a 45,000 word judgment affirmed the convictions of Manson, Atkins and Krenwinkle, but by majority quashed the conviction of Van Houten and granted her a retrial. The court found that she had been denied

30 THE BULLETIN August 2019

continuous representation of counsel during her trial. Van Houten’s retrial in 1977 was a mistrial as after 25 days the jury could not agree on a verdict, but she was convicted at a second re-trial.

In September 1975 the case once again rocketed back to national attention.

AFTERMATH – THE ATTEMPTED ASSASSSINATION OF PRESIDENT FORD On the morning of September 5 that year Manson Family member Lynette (Squeaky) Fromme went to Sacramento’s Capitol Park dressed in a red robe and armed with a Colt 45 semi-automatic pistol that she pointed at President Ford. The pistol’s magazine was loaded with four rounds, but there was no round in the chamber. While being carried away she managed to say a few sentences to the on-scene cameras, emphasising that the gun “didn’t go off ”.

After a lengthy trial in which she refused to cooperate with her own defence, she was convicted of the attempted assassination of the president and received a life sentence. She responded by throwing an apple at the judge.

WHAT BECAME OF THE FAMILY? Susan Atkins died of brain cancer in a California prison in 2009 at age 61. She had been denied a request to be freed on parole as her fatal illness took hold.

Patricia Krenwinkel and Leslie Van Houten are California’s longest serving women prisoners. In September 2017, Van Houten was granted parole, but this was overturned by Governor Jerry Brown.

A further parole application was likewise turned down earlier this year.

Tex Watson is still serving his life sentence.

Lynette “Squeaky” Fromme was released in August 2009. She moved to Marcy, New York.

Linda Kasabian having testified at the trial and being given immunity, returned to her native New Hampshire after the trial. She appeared in a disguise in a 2009 interview, saying she had been “trying to live a normal life”.

Manson served his life sentence in various institutions and was refused parole on multiple occasions. He was an unrepentant and incorrigible inmate during

Peter Norman outside The White House

his incarceration, with multiple behavioural problems. He spat at prison staff, threw hot coffee, started fights, tried to set his mattress on fire and attempted to flood his cell. He died in prison in November 2017 at the age of 83 years.

Bugliosi later theorised that Manson’s motivation for the murders was focused on the victims simply as representatives of a society that had rejected him, timed by his more recent rejection as a musician, which he had come close to achieving. In his book on the John F Kennedy assassination, he attributed a similar motive to Lee Harvey Oswald. In my view there is some strength in these arguments: the random killings by Eric Edgar Cooke in Perth in the 1960s were almost certainly the result of society’s rejection of him because he was a misfit and had a hare lip.

Roger Smith, Manson’s former Parole officer, best sums him up: “He was not Jesus Christ or Satan, he was a very odd, bizarre, high energy, little anti-social who had some poor, confused, middle-class drop outs who decided to follow him and he got into a situation where he had enormous power over these people and he pulled it all together into this incoherent, hateful kind of plan and there was no one there to say - Charlie, girls, this is crazy”.

Peter Norman OAM is a Master of the District Court and before that he was in legal practice for many years. He was involved in many high profile civil and criminal cases including the early stages of the first Azaria Chamberlain inquest, the Van Beelen, Splatt, and West Lakes bombing murder cases, and a judicial review hearing on behalf of Bevan Spencer von Einem. He appeared several times in the High Court and twice in the Privy Council, and was the senior solicitor at the Royal Commission. B

YOUNG LAWYERS

Young lawyers given a primer on self-marketing

O

n 4 July the Young Lawyers Committee held a seminar titled “Marketing Yourself ”, the second in a three-part educational series offered by the Committee this year.

The purpose of this seminar was to educate young lawyers about the basics of marketing, personal branding, business development and the rise of social media.

Our three guest speakers Robyn Clissold, Andrea Michaels, and Adele Tatarelli provided valuable advice and unique insight.

Robyn Clissold, owner/operator of Social Hive, spoke extensively about the importance of branding for young lawyers – how to develop it and where to promote it. Robyn has 30 years in the legal industry under her belt, and we were thrilled to have her share this wisdom.

Adele Tatarelli, Business Development Executive at Piper Alderman, was our youngest panellist but her experience, tangible advice and engaging delivery was praised by attendees. Adele treated attendees to a feast of marketing tips and tricks.

Running in from a parliamentary sitting did not stop Andrea Michaels, Managing Director at NDA Law and Member for Enfield, from providing stand-out advice to our attendees. Andrea walked

facebook.com/YLCSA

attendees through her impressive career and provided useful examples of how she might have spent more time building her marketing skills.

The Young Lawyers Committee sincerely thank Robyn, Adele and Andrea for taking time out of their busy schedules to join our guest panel. The Committee would also like to thank our major sponsor Burgess Paluch Legal Recruitment for their ongoing support.

Attendance is free. All are welcome Excitement is building. The following quotes have been overhead at the Sir Samuel Way Building water cooler just this month, from eager prospective competitors:

Test your Comedic Skills at the Golden Gavel Competition This year’s Golden Gavel Competition will be held at The Rhino Room on Thursday, 22 August from 6pm-9pm.

By now, you should have peer pressured your funniest or most impressionable colleague into registering to compete. If you have not done so yet, there is still time!

Competitors will each have five minutes to display their comedic skills in front of judgmental colleagues, most of whom possess a below average sense of humour.

Each competitor will receive her or his topic 24 hours before presenting. The winning competitor will represent SA at the National Golden Gavel Competition held in Darwin later this year.

“I am by far the funniest lawyer in Australia” – Alexandra Douvartzidis (HWL Ebsworth)

“I’m going to enter the 2019 Golden Gavel Competition because I moderately enjoy being the centre of attention” – Angelo Lapaglia (Jones Harley Toole)

“My spectacles are the funniest thing about me. Did you know that I used to be the Chief Justice’s Associate?” – Ben Bishop (Johnson Winter & Slattery) “Do you think the Partners might bother to learn who I am if I win?” – Ben Clarke (Minter Ellison) Who will take home the Gavel in 2019?

For further information regarding registration as a competitor or an attendee, please contact mcs@lawsocietysa.asn.au and keep an eye out for email updates from the Society.

August 2019 THE BULLETIN

31

TAX FILES

A Duties Act to Replace the Stamp Duties Act 1923 BERNIE WALRUT, MURRAY CHAMBERS INTRODUCTION

I

n 1694 the Stamp Act 1694 introduced stamp duties into the United Kingdom for a limited period and purpose. As that Act recites, stamp duties were imposed “for granting to Their Majesties several duties on Vellum, Parchment and Paper for 4 years, towards carrying on the war against France”. That war against France ended and stamp duties continued and their scope expanded in the United Kingdom over the ensuing years.2 They were consolidated in an Act of 1815,3 again in 18704 and again in 1891.5 Stamp duty was first introduced into Australia in New South Wales in 1865,6 shortly followed by Queensland in 1866 and Victoria in 1879.7 It was introduced into South Australia in 1886 with the Stamp Act 1886 (SA).8 The Victorian and South Australian stamp duties acts were modelled on the Stamp Act 1870 (UK).

The Stamp Act 1886 (SA) imposed duty on bank notes, bills of exchange (including cheques), bills of lading, conveyances on sale and deeds. The scope of instruments subject to duties expanded, particularly during the years of the First World War. When the various acts were consolidated in 19239 by the Stamp Duties Act 1923 (SA) (SDA) stamp duties were imposed on a broad array of instruments.10 Since then the SDA has been amended approximately 136 times and in recent years the type of instruments subjected to duty has become much more limited.

1

DUTIES ACT MODEL By the early 1990s it became apparent throughout Australia that existing stamp duties legislation needed a rewrite and even possibly some greater degree of uniformity.11 In 1995 an exposure draft of a duties act was released by the Commissioners of New South Wales, Victoria, South Australia, Tasmania and the Australian Capital Territory.12 As can be seen from this, not all jurisdictions participated in this process. In the end South Australia did not proceed with the adoption of that model.

32 THE BULLETIN August 2019

The exposure draft also recognised that traditional stamp duties on instruments was problematic in the context of the increasing volume of transactions that could be undertaken without paper documentation.13 In 1997 New South Wales adopted its model which was followed in Tasmania14 and the Australian Capital Territory.15 Victoria adopted a similar model with some differences.16 Queensland17 and Western Australia18 whilst adopting the duties act framework adopted very different sets of provisions.

The 1995 rewrite process also led to the recognition that many of the administrative processes across state taxes should be addressed in a separate piece of legislation. South Australia adopted such legislation in 1996 in the form of the Taxation Administration Act 1996 (SA) (TAA). All other jurisdictions have also adopted this model, though of course with their differences.19

RECOGNITION CHANGE REQUIRED Since then South Australia and to an extent the Northern Territory have continued to languish with fundamentally a stamp duties model, though the Northern Territory stamp duty legislation has been substantially amended to include many duties act concepts. From time to time questions arose in a number of forums as to why South Australia could not move to a duties act model and simplify the patchwork of the then existing provisions in the SDA.20 In September, 2012 the Economic and Finance Committee of the Parliament of South Australia commenced an enquiry into the South Australia taxation system.

The submissions of a number of bodies, apart from the suggested abolition of stamp duty altogether, was that South Australia should move to a duties act model and in doing so simplify the current provisions of the SDA.21 This submission became one of the recommendations of the Committee.22 The final recommendation of the Committee’s thirty six recommendations also emphasised the

importance of consultation in the process of tax reform.23 In early 2015 the then Treasurer initiated a review of the existing State Taxes System and called for submissions by April, 2015. Once again, the submissions included the abolition of stamp duty, that South Australia should move to a duties act model and that there needed to be a simplification of the existing provisions of the SDA. In the Budget of that year most stamp duties were abolished other than on conveyances on land (with a transition over three years to no duty on conveyances of commercial properties), insurance business duty, certain motor vehicle registration transactions and landholding company and unit trust transactions.24 By 2017 there were informal indications that a process to secure funding from the Commonwealth for a move to a duties act was under way.25 This funding was apparently secured by late 2018. In December, 2018 the Commissioner was able to inform the SA State Taxes Liaison Group (STLG) that the Government had approved funding for a new duties act model.26 The Commissioner’s Discussion Paper describes the main objects of adopting a duties act in place of the SDA as: • reduce compliance costs for taxpayers.

• facilitate the efficient administration of the legislation.

• introduce an improved structure and a contemporary drafting style that is easy to understand to provide certainty to taxpayers in relation to their duty obligations.

• consolidate and simplify the Act post the abolition of various stamp duties over recent years.

• remove archaic language and Latin references by adopting a plain English drafting style.

• convert “stamp duty” from an instrument-based tax to a transactionalbased “duties” tax, similar to other Australian jurisdictions; and • take the opportunity to clarify existing complex provisions (without altering the existing underlying policy).

TAX FILES

The model proposed to be adopted is that used by New South Wales. At the December, 2018 STLG meeting it was indicated by a Commissioner’s officer that in moving to a duties act the changes to assessing practices will be minimised though there may be some changes to the timing of duty liabilities.27 Also, there is no intention to change policy. This has previously been described as ensuring that the changes are revenue neutral.

Obviously, this affects the nature of the submissions made and to be made in the course of the project.

THE PROCESS The Commissioner’s Discussion Paper also describes the process of adopting

a duties act as having commenced in November, 2018 with Cabinet Approval, the undertaking of a “Structured Outline of Rewrite” by March, 2019 and an External Consultation in May, 2019. That is to be followed by a consolidation of the feedback from that consultation, the call for public comment in July, 2019,28 the consolidation of that further feedback and the drafting of a bill for consultation and finalisation between August and December, 2019, culminating in a final bill to be ready for submission to Cabinet in early 2020.

The initial workshop was held by the Commissioner, on 10 May, 2019, at which the purpose of the project and process were outlined to various industry representatives. On 23 May, 2019 a list of

items to be considered in the adoption of a duties act prepared by the Commissioner’s Office29 was circulated to attendees (Issues List) with the request that if any issues had been overlooked in that summary they should be provided by the industry representatives to the Commissioner by 7 June, 2019. Various industry group representatives have provided submissions in response to that request.30 Public consultation on that initial list provided by the Commissioner concluded on 26 July, 2019.31 At the STLG meeting in late June, 2019 the Commissioner indicated that it was expected that a draft bill may be ready for circulation to industry groups for comment by August, 2019. It is anticipated

COONAWARRA \ Take the time The Coonawarra wine region is home to Australia’s most famous vineyard soil, terra rossa.

Together with its cool maritime climate, the region enjoys ideal conditions for growing world-class wine grapes, in particular cabernet sauvignon. Coonawarra is quintessentially Australian: vast blue sky, century-old eucalyptus trees teeming with native birds, and sheep and goats grazing between the vines after harvest.

With 27 cellar doors easily accessible from one road, the region’s wineries offer authentic hospitality, with wood-fired pizzas and the opportunity to Make Your Own Blend.

You’ll find Coonawarra winemakers in Adelaide on 23 August 2019 at the National Wine Centre.

Pre book your ticket at coonawarra.org.

Visit during October and entice your senses with the Cabernet Celebrations Festival. Golf, Regional Cabernet Tasting, The Great Australian Blend Masterclass and much, much more on the menu.

Visit coonawarra.org to view the event programme and design your itinerary.

COONAWARRA\ CELLAR DOOR IN THE CITY

23

AUGUST

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5:30pm - 8:30pm NATIONAL WINE CENTRE

TAX FILES

that a month will be allowed for industry groups to respond with comments on the draft bill.

It remains unclear what further, if any, consultation will occur after that process and before a bill is approved by Cabinet and introduced into Parliament.

It also remains unclear as to when the new legislation will commence. Assuming passage of a bill through Parliament is completed in early 2020, one may expect parts, if not all of the bill, commencing in July 2020. The commencement of the legislation may also be impacted on by the need to alter current administrative arrangements for the collection of duties, including new rulings, rewriting of the current stamping guide etc.

The Issues List also stated that consideration would be given to moving all penalty and offence provisions to the TAA. At the June 2019 STLG meeting it was also acknowledged by the Commissioner that other provisions of the TAA may require amendment to facilitate a streamlined, efficient and effective duty collection processes. This will need to be consistent with the current business practices, community expectations and computer technology.

COMMENT The abolition of most remaining stamp duties in South Australia in the June 2015 Budget has made the adoption of a duties act model in place of the existing SDA much easier and hopefully simpler.

With such changes some may question the need for a new duties act. Others may again repeat the calls for the abolition of stamp duty altogether to be replaced by an expanded GST or a broad based land tax.32 Whilst the duties act model of another State may be a starting point it must be remembered that that model is now more than twenty years old and there have been many changes in business practices and in community expectations since it was formulated (e.g. electronic conveyancing).

It therefore needs to be forward looking and must achieve the simplification now

34 THE BULLETIN August 2019

and into the future, which it has been funded to do, to benefit the State and its community. It should also satisfy the four tenets of a good tax: simplicity, efficiency, equity and flexibility.

Such changes must also occur in a suitably modified administrative framework, so many aspects of the TAA will also require reconsideration and amendment. After so long in coming, one may question the need to unduly hasten the adoption of a new duties act and suitable TAA changes.

As the Interim Report highlighted in its final recommendation “community consultation on any particular reform is necessary because a sustainable taxation system needs to have broad community understanding and acceptance of its overall fairness and efficiency.”33 Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

Endnotes 1 5 & 6 Will and Mary c 21 (UK).

2 The initial introduction of income tax in the United Kingdom in 1793 also occurred because another war against France, the then war against Napoleon.

3 55 George III c 184 (UK).

4 Stamp Act 1870 (UK), 33 & 34 Vict c 39.

5 Stamp Act 1891 (UK), 54 & 55 Vict c 39 (though most of it has now been repealed) and a Stamp Duties Management Act 1891 (UK) 54 & 55 Vict c 38.

6 Stamp Duties Act of 1865 (NSW) 7 Stamp Duties Act 1879 (Vic).

8 That appeared to be based on the Stamp Duties Act 1879 (Vic).

9 Stamp Duties Act 1923 (SA).

10 They included, affidavits, statutory declarations, agreements, annual licences for insurers, bank notes, bills of exchange including cheques, bills of lading, contract notes for marketable securities, conveyances, deeds, leases, letters of allotment, mortgages and other securities, powers of attorney, receipts and Totalizator receipts.

11 There had a broader push to review state taxes a few years earlier with the publication of the Tax Reform and NSW Economic Development Review of the State Tax System by the New South Wales Tax Task Force (August 1988).

12 B Cannon and P Edmundson, “Refocussing on Fundamental Principles of Stamp Duty” (2006) 4(2) UNSW eJournal of Tax Research 101, 102.

13 Ibid.

14 Duties Act 2001 (Tas).

15 Duties Act 1999 (ACT).

16 Duties Act 2000 (Vic).

17 Duties Act 2001 (Qld).

18 Duties Act 2008 (WA).

19 Taxation Administration Act 1996 (NSW), Taxation Administration Act 1997 (Vic), Taxation Administration Act 2001 (Qld), Taxation Administration Act 2003 (WA), Taxation Administration Act 1997 (Tas), Taxation Administration Act 2007 (NT) and Taxation Administration Act 1999 (ACT).

20 One example is a submission to the then Commissioner of State Taxation in February 2012 and a response in August 2012 acknowledging a rewrite was overdue but it required resources to do so (see Interim Report South Australian Taxation System Eighty-Third Report of the Economic and Finance Committee of the South Australian Parliament 185 (Interim Report): The Final Report of the Committee (Report No 84) dated 14 February 2014 was brief and with one further issue, recommended the Treasurer note that recommendation and those of the Interim Report).

21 Interim Report [10.11.2].

22 Recommendation 27 of the Interim Report.

23 Recommendation 36 of the Interim Report.

24 Though such transactions involving landholders of commercial properties were also to be exempted.

25 See Discussion Paper Rewrite of the Stamp Duties Act 1923 (https://yoursay.sa.gov.au/decisions/stampduties/about) (Discussion Paper). Also see Joint Media Release Cutting red tape for South Australian small business of the Treasurer and Minister for Small and Family Business, Skills and Vocational Education of 29 March 2019.

26 See Minutes of the STLG Meeting of 5 December 2018 (December Minutes) (http:// www.revenuesa.sa.gov.au/public-consultation/ state-taxes-liaison-group/STLG-Meeting-051218. pdf) 27 So far there is no suggestion this will involve duty being payable at the time of sale rather than the time of the conveyance.

28 Which occurred on 1 July 2019.

29 A copy is available at https://revenuesa.sa.gov. au/__data/assets/file/0020/40187/SDR_ ItemsForConsideration.pdf.

30 That includes a response to a number of issues raised by the Law Society’s Committees.

31 See https://yoursay.sa.gov.au/decisions/stampduties/about.

32 See Interim Report.

33 Item 36 of the Recommendations of the Interim Report.

ARBITRATION

Family Arbitration: What is it and how to use it JUDGE JOE HARMAN, FEDERAL CIRCUIT COURT OF AUSTRALIA Boulle and Field1 opine that: “…the orderly management of disputes… [is]…a critical feature of democratic governance…The rule of law in democracies such as Australia ensures a consistently peaceful and ordered society because it puts in place a network of accessible, fair and usually open and accountable institutions and procedures that allow for citizens to address sources of dispute and conflict” (emphasis added)

T

here are many “institutions and procedures”, other than courts, which resolve disputes,2 including facilitative modes of dispute resolution, such as mediation or Family Dispute Resolution, and determinative modes of dispute resolution such as arbitration, defined by s.10L Family Law Act 1975 (FLA) as: …a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

Notwithstanding the extensive history of arbitration as a means of determinative dispute resolution, 3 the expansion of arbitration to the modern family law domain has been somewhat slow. Wendy Kennett describes the move towards the use of arbitration4 in terms of competing public policies or “State interests”, on the one hand, preserving overburdened court resources and, on the other hand, ensuring that financial settlements are adequate, weaker parties are protected and

fairness ensured. Family arbitration is now available in most common law jurisdictions including England and Wales, Scotland, New Zealand, Canada, the United States and Australia. The purpose of this brief paper is to explore the availability and use of arbitration under the FLA.

BENEFITS OF ARBITRATION The benefits of arbitration over litigation are generally accepted as including: • Choice of Decision Maker – The parties select the arbitrator; • Efficiency – Arbitration is completed far more quickly than a court hearing; • Privacy – The arbitral award is not publicly accessible or published.

• Convenience – The arbitration occurs at a time and place convenient to all; • Flexibility – The arbitration can proceed however the parties desire; • Finality – An arbitral award is final and is only subject to review with respect to errors of law or on bases similar to those in s,79A FLA; • Cost -Whilst the parties, generally equally, pay the costs of the arbitration, cost is generally far less than a court hearing.

ADVISING CLIENTS REGARDING ARBITRATION Legal Practitioners are obliged to give clients advice regarding arbitration. Section 12A FLA requires that “people affected…by separation or divorce are informed about ways of resolving disputes other than by applying for orders

under this Act”. Section 12B FLA imposes a specific obligation upon advisors to ensure that clients are aware of “the arbitration facilities available to arbitrate disputes”.5

WHAT CAN BE ARBITRATED? Arbitration is available in financial proceedings under the FLA.6 Arbitration can only occur with the consent of all parties.

If a matter is referred to arbitration by court order then the order must specify the part or parts of the proceedings which are referred.7 Whilst arbitration is predominantly used to determine the whole financial dispute it might conceivably be used to hear only part of the dispute or to determine factual controversy and then allow the parties to use some other process, such as mediation or FDR, to then negotiate a resolution of the matter.

Arbitration can occur prior to or in place of proceedings or by referral to arbitration after proceedings have been commenced. Arbitral awards can be registered by the court irrespective of whether there are proceedings on foot.

WHO CAN ARBITRATE? Section 10M FLA defines an arbitrator as “a person who meets the requirements prescribed in the regulations to be an arbitrator”. These requirements are addressed in Regulation 67B Family Law Regulations 1984 (the regulations).

The Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) is August 2019 THE BULLETIN

35

ARBITRATION

responsible for maintaining the list of family law arbitrators.8 Only those persons recorded upon the AIFLAM list of family law arbitrators, meet the definition of “arbitrator” for the purpose of the FLA. If someone is engaged as an arbitrator who is not accredited by AIFLAM, then the arbitral award cannot be registered.

The AIFLAM list can be accessed via www.aiflam.org.au/~aiflam/searchaiflam.php.

HOW IS ARBITRATION SOUGHT? As arbitration is a consensual arrangement, parties can simply contact an arbitrator and contract them to arbitrate their dispute. If proceedings are on foot then regulation 67D provides that a Form 6 application can be made by the parties, seeking referral to arbitration. In reality, leave to make an oral application for referral to arbitration is readily granted.

HOW IS ARBITRATION CONDUCTED? The conduct of the arbitration is a matter for the parties. The scope and process of arbitration is dealt with by a written contract or “arbitration agreement” between the parties. Regulation 67F provides that the parties “may” enter into an arbitration agreement. As a matter of best practice, a written arbitration agreement should be entered into before arbitration occurs. AIFLAM provides an “arbitration kit” which is accessible from the AIFLAM website.

There is substantial flexibility in the processes and procedures that might be adopted in arbitration. Arbitration can be conducted on a spectrum between on the papers determination to a process identical to a full hearing before the court.

However, there is scope for more creative processes to be adopted such as:

36 THE BULLETIN August 2019

• Depositions might be taken from the parties or witnesses rather than their attendance before the arbitrator to give evidence and be cross-examined. This might have particular utility if one of the parties or a witness is incapacitated or suffers a disability; • The parties can determine whether any oral testimony is transcribed or not; • The parties can determine what rules of evidence are to apply to some or all of the evidence.

In conducting the arbitration: The arbitrator must apply the relevant provisions of the FLA as interpreted by relevant precedent. In short, the arbitrator must “get the law right” (regulation 67I(1)); • The arbitrator must conduct the arbitration with procedural fairness (regulation 67I (2))9; • The arbitrator must be free of bias (regulation 67I (3)); • The arbitrator must be satisfied that both parties have legal capacity to participate (regulation 67L); • The arbitrator must only deal with the dispute that has been referred to them for determination; • The Arbitral award must not infringe public policy (for example, it must not condone or require illegality in its performance); • The arbitral award must be capable of performance and enforcement.

THE COURT’S ROLE WITH RESPECT TO ARBITRATION The court’s role in arbitration comprises: 1. Ordering arbitration when consent is forthcoming (s13E); 2. Defining the portion of the proceedings to be arbitrated; 3. If necessary, providing a mechanism to determine the arbitrator;

4. Staying court proceedings whilst the arbitration is brought to finality;10 5. Making orders to facilitate and direct the arbitration (Regulation 67E and Rule 26B.31 Family Law Rules); 6. Determining questions of law referred by the arbitrator (s13G FLA); 7. Registering the arbitral award and determining an objection to registration (s13H FLA, Regulation 67Q and Rule 26B.33 Family Law Rules); 8. Undertaking any necessary review of the arbitral award (s13J FLA); and, 9. Enforcing the arbitral award.

REGISTRATION OF THE ARBITRAL AWARD At the completion of the arbitration the arbitrator must deliver an arbitral award. The standard arbitration agreement requires that the arbitral award be delivered within 28 days of the arbitration concluding. The formal requirements with respect to an arbitral award are dealt with

by Regulation 67P. Either party may apply to register the award (s.13H(1) FLA). It is not obligatory for the parties to seek registration of the arbitral award. However, if it is sought to enforce the arbitral award then registration is a necessary precondition.

For an arbitral award to be registered a Form 8 Application must be filed and served. Either party may, within 28 days of service of the Form 8 application, object to registration of the arbitral award. Absent objection, (or following any unsuccessful objection) the Arbitral Award must be registered (see C & F [2019] FCCA 373). Importantly, if either party seeks to impeach the arbitral award (by review or by seeking to set aside or vary the award) then registration is a precondition.

ARBITRATION

OBJECTING TO REGISTRATION OF AN ARBITRAL AWARD The ability to object to registration of an arbitral award is not found in the FLA but in Regulation 67Q(3) of the Regulations.11 The Act, Regulations and Rules are silent as to the bases upon which registration of an arbitral award might be opposed. However, the bases upon which registration might be opposed were dealt with in Braddon & Braddon [2018] FCCA 1845 and Pavic & Pavic [2018] FCCA 3386 (at paragraphs 19-39 and especially at 34: Objection to registration deals with the constitution of the arbitral tribunal and the necessary preconditions thereto, matters such as the giving of notice, submission to arbitration and the like.

EFFECT OF REGISTRATION OF AN ARBITRAL AWARD This is dealt with by s.13H FLA. Upon registration, the arbitral award has the same effect as an order or decree of the court and is enforceable as such.

APPLICATION TO REVIEW AN ARBITRAL AWARD Review of an arbitral award is addressed by s.13J FLA. A review is on the basis of judicial review. Review of an arbitral award is confined to errors of law (again see Braddon & Braddon [2018] FCCA 1845 and Pavic & Pavic [2018] FCCA 3386).

APPLICATION TO SET ASIDE OR VARY AN ARBITRAL AWARD Section 13K(1) FLA allows the court to vary or set aside an arbitral award. The grounds for setting aside of varying an arbitral award are similar to the grounds to set aside or vary an order under s.79A and s.90SN FLA in that jurisdiction

to intervene arises from demonstrated bias, fraud, duress or impracticality of performance or unenforceability.

ENFORCEMENT OF AN ARBITRAL AWARD Enforcement is dealt with by s.13H(2) FLA and by Regulation 67S. All of the powers under Part 25B of the Federal Circuit Rules 2001 are available to enforce an Arbitral Award.

PRESENT USE OF ARBITRATION As of 22 March, 2019, not less than 109 matters had been referred to Arbitration by the Federal Circuit Court of Australia.12 On the basis that the average hearing time of a property matter is 1.7 days, this has resulted in a saving of at least 185 days of court hearing time (or 37 sitting weeks – more than a full year of hearings for one Judge).

The matters referred to arbitration have finalised in a fraction of the time that they would have if heard by the court. The average time from referral to arbitration until disposal of the proceedings is approximately 4 months. Each matter would have waited substantially longer for court determination.

The referral of these matters has eased pressure upon the court and allowed parties to conclude their dispute promptly. B Endnotes 1 Rachael Field and Laurence Boulle “Australian Dispute Resolution Law and Practice” 2016 p.124 Chapter 4.26. Indeed, Article 10 of the 1948 Universal Declaration of Human Rights of the United Nations provides, as a fundamental human right, that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations…”

2 I acknowledge and concur, as opined by Justice Rares in His Honour’s excellent paper “Is Access to Justice a Right or a Service?” [2015] FedJSchol 11 presented at the Access to Justice – Taking the Next Steps Symposium held on 26 June 2015 at Monash University, that “the role of the courts is to quell controversies in a final, binding decision that is immediately enforceable” and that Courts are more than a means of dispute resolution.

3 For an excellent discussion see Justice Robert McDougall (retired) “Arbitration: past, present and future” opening address to the RAIF Arbitration Conference, 25 November 2016 Sydney, NSW 4 Wendy Kennett “It’s Arbitration, But Not as We Know It: Reflections on Family Law Dispute Resolution” International Journal of Law, Policy and The Family, 2016, 30, 1–31 at 4-5 5 Rule 21 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that “a solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a Court is appropriate…for the robust advancement of the client’s case on its merits”. This might suggest that consideration of arbitration as an alternative means of determination is obligatory.

6 The restriction of arbitration to financial proceedings is inherent from the Court’s power to refer proceedings to arbitration provided by section 13E FLA. 7 If proceedings involved both parenting and property adjustment issues the property issues can be “split” and the property proceedings referred to arbitration and the parenting issue determined by the Court. This might have real utility if the determination of parenting issues will significantly impact the determination of property issues such that the parenting can be determined and the property then promptly arbitrated.

8 The available arbitrators include former Appellate Judges, Judges, Senior Counsel, Academics and senior solicitors and Barristers. Those on the panel are well qualified.

9 Whilst arbitration is not a judicial process, procedural fairness or due process must be afforded and demonstrated to have been so afforded. As the High Court has discussed in Allesch v Maunz [2000] HCA 40, what is required to afford due process is determined by reference to the facts and circumstances of any case.

10 In an audit of matters referred to arbitration by the Federal Circuit Court, some Judges would appear to conclude the proceedings at the point of referral to arbitration, rather than staying the proceedings.

11 Rule 26B.34 also touches on the issue at least as to the need for a Response and Affidavit to be filed within 7 days of service of the Form 8 Application for Registration.

12 This data is compiled from a survey of Judges sitting within the FCC’s family law jurisdiction. The Court’s work management software (Casetrack) does not record orders made referring proceedings to arbitration and, accordingly, a manual count is required. As there is no standardisation within the Court as to how orders are stored, a manual search of records may not be entirely accurate It is possible that further matters have been referred to arbitration.

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RISK WATCH

Solicitors' Duties in Witnessing Documents – yet another cautionary tale GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS Even if you are “merely” witnessing a document, substantive duties to advise may still arise. Be very careful to ensure that you do not breach such duties.

M

ost, if not all, practitioners will be called on from time to time witness the execution of documents. The recent decision of Judge McEwen in Sgherza v Sgherza [2019] SADC – (27 June 2019) should be carefully noted.

This case involved an action by a mother (Anna) against her son (Sam) as well as a number of other defendants including a solicitor, in respect of an undocumented family arrangement.

Anna and Onofrio (Sam’s father) had owned their family home for approximately 30 years. This was a large property and exceeded the space required by an elderly couple. The arrangement (reached in 2014 and 2015) was that land would be purchased and two dwellings would be built (by Sam, who ran a building company), one to be occupied by Anna and Onofrio, and one to be rented out, providing a source of income for them. The new house, plus a $100,000 cash payment to Anna and Onofrio, would be funded by the sale of the family home. It was expected, however, that the new property would carry a mortgage of around $200,000.

Unfortunately, Onofrio died in September, 2015. The property was then sold, with settlement occurring on 11 January, 2016. The litigation primarily concerned the manner in which the proceeds of that sale were disbursed.

In the meantime, two dwellings on land purchased for that purpose had been constructed by entities associated with Sam, with Anna occupying a house owned by one of Sam’s daughters (Deanna) during that period. The portion of the new property which was to be available to be rented out has been rented out. Anna, however, has refused to move into the other portion of the property. Significantly,

38 THE BULLETIN August 2019

the property now carries a mortgage of approximately $500,000.

HOW DID ALL THIS CONCERN THE SOLICITOR? On 28 May, 2015 (i.e. before Onofrio’s death) a number of documents were executed. These documents included a Loan Contract, a Memorandum of Mortgage and Settlement Instruction in relation to a (second)1 Mortgage over the family home, securing the sum of $350,000. It was Sam’s case that this loan and the (second) Mortgage were necessary steps in the implementation of the family arrangement i.e. so that the land for the new house could be purchased and for construction to commence. According to the 28 May, 2015 Loan and Mortgage documents, the signatures of Onofrio and Anna on those documents were witnessed by the solicitor.

Anna said, however, that these documents were forgeries and that she and Onofrio never signed them. Anna also alleged that her son must have acted fraudulently somehow in forging these documents and by misappropriating the proceeds of sale of the family home. Anna sued the solicitor (as the third defendant) for being part of Sam’s fraud and for fraudulently representing that he witnessed Onofrio and Anna’s signatures because, on her case, this never occurred.

PLAINTIFF UNSUCCESSFUL ON HER PRIMARY CASE His Honour found against Anna on her case that the signatures on the Loan Document/Mortgage Document were forgeries. He found that a meeting on 28 May, 2015 did occur at which the documents were signed by Anna, Onofrio and Betty (Sam’s sister) and witnessed by the solicitor. Expert evidence to that effect that Anna’s signatures were not forgeries was also accepted by the Judge as supporting the version of events that the meeting occurred.

PLAINTIFF’S ALTERNATIVE CASE Things did not, however, end there for the solicitor, because Anna’s alternative case against him, that he was negligent or in breach of his duty as a solicitor arising from the events associated with signing of the documents, still needed to be dealt with.2 Whilst the alternative case against the solicitor was pleaded with “a degree of vagueness and uncertainty” as to just what the alternative case was there was an allegation that the solicitor made no recommendation to the plaintiff to obtain independent advice. His Honour said that the real issue raised by the alternative case was the nature and extent of the solicitor’s duty and whether there was a breach of that duty.

RISK WATCH

do things which would be apt to confuse the Plaintiff as to what his role was. By entering into even the brief cursory discussion and advice about the documents which his Honour found took place, the solicitor was potentially giving the impression he was in some way providing independent advice on the document. Whatever discussions took place were nowhere near what would be required to provide proper independent advice on the documents. [para.160] 3. He made no effort to comply with the formal requirements for witnessing a statutory declaration. [para.161] 4. Had the solicitor carried out his minimal role in a competent and professional manner, there were a number of circumstances which should have amounted to “alarm bells”. The Judge found that “this was a situation that cried out for something to be said to the Plaintiff on the topic of independent legal advice” and that discussion (being the raising of the topic rather than the giving of it) should plainly have occurred in the absence of Sam. [para 162] 5. Even in carrying out the minimal role outlined above, it must have been patently obvious to the solicitor that some aspects of the documents and statutory declarations were plainly incorrect or misleading, yet nothing was said. [para.163]

The Judge found that the solicitor was engaged by Sam 3 but that the Judge found that the solicitor was providing a service to all of the parties whose signatures he was witnessing, i.e. Anna, Onofrio and Betty, as well as Sam. His Honour said “This was a fairly minimal service which did not actually require a solicitor, but on this occasion was being carried out by a solicitor.

In addition to that, in relation to the statutory declarations, he was providing a service to each of the parties who signed a statutory declaration. This was a service that did need to be provided by a suitably qualified person, such as a solicitor. …….

That is the limited scope of the services he was retained or engaged to carry out… Those circumstances gave rise to a duty of care to all four of those parties, to carry out his role, as I have just specified it, in a competent and professional manner. It can be seen that it was a fairly minimal duty.” [para.155-156]

SOLICITOR FOUND IN BREACH OF DUTY Unfortunately for the solicitor, the Judge found that he had breached even this minimal duty to the Plaintiff in a number of ways: 1. It was important that he make it clear to the Plaintiff what his limited role was. He did not do this. [para.159] 2. It was important that he not say and

CAUSATION Notwithstanding these comprehensive findings of breach, the Plaintiff was unable to prove that these breaches were causative of her loss and so damages were not ordered against the solicitor. 4 In the circumstances of the family arrangement his Honour was not convinced that had the solicitor advised Anna to seek independent legal advice that she would have done so, or heeded that advice.

CONCLUSION Even though damages were not awarded against the solicitor, by reason of the causation issues, these findings as to breach of duty are serious. Practitioners must take their obligations in witnessing documents seriously and be aware of additional duties which might arise.

Endnotes 1 The circumstances of entering into the first Mortgage and its consequences are outlined in the Judgment but are beyond the scope of this article.

2 The fact that there was such an alternative case for Anna to run, in circumstances where her primary case was seemingly absolute (“the signatures are forgeries”, “the documents were fraudulent”, “the meeting never happened”) is but one of the surprising aspects of this case.

3 Sam had made arrangements by telephone and text message for the solicitor to attend at his parents’ house on 28 May 2015 because “there were some finance documents for his [Sam’s] parents and Betty for signing”.

4 Damages were awarded against Sam, however, for breaching the family arrangement.

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39

BOOKSHELF

SUCCESSION: FAMILIES, PROPERTY AND DEATH Abstract from LexisNexis Succession: Families, Property and Death, 5th edition continues to set the standard in the approach to the study of succession law. Taking a strong theoretical and comparative focus, legal principles are set firmly in their historical and social context. Australian succession law is

placed in its national and international setting, and considers social objectives of succession law as a basis for understanding and applying the rules. Including up-to-date commentary on case law and legislation, this revised edition also considers the impact of the Uniform Succession Laws project on the law in Australia.

R Croucher & P Vines 5th ed, LexisNexis Butterworths 2019 PB $149.00

ADMINISTRATIVE REDRESS IN AND OUT OF THE COURTS: ESSAYS IN HONOUR OF ROBIN CREYKE AND JOHN MCMILLAN

G Weeks & M Groves The Federation Press 2019 HB $160.00

Abstract from Federation Press This collection of papers by some of Australia’s leading judges, scholars and practitioners focuses on complex public law issues. The book examines executive power, judicial and tribunal review and integrity bodies like Ombudsmen.

This book follows The Federation Press’ edited works on public law – Key Issues in Public Law (2018) and Key Issues in Judicial Review (2014) by considering issues not examined in detail in existing works. The book is designed to fill a gap in court and chambers libraries, but also the collection of scholars and students of public law.

STATUTORY INTERPRETATION IN PRIVATE LAW

P Vines & M Scott Donald The Federation Press 2019 HB $160.00

Abstract from Federation Press In the past 50 years private law has undergone a revolution: statutes are now prevalent in every area. This book considers how judges in private law cases should respond to this change. How are statutes to be interpreted in this area with its deep historical roots, and is it reasonable to think that statutory interpretation might have different aspects and emphases in private law compared with public law?

The book canvasses some general questions about how statutory interpretation operates in private law, such as whether there should be a different concept of the principle of legality in private law, or whether parliamentary intention might include an understanding of private law. Particular applications such as the role of statutory interpretation in contributory negligence, defamation, directors’ duties, consumer law and equity are also considered

PRINCIPLES OF AUSTRALIAN EQUITY AND TRUSTS Abstract from LexisNexis Principles of Australian Equity and Trusts is designed to equip students with the skills to analyse fact situations and correctly identify the relevant principles of the law of equity and

P Raden & C Stewart 4th ed LexisNexis Butterworths 2019 PB $119.00

40 THE BULLETIN August 2019

trusts applicable to the resolution of problems.

The clear and accessible style of the authors makes this an essential resource for students new to the study of equity and trusts.

WELLBEING & SUPPORT

World Health Organisation recognises burnout - but do you?

WELLBEING & RESILIENCE COMMITTEE

I

n May 2019 a remarkable thing happened. The World Health Organisation (WHO) declared “burnout” to be an occupational disease that undermines how well people perform in their occupations. This is a milestone in the recognition that occupational burnout is not just millennial slang but a huge burden personally, professionally and commercially.

In the latest International Classification of Diseases (ICD-11), burnout has been described as “a syndrome conceptualised as resulting from chronic workplace stress that has not been successfully managed”.

This might be characterised by feelings of exhaustion, mental fatigue, mental distance from a job and reduced professional productivity. It is a reference specifically to workplace issues and is not to be applied to other areas of life. Sometimes there is confusion around burnout and stress, but the Black Dog Institute clarifies that stress is when you are in “fight or flight” mode.

Adrenaline is pouring out and you are doing things on the go, whereas burnout is

when that fire is no longer present—your eyes might feel blank and you are not performing as well as you should be.1 The current classification does not classify burnout yet as a medical condition, but the way individuals and workplaces manage stress and support each other will be an indicator if it needs to proceed to a globally recognised medical condition from 2020 onwards.

WHAT CAN EMPLOYERS DO NOW? Evidence suggests that the most effective way to prevent burnout is not to offer lunchtime yoga or before-work meditation sessions but to create a working environment that promotes comfortable working conditions with reasonable working hours. As an employer, recognise the effort of employees by providing flexibility to work from home, the ability to arrange working hours around personal commitments or the offer of time off at the end of an extended busy period, in recognition of their contribution.

WHAT CAN EMPLOYEES DO NOW? Being kind to yourself is the first step. Acknowledge you are experiencing feelings akin to burnout, stress, anxiety or depression. Seek help from the services available to you as a Law Society member.

Speak to your employer or, if you are a sole practitioner, reach out to a trusted individual for their advice. Don’t beat yourself up for not making the gym class you would attend if you were not so busy.

Assess how you feel on a daily basis— prioritise good sleep and healthy food options.

An additional positive from the ICD classification is the WHO commitment to embarking on the development of evidence-based guidelines on mental wellbeing in the workplace. Watch this space for updates on those developments!

Endnotes 1 Parker, G, 2019, ‘The real signs of burnout’, www.abc.net.au.

August 2019 THE BULLETIN

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FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT CHILDREN – ARTIFICIAL CONCEPTION – SPERM DONOR WINS BID IN HIGH COURT FOR FATHERHOOD

PROPERTY – LONG MARRIAGE – HUSBAND’S INITIAL CONTRIBUTION OF LAND SOARED IN VALUE DUE TO REZONING

n Masson v Parsons [2019] HCA 21 (19 June, 2019) the High Court allowed Mr Masson’s appeal against a declaration by the Full Court of the Family Court of Australia that he, as a sperm donor, was not a parent of the child. The appellant had provided sperm to the mother in the belief that he would father the child, would be named on the birth certificate and enjoy an ongoing role in the child’s life.

The Full Court of the Family Court found that because the birth mother and her wife were not de facto partners at conception s 60H of the Family Law Act did not apply. It was held that s 79 of the Judiciary Act 1903 (Cth) applied such that the Status of Children Act 1996 (NSW) applied, which presumed that the donor father was not a parent. In making that decision, the Full Court held that s 60H “leaves room” for the operation of State laws as to parentage, there being nothing in the Family Law Act that “otherwise provides”.

Rejecting that decision, the High Court held that Part VII of the Family Law Act “leaves no room for the operation of contrary State or Territory provisions” ([45]); that the Full Court was wrong to invoke s 79 of the Judiciary Act to “pick up” the NSW Status of Children Act; and that whether or not a person was a “parent” under the Family Law Act is a question of fact and degree, determined according to the “ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand” ([29]).

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said ([3]) that the appellant “had an ongoing role in [the child’s] financial support, health, education and general welfare and … enjoys what the primary judge [Cleary J] described as an extremely close and secure attachment relationship with the child”, agreeing with Cleary J who said, relying on Cronin J’s reasoning in Groth & Banks [2013] FamCA 430, that while the appellant did not qualify as a parent under s 60H he qualifie[d] as a parent otherwise than under that provision ([24]).

In Jabour [2019] FamCAFC 78 (10 May, 2019) the Full Court (Alstergren CJ, Ryan & Aldridge JJ) allowed the wife’s appeal against Judge Mercuri’s contributionsbased assessment of two-thirds: one third in favour of the husband after a 25 year marriage that produced three adult children.

The husband owned a half interest in three parcels of land (30, 30 and 44 acres) at cohabitation, having bought them from his father in 1975 for $26,000. After 11 years of marriage, he sold his interest in the 30 acre lots to acquire all of the 44 acre lot. Originally used for a farm, the property was rezoned for residential use in 2010 and was sold in October 2017 for $10,350,000. The net pool was $9,033,913 plus superannuation of $371,686.

At first instance, the Court found ([125] of its reasons) that the parties’ contributions during cohabitation were equal; observed that the value of the property represented almost 90 per cent of the non-super pool; cited Williams [2007] FamCA 313 and Zappacosta [1976] FamCA 56; and concluded that the husband “bringing … Property A … into the relationship has made a significant contribution which needs to be appropriately recognised in the division of property between the parties”.

The Full Court ([31]) accepted the wife’s submission that “the primary judge erred in seeking a nexus between contributions and a particular item of property when assessing contributions holistically over a long marriage and when considering the assets of the parties on a global basis ... quarantining from the assessment of contributions, all of the other contributions made by the parties … ”.

Before reassessing contributions at 53:47 in favour of the husband, the Full Court said (at [43]):

I

42 THE BULLETIN August 2019

“ … [T]he Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of ‘the myriad of other

contributions that each of the parties has made during the course of the relationship’ (Williams at [26]).”

CHILDREN – FINAL ORDER MADE AFTER DISCRETE TRIAL AS TO UNACCEPTABLE RISK AT WHICH FATHER FOUND TO POSE SUCH A RISK In Rodelgo & Blaine [2019] FamCAFC 73 (26 April, 2019) the Full Court (Strickland, Kent & Hogan JJ) dismissed the father’s appeal against a parenting order made by Judge Jarrett after a discrete hearing as to whether the children were at risk of harm from either parent. After finding that the father did pose such a risk, Judge Jarrett directed each party to file written submissions as to whether a further hearing was necessary or final orders should be made based on the finding of risk ([34]).

The mother and ICL supported final orders. The father objected. Judge Jarrett made a final order that the mother have sole parental responsibility, that the children live with her and spend supervised time with the father not less than two hours each fortnight. The father appealed, arguing that he had been denied procedural fairness.

The Full Court said that the trial judge’s approach “was permissible pursuant to Division 12A of Part VII of the Act” ([6]) and cited s 69ZN as to the principles for conducting childrelated proceedings, s 69ZQ(1) by which a court “must decide which of the issues … require full investigation and hearing and which may be disposed of summarily ([7]) and s 69ZR as to the court’s power to make findings and orders at any stage” ([8]).

The Court continued at [35]-[36]: “ … [T]he trial of the discrete issue involved each of the parents and the[ir] witnesses … giving oral evidence and being cross-examined. … [T]he family report writer and … the expert psychiatrist were the only … witnesses who did not give oral evidence … but … [they did provide] written reports … [the facts contained in which] were not in contest.

FAMILY LAW CASE NOTES

[36] … [B]oth the mother and the ICL provided written submissions … that it was in the children’s best interests for the Court to proceed to make final orders. Whilst … the father sought to have a further hearing … there was no agitation by [him] to the effect that he wanted the opportunity to crossexamine either of the expert witnesses before the Court proceeded to make final … orders. His written submissions … [were] largely a re-agitation of complaints about the mother … ”

CHILDREN – SUSPENSION OF WATCH LIST ORDER IN ERROR AS LATER CONSENT ORDER MEANT DISCHARGE OF INTERIM ORDERS In Sadasivam & Seshan [2019] FamCAFC 76 (1 May, 2019) an interim watch list order was made in 2017 relating to the mother and the parties’ child; a final consent order was made in 2018 (which was silent as to its effect on interim travel restrictions); and the mother applied for the suspension of the interim orders so that she could travel with the child to India (being a non-Hague Convention country).

The suspension was granted by Judge Kelly but set aside on appeal by Austin J,

sitting in the appellate jurisdiction of the Family Court of Australia.

Austin J said (from [17]): “The parties assumed the interim injunction and … watch list order made in September 2017 continued to apply for the duration of their two year terms. That can be the only rational explanation for why the mother later brought her application in January 2019 to temporarily suspend those orders ( … ) [26] … [A]ll interim orders made … during the litigation … were spent … by the final parenting orders which were made with the parties’ consent on 1 August 2018. Although the interim orders were expressed to operate until September 2019 they were … still … interim … Interlocutory orders may be discharged at any time before the trial or settlement of an action, but are ipso facto discharged by determination of the action, since interim orders are only intended to regulate the parties’ conduct in one form or another until the action between them is finally determined according to law [authority cited]. ( … )

3 JUN 2019 – 2 JULY 2019 ACTS PROCLAIMED Motor Vehicles (Compulsory Third Party Insurance) Amendment Act 2019 (No 5 of 2019) Commencement ss 5, 6 & 7:

1 July 2019 Commencement remaining sections:

14 June 2019 Gazetted: 6 June 2019, Gazette No. 26 of 2019 Rail Safety National Law (South Australia) (Miscellaneous) Amendment Act 2019 (No 4 of 2019) Commencement: 1 July 2019 Gazetted: 6 June 2019, Gazette No. 26 of 2019 Statutes Amendment and Repeal (Budget Measures) Act 2018 (No 35 of 2018) Commencement s63: 1 July 2019 Commencement ss 63 and 64: 1 January 2020

[29] Not only did the final parenting orders of 1 August 2018 exhaust all antecedent interim orders, all outstanding applications for parenting orders also merged in the consent orders. (…)

[30] Therefore, the … application filed by the mother in January 2019 and entertained by the primary judge … was incompetent for two reasons.

[31] First, it sought the temporary suspension of the interim injunction and the interim airport watch list order … when those orders no longer existed. (…)

[32] Second, the mother’s application was filed in the form of an Application in a Case, befitting an application for interlocutory or procedural orders, and was apparently set down for hearing in a duty list in the mistaken belief that only interim orders were sought and would be made. The error was perpetuated by the primary judge, who entertained it as an interim application and later described the appealed orders as ‘interlocutory’ in the reasons for judgment delivered when dismissing the father’s stay application. ( … )” B

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.

Gazetted: 6 June 2019, Gazette No. 26 of 2019 National Electricity (South Australia) (Retailer Reliability Obligation) Amendment Act 2019 (No 10 of 2019) Commencement: 1 July 2019 Gazetted: 13 June 2019, Gazette No. 27 of 2019 Construction Industry Training Fund (Board) Amendment Act 2019 (No 2 of 2019) Commencement: 20 June 2019 Gazetted: 20 June 2019, Gazette No. 29 of 2019 Office for the Ageing (Adult Safeguarding) Amendment Act 2018 (No 34 of 2018) Commencement ss 4; 5; 6 (but only insofar as it inserts Part 3, Part 4 Divisions 1 to 5 (inclusive), Part 5 Division 1, Part 6 and Part 7 into the Office for the Ageing Act 1995); 7; Schedule 1: 1 October 2019

Commencement s 6 (insofar as it inserts Part 4 Division 6 and Part 5 Division 2 into the Office for the Ageing Act 1995): 1 October 2020 Gazetted: 20 June 2019, Gazette No. 29 of 2019 Planning, Development and Infrastructure Act 2016 (No 14 of 2016) Commencement ss 4; 49; 50; 51(1)(b) and (c); 53; 64 - 66; 67(1) to (3); 68; 69; 75; 76; 78 - 81; 89 - 100; Parts 7 – 12; Parts 14 to 19; ss 232; 234; 235; 237; 239; 240; Sch 6 clauses 1, 17, 18, 24; Sch 8 clauses 4, 21(3), 22, 27-29, 32(1), 35, 37-40: 1 July 2019 Gazetted: 27 June 2019, Gazette No. 30 of 2019 South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2019 (No 8 of 2019) Commencement: 1 July 2019 August 2019 THE BULLETIN

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GAZING IN THE GAZETTE

Gazetted: 27 June 2019, Gazette No. 30 of 2019 South Australian Public Health Act 2011 Commencement ss 96B and 96C(1)(b): 1 January 2020 Gazetted: 27 June 2019, Gazette No. 30 of 2019 Statutes Amendment (Planning, Development and Infrastructure) Act 2017 (No 5 of 2017) Commencement Parts 5; 9; 13 and 22: 1 July 2019 Gazetted: 27 June 2019, Gazette No. 30 of 2019 Statutes Amendment (Screening) Act 2019 (No 9 of 2019) Commencement except Part 4: 1 July 2019 Gazetted: 27 June 2019, Gazette No. 30 of 2019

ACTS ASSENTED TO Supply Act 2019, No. 12 of 2019— Gazetted: 27 June 2019, Gazette No. 30 of 2019

APPOINTMENTS Auxiliary Judicial Officers for a period commencing on 1 July 2019 and expiring on 30 June 2020 Auxiliary Judge of the Supreme Court of South Australia Michael David Bruce Malcolm Debelle Geoffrey Louis Muecke Paul John Rice Paul Vincent Slattery Wayne Cromwell Chivell Sydney William Tilmouth Brian Patrick Gilchrist Auxiliary Master of the Supreme Court of South Australia Peter John Norman John Stephen Roder Auxiliary Judge of the District Court of South Australia Dean Ernest Clayton Gordon Fraser Barrett Peter Robert Brebner Auxiliary Judge of the Licensing Court of South Australia William David Jennings Auxiliary Judge of the Youth Court of

44 THE BULLETIN August 2019

South Australia Stephen Kevin McEwen Joanne Tracey Auxiliary Master of the District Court of South Australia Mark Nicholas Rice Martin Keith Auxiliary Magistrate of South Australia and Auxiliary Magistrate of the Youth Court of South Australia

Jonathan Romilly Harry Peter Yelverton Wilson Kym Boxall Gregory Ronald Alfred Clark Theodore Iuliano Clive William Kitchin Auxiliary Magistrate of South Australia Martin Keith Gazetted: 27 June 2019, Gazette No. 30 of 2019

REGULATIONS PROMULGATED (3 JUNE 2019 – 2 JULY 2019) REGULATION NAME REG NO. DATE GAZETTED Bills of Sale Act 1886 Development Act 1993 Legal Practitioners Act 1981 Rail Safety National Law (South Australia) Act 2012 Disability Services Act 1993 Supported Residential Facilities Act 1992 Housing Improvement Act 2016 Mines and Works Inspection Act 1920 Mining Act 1971 Opal Mining Act 1995 Petroleum and Geothermal Energy Act 2000 Retirement Villages Act 2016 South Australian Public Health Act 2011 Food Act 2001 Controlled Substances Act 1984 Tobacco and E-Cigarette Products Act 1997 Associations Incorporation Act 1985 Authorised Betting Operations Act 2000 Births, Deaths and Marriages Registration Act 1996 Building Work Contractors Act 1995 Burial and Cremation Act 2013 Conveyancers Act 1994 Co-operatives National Law (South Australia) Act 2013 Expiation of Offences Act 1996 Gaming Machines Act 1992 Land Agents Act 1994 Liquor Licensing Act 1997 Lottery and Gaming Act 1936 Partnership Act 1891 Plumbers, Gas Fitters and Electricians Act 1995 Relationships Register Act 2016 Second-hand Vehicle Dealers Act 1995 Security and Investigation Industry Act 1995 Fines Enforcement and Debt Recovery Act 2017 Freedom of Information Act 1991 Labour Hire Licensing Act 2017 Land and Business (Sale and Conveyancing) Act 1994 South Australian Civil and Administrative Tribunal Act 2013 State Records Act 1997 Sheriff's Act 1978 Environment, Resources and Development Court Act 1993 District Court Act 1991 Supreme Court Act 1935 Magistrates Court Act 1991 Youth Court Act 1993 Coroners Act 2003 Evidence Act 1929 Public Trustee Act 1995 Fees Regulation Act 1927 Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 Summary Offences Act 1953 SACE Board of South Australia Act 1983 Adoption Act 1988 Botanic Gardens and State Herbarium Act 1978 Crown Land Management Act 2009

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GAZING IN THE GAZETTE

REGULATION NAME

REG NO.

DATE GAZETTED

Heritage Places Act 1993 Historic Shipwrecks Act 1981 Marine Parks Act 2007 National Parks and Wildlife Act 1972 Native Vegetation Act 1991 Natural Resources Management Act 2004 Water Industry Act 2012 Livestock Act 1997 Fisheries Management Act 2007 Plant Health Act 2009 Primary Produce (Food Safety Schemes) Act 2004 Primary Produce (Food Safety Schemes) Act 2004 Primary Produce (Food Safety Schemes) Act 2004 Primary Produce (Food Safety Schemes) Act 2004 Controlled Substances Act 1984 Pastoral Land Management and Conservation Act 1989 Industrial Hemp Act 2017 Police Act 1998 Firearms Act 2015 Fire and Emergency Services Act 2005 Hydroponics Industry Control Act 2009 Aboriginal Heritage Act 1988 Development Act 1993 Local Government Act 1999 Private Parking Areas Act 1986 Heavy Vehicle National Law (South Australia) Act 2013 Motor Vehicles Act 1959 Road Traffic Act 1961 Fees Regulation Act 1927 Environment Protection Act 1993 Radiation Protection and Control Act 1982 Land Tax Act 1936 Petroleum Products Regulation Act 1995 Dangerous Substances Act 1979 Dangerous Substances Act 1979 Employment Agents Registration Act 1993 Explosives Act 1936 Fair Work Act 1994 Work Health and Safety Act 2012 Road Traffic Act 1961 Motor Vehicles Act 1959 Heavy Vehicle National Law (South Australia) Act 2013 Rail Safety National Law (South Australia) Act 2012 Work Health and Safety Act 2012 Natural Resources Management Act 2004 Environment Protection Act 1993 Ageing and Adult Safeguarding Act 1995 Public Sector Act 2009 Construction Industry Training Fund Act 1993 Emergency Services Funding Act 1998 Liquor Licensing Act 1997 Volunteers Protection Act 2001 Criminal Law Consolidation Act 1935 Health Care Act 2008 Water Industry Act 2012 Health Practitioner Regulation National Law (South Australia) Act 2010 Dangerous Substances Act 1979 National Electricity (South Australia) Act 1996 National Electricity (South Australia) Act 1996 Planning, Development and Infrastructure Act 2016 Planning, Development and Infrastructure Act 2016 Planning, Development and Infrastructure Act 2016 Planning, Development and Infrastructure Act 2016 Independent Commissioner Against Corruption Act 2012 Road Traffic Act 1961 Road Traffic Act 1961 Road Traffic Act 1961 Motor Vehicles Act 1959 Controlled Substances Act 1984 Child Safety (Prohibited Persons) Act 2016 Child Safety (Prohibited Persons) Act 2016 Supreme Court Act 1935

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Auxiliary Master of the District Court of South Australia for a period commencing on 31 August 2019 and expiring on 30 June 2020 Peter John Norman Gazetted: 27 June 2019, Gazette No. 30 of 2019 Auxiliary Magistrate for a period commencing on 1 July 2019 and expiring on 18 January 2020 Barbara Ellen Johns Gazetted: 27 June 2019, Gazette No. 30 of 2019 For Premier

RULES Magistrates Court Rules 1992 Amendment 74 Gazetted: 20 June 2019, Gazette No. 29 of 2019 Magistrates Court (Civil) Rules 2013 Amendment 24 Gazetted: 27 June 2019, Gazette No. 30 of 2019

FIRE & EXPLOSION INVESTIGATION Over 6 years forensic experience on behalf of the Insurance Industry and Legal Profession throughout Australia.

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August 2019 THE BULLETIN

45

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Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants.

LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding.

LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants.

LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied.

For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

46 THE BULLETIN August 2019

CONSULTING ACTUARIES

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems.

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All information divulged to the LawCare counsellor is totally confidential. Participation by the legal practitioner or family member is voluntary.

To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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