President’s Message

Active steps being taken to address harassment, bullying & discrimination

TIM WHITE, PRESIDENT

There have been considerable negative comments in the media about the profession of late. I am sure, like me, you are all disappointed when you read or hear these detrimental public comments being made about our profession. Lawyers are held to a high standard of conduct and rightly so.

The allegations against Dyson Heydon AC QC have been reported or referenced in the media almost daily over the last month or more. The extent of sexual harassment in the legal profession has been documented in multiple surveys conducted by a variety of international and Australian based organisations over recent years. Some of those surveys include ones undertaken by the Law Society of SA, International Bar Association, and Law Council of Australia (LCA), as well as the Human Rights Commission’s inquiry in to sexual harassment in all employment sectors across Australia. The findings of all of them are clear that sexual harassment exists in the legal profession.

What are we doing about it as a profession? Ongoing compulsory education and training will be a key to continuing to alter people’s conduct in the workplace. Many initiatives, programmes and guidelines have been implemented, but more work locally and nationally remains to be done.

This of course not only impacts on those currently working in the law but also affects those young students at schools who are considering what career path they wish to take. Don’t we want young South Australians aspiring to study law?

The Society has implemented various initiatives to assist with preventing bullying, discrimination and harassment occurring in our local profession. Education and training is an ongoing priority and a focus of the Society and your Council. I thought it would be helpful if you were informed and reminded about just some of the initiatives undertaken over the last couple of years alone by the Society on these aspects. In the last year or so it has included the following: Ongoing requests to LPEAC that bullying, discrimination and harassment be mandated as a compulsory CPD unit, to be completed annually. We have recently been informally advised that LPEAC has agreed to this request and will now consider necessary amendments to its Rules. Produced and adopted a Policy relating to bullying, discrimination and harassment in August 2018. Conducted an extensive survey on bullying, discrimination and harassment of the profession in August 2018. Formed a bullying, discrimination and harassment working Group in September 2018. Developed and distributed Guidelines on bullying, discrimination and harassment, including a No Tolerance statement, in November 2019. Created a section of the Society webpage specifically on bullying, discrimination and harassment, which provides detailed information, resources and contact details for external agencies. Issued multiple media releases and public media statements condemning bullying, discrimination and harassment and promoting workplace cultures that are inclusive and respectful to all. Issued numerous updates and notes to the profession via InBrief, Advocacy Notes and the Bulletin. Conducted many CPDs, including having presenters and experts external to the profession. Discussed with heads of jurisdiction, the Attorney General and the Bar Association measures to address bullying, discrimination and harassment in the profession. Investigated and made submissions on the Modern Award for early career lawyers in private practice, which is being investigated by the LCA. Included specific actions relating to bullying, discrimination and harassment to be taken in the Society’s Strategic Plan. • Established various support services including, the Young Lawyers’ Support

Service, the Professional Advice Service and the LawCare Counselling Service. • Provided submissions to the LCA, including to the LCA discussion paper on addressing sexual harassment in the legal profession in August 2019. • Voted in support of the LCA’s current extensive work on this in a recent directors meeting in June 2020. • Participated in the LCA sexual harassment roundtable discussion in

July 2020. • Published the recent statements and media releases by the LCA, which also indicate the ongoing work being undertaken.

In the immediate future the Society is also working closely with the LCA, which is taking a National approach to bring about change and have consistency of approach across the profession. Some of the measures which were agreed upon at the LCA’s recent RoundTable include: • Advocating the proposed amendments to the Sex Discrimination Act • Advocating key recommendations of the Australian Human Rights

Commission’s Respect@Work report • Progressing a number of measures to drive cultural change in the legal profession, including the facilitation of uniform policies and approaches to sexual harassment, training, and further consideration of the relevant professional conduct rules.

There remains many additional improvements that our great profession can make with regards to recognising, eliminating and responding to bullying, discrimination and harassment in the workplace. I thought these words of psychiatrist R.D Laing summarise the horizon ahead of us all well:

“The range of what we think and do is limited by what we fail to notice. And because we fail to notice that we fail to notice there is little we can do to change until we notice how failing to notice shapes our thoughts and deeds.” B

CIVIL LIBERTIES IN THE FACE OF DISASTER

DR MICHAEL EBURN, HONORARY ASSOCIATE PROFESSOR ANU COLLEGE OF LAW

The 2020 COVID-19 Pandemic has made clear the fragile nature of many of the liberties we take for granted. This article will briefly review what we know about the power of government to impose restrictions during a public health emergency and then compare and contrast the use of emergency during more traditional emergencies such as fire and flood. I argue that traditional emergency managers should not be tempted to try and copy the use of directions backed with the threat of force and penalties to ensure compliance but should, instead, continue to focus on community education and building resilience.

THE PANDEMIC

A unique feature of the pandemic response has been the lead taken by the Commonwealth. This crisis has required actions that are relevant to the Commonwealth’s responsibilities for “trade and commerce with other countries…”, “quarantine”, “immigration and emigration”, and “external affairs”. 1 The need for economic stimulus and protection for those that have lost jobs also trigger the Commonwealth’s power to provide allowances and social security. 2 Even though the Commonwealth has appeared to lead the response, the heavy lifting on domestic restrictions has necessarily been left to the states and territories.

In South Australia, orders have been made under the Emergency Management Act and the Public Health Act 2011 (SA) to restrict movement, public gatherings and health services, in particular, access to aged care health facilities. 3 The power to make these declarations and orders has not come out of the blue. Even if there has had to be some legislative change, 4 the presence of the Emergency Management Act and the Public Health Act demonstrate planning for an emergency. Legislation was in place with the means to empower relevant authorities. When the pandemic came, they had the resources required to act. One can only imagine the health and political consequences if governments had failed to act to limit the disease because they did not have plans and legislation in place and had to rush through legislation.

OTHER EMERGENCIES

The powers that have been exercised, particularly those under the Emergency Management Act are not unique for COVID-19 or pandemics. The Emergency Management Act can apply in all manner of emergencies. An emergency is: … an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause— a. the death of, or injury or other damage to the health of, any person; or b. the destruction of, or damage to, any property; or c. a disruption to essential services or to services usually enjoyed by the community; or d. harm to the environment, or to flora or fauna; 5

An emergency may be declared to be a “major incident”, a “major emergency” or a “disaster” 6 depending on the likely scale of its impact and the capacity of the emergency management agencies to cope with that impact.

In response to a declared emergency the State Coordinator or an officer authorised by him or her may take action including taking control of an area including private buildings and assets, causing people to be removed. He or she may direct or prohibit the movement of persons, animals or vehicles, require people to be isolated and undergo decontamination, direct a person to undergo medical observation, examination or treatment (including preventative treatment), require people to stop work or close premises and cut off the supply of electricity, gas or water to the affected area. 7 That is an extensive list of power that can have dramatic consequences

This sort of authority is not limited to declared emergencies. The officer in charge of the response by the Metropolitan or Country Fire Service or the State Emergency Service to a fire, flood or other emergency, has similar powers. 8

Again, the presence of legislation to authorise such action represents good planning, ensuring that agencies have the powers they need and can plan for and practice their exercise. Some may be surprised that the powers are so widespread and can be exercised by officers down to brigade or unit level but it is the first responding fire brigade or SES unit that must try and make sense of the scene at any emergency.

COMPARE AND CONTRAST

What distinguishes the COVID-19 response from other emergencies is the widespread use of orders and declarations with the threat of force and legal enforcement for non-compliance. That is, I suggest, unusual in the fire and emergency services sector even though the legislation does provide for criminal penalties for non-compliance and that reasonable force may be used to secure compliance. In what follows I suggest some possible reasons for that, noting that this is speculation and not supported by research or evidence.

Most people won’t need a lot of persuasion to evacuate if they live in a metropolitan area and the Metropolitan Fire Brigade (the MFB) advise them to evacuate because an apartment in their block, or the house next door is on fire. They will be able to see and hear the fire and selfinterest would suggest taking the action recommended, if not directed, by the MFB.

For brigades in the Country Fire Service (the CFS) the situation is not so clear. Warnings may relate to fires that are yet some distance away so that people may prefer to ‘wait and see’. Prior to the 2009 Black Saturday bushfires in Victoria, the consensus advice was that well prepared properties can be defended. People should either ‘prepare, stay and defend or leave early’ on days of severe fire weather –what became known as ‘stay or go’. That simple phrase – ‘stay or go’ – was subject to criticism by the 2009 Victorian Bushfires Royal Commission and that has led to a shift in response agencies to encourage everyone to leave particularly on days of catastrophic fire weather. But it is still the case that homes can be defended, and people do want to stay. People can be ordered to evacuate but enforcing that is difficult. Having firefighters or police forcibly removing people from their property takes away resources from firefighting and other aspects of the emergency response.

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Following fires in Western Australia, former Federal Police Commissioner Mick Keelty queried the measure of success in firefighting. No lives were lost because of an active evacuation policy but more homes would have been saved if people had been allowed to stay and defend. Requiring people to leave was inconsistent with the national policy on developing resilient communities as it did not allow people to assess their own risk and to take responsibility for their own risk. 9

In 2019-2020 during bushfires across all of eastern Australia (including South Australia) the NSW Rural Fire Service “ordered” the evacuation of areas of the NSW south coast. In law however these were not orders, but an advice or request. 10

Fire and emergency services have extensive powers that are important at the scene –to close a road at a fire or accident and to require people to leave an immediate danger area – but they are, I suggest, less used during major emergencies. In those cases the response aims to be cooperative and negotiated, ideally before the event. Local emergency management plans as well as community education and training to enhance community resilience to allow people to make their own, but informed decision has been the approach of the fire and emergency services community. Orders and the threat of force are unlikely to be effective and are inconsistent with the policy goals set out in the National Strategy for Disaster Resilience. 11

CONCLUSION

Citizens and some emergency managers may be surprised to learn that the sort of powers that have been used during COVID-19 can be used during other emergencies, and some may be tempted to use those powers –to flex their legal muscle – in light of the success and compliance during COVID-19. It is beyond the scope of this paper to fully explore the differences between the disasters, but it is hoped that fire and other emergency managers, informed by years of experience and well established research 12 will not move from cooperative responses to a policy of direction and control backed with the threat of force or fines. B

Endnotes 1 Australian Constitution ss 51(i), (ix), (xxvii) and (xxix). 2 Ibid s 51(xxiiiA). 3 Details of the Emergency Declaration and associated Directions can be found online at https://www.covid-19.sa.gov.au/emergencydeclarations. 4 See COVID-19 Emergency Response Act 2020 (SA);

COVID-19 Emergency Response (Bail) Amendment

Act 2020 (SA); COVID-19 Emergency Response (Further Measures) Amendment Act 2020 (SA). 5 Emergency Management Act 2004 (SA) s 3 (definition of ‘emergency’). 6 Ibid ss 21, 22 and 23. 7 Ibid s 25. 8 Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118. 9 M.J. Keelty, A Shared Responsibility: The Report of  the Perth Hills Bushfire February 2011 Review (Western Australia, 2011). 10 Michael Eburn, ‘NSW Tourist Exclusion Zone – advice or direction?’ (January 9, 2020) https:// emergencylaw.wordpress.com/2020/01/09/nswtourist-exclusion-zone-advice-or-direction/. 11 https://www.homeaffairs.gov.au/emergency/ files/national-strategy-disaster-resilience.pdf 12 Led first by the Bushfire Cooperative Research

Centre and then the Bushfire and Natural Hazards

Cooperative Research Centre. The author discloses that he has been the recipient of research funding from both these Research Centres.

Scrutinising South Australia's COVID-19 laws: are we up to the job?

DR SARAH MOULDS, SENIOR LECTURER IN LAW, UNIVERSITY OF SOUTH AUSTRALIA

In response to the complex and potentially devastating threat posed by COVID-19, Parliaments around Australia have transferred unprecedented powers to executive governments and their agencies, 1 often with the full support of the communities they represent. In South Australia, we have seen the provision of broad discretionary powers to law enforcement officers to enforce physical distancing measures and quarantine, 2 new powers for authorised officers to detain vulnerable people for weeks at a time with only limited access to review 3 , and the potential for police commissioners and their officers to break the law if that is what it takes to respond to the health crisis. 4 We have also seen unprecedented changes to commercial and residential leases and to a range of other statutory provisions, including those relating to the execution of legal documents. At the federal level, we have seen bans to prevent Australians from leaving the country, 5 the Minister for Health being vested with the power to ‘issue any direction to any person’ in order to ‘prevent or control’ the spread of COVID-19 in Australia 6 and the Minister for Families and Social Services granted the power to change “any qualification criteria” and “any payment rate” for any social security payment without seeking approval from Parliament. 7

By any measure, this constitutes an extraordinary transfer of power away from the parliament towards the executive. Perhaps these extraordinary powers were and will continue to be necessary. Perhaps their potential impact on the rights of citizens and on important oversight role the parliament plays within our constitutional democracy is proportionate to the risk posed by COVID-19 to the lives, health and economic security of our community. Legislators did not pause long to contemplate those questions. These laws were passed within days, 8 sometimes hours, 9 with limited safeguards and a heavy reliance on sunsetting provisions some of which are dependent on the pandemic being officially called to an end.

In South Australia, the opportunity for independent scrutiny of the necessity, proportionality and unintended impacts of these laws was particularly limited. Given the speed at which the laws were introduced and passed, and the considerable delegation of law making power to regulations and directives, it was extremely difficult even for those of us who are legally trained to get a handle on what laws were being passed when, and what impact they would have on our lives. In addition, South Australia lacks a number of the structural features present in other jurisdictions that are designed to explain the key features of legislation (such as Explanatory Memoranda) and to highlight their rights impacts (such as Scrutiny of Bills Committees or Human Rights Committees). 10 Our passionate and hardworking non-government sector was generally blind sided by the pace and complexity of these laws, particularly given the other pressing and immediate demands on their attention and services as a result of the pandemic.

In an attempt to fill this scrutiny gap, the South Australian Parliament established a special select COVID-19 Committee 11 with similarly broad terms of reference and wide powers to call for public submissions and request information from government. This in fact has become one of the only independent platforms from which to scrutinise the South Australia Government’s response to the COVID-19 pandemic, and it is not yet clear whether the Committee has the capacity to influence the outcome of a policy proposal or fate of a legislative provision. 12 After all, at the end of the day, the most a parliamentary committee can do is publish a report, make recommendations and sometimes, move to disallow a regulation.

As we approach the sunset expiry of many of the emergency provisions enacted in South Australia in response to the pandemic, it has become more important than ever to ensure that some independent body is looking carefully at (a) whether the emergency laws are still needed (b) whether their impact on other public interests or individual rights is justified and proportionate and (c) how and when they are being used in practice. In the context of the South Australian system with its limited structural safeguards for rights protection or legislative security, the legal profession, along with other aspects of civil society, carry a heavy burden when it comes to ‘sounding the alarm’ about the impact and application of these laws.

For example, is it appropriate that managers of residential care facilities continue to have powers to detain people with mental incapacities for up to 28 days? Is it fair for landlords to be barred from increasing rents until September 2020? Would it be useful to preserve the Tribunal’s powers to make orders to avoid homelessness when resolving residential tenancies disputes? Are we comfortable with the Commissioner for Police having very broad powers to issue directives with penalties for non-compliance? How many fines have been issued in response to breaches of social distancing directives, and have any particular communities been targeted? Should the usual requirements around time frames and finalising legal documents be reinstated before the pandemic is officially declared over? These are the critical questions that need to be explored by the COVID-19 Committee and that Committee will depend upon submissions from the public to attract their attention to these types of details.

At the end of the day, the capacity of

special select COVID-19 Committees to have an impact on South Australian law is hard to predict. On the one hand, the COVID-19 Committee could struggle to clearly articulate the scrutiny criteria to be applied to their oversight task or be hamstrung by a lack of adequate resourcing, technical analysis or access to Secretariat expertise. On the other hand, the exceptional political and policy circumstances posed by the COVID-19 pandemic could provide the opportunity for the Committee to experiment with new ways of conducting parliamentary rights scrutiny and new ways of engaging experts, community members and government agencies in its work.

It is too early to see how all of these factors will play out. It may take years to evaluate their role and influence. But it is clear from the mere establishment of these committees that rather than looking to the courts to keep watch on extraordinary executive power, we want groups within the parliament to play that role. This puts the onus on us to raise the alarm about these extraordinary laws, even if we cannot attend Parliament House in person. B

Endnotes 1 Andrew Edgar, Law-making in a crisis:

Commonwealth and NSW coronavirus regulations, on AUSPUBLAW (30 March 2020) https:// auspublaw.org/2020/03/law-making-in-a-crisis:- commonwealth-and-nsw-coronavirus-regulations. 2 See e.g. Emergency Management (Gatherings

No 2) (COVID-19) Direction 2020 (SA). 3 See e.g. COVID-19 Emergency Response Act 2020 (SA) Schedule 1. 4 See e.g COVID-19 Emergency Response Act 2020 (SA) Schedule 2. 5 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements)

Determination 2020 (Cth) (25 March 2020). 6 Biosecurity Act 2015 (Cth) s478. 7 Coronavirus Economic Response Package

Omnibus Bill 2020, Schedule of the amendment made by the Senate (22 March 2020) https://parlinfo.aph.gov.au/parlInfo/search/ display/display.w3p;query=Id%3A%22legislation 8

9

10

11

12 %2Fsched%2Fr6521_sched_473e609d-0c5c46e1-bdea-a8eacea648ca%22https:/parlinfo. aph.gov.au/parlInfo/search/display/display. w3p;query=Id%3A%22legislation%2Fsched %2Fr6521_sched_473e609d-0c5c-46e1-bdeaa8eacea648ca%22. Howard Maclean and Karen Elphick, COVID-19 Human Biosecurity Emergency Declaration Explainer, Parliamentary Library, Canberra, (19 March 2020, updated 27 March 2020) <https://

www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_ Library/FlagPost/2020/March/COVID-19_ Biosecurity_Emergency_Declaration>.

See e.g. COVID-19 Emergency Response Act 2020 (SA). Sarah Moulds and Laura Grenfell, ‘Youth treatment orders bill highlights ad hoc approach to rights-scrutiny of bills’, (2019) 41(4) Law Society of South Australia Bulletin, 36. This Committee was appointed on 8 April 2020 by the Legislative Council. See Parliament of South Australia, Committees Website, ‘Committee Details’ https://www.parliament. sa.gov.au/en/Committees/Committees-Detail (accessed 24 April 2020). See e.g. John Halligan, ‘Parliamentary Committee Roles in Facilitating Public Policy at the Commonwealth Level’ (2008) 23(2) Australasian Parliamentary Review 135.

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Supreme Court decision highlights the pitfalls of raising money for charitable purposes

DR PHILIP RITSON, COLLEGE OF BUSINESS, GOVERNMENT AND LAW, FLINDERS UNIVERSITY

On 25 May, 2020, Justice Slattery of the New South Wales Supreme Court delivered a judicial advice In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald & Or. 1 That advice responded to an application by the trustees of the NSW Rural Fire Service & Brigades Donations Fund (RFS Fund) for the Court’s advice or direction pursuant to s 63 the Trustee Act 1925 (NSW). The purpose of s 63 of the Trustee Act is to protect trustees. Slattery J explained that should a trustee act “in accordance with the Court’s ‘opinion, advice or direction’ ... the trustee is deemed to have discharged the trustee’s duty as trustee in the subject matter of the application.” 2 What the RFS Fund’s trustees wanted to know was whether they could honour the wishes of many of those who donated to the Fund in the wake of the 2019-2020 bushfire crisis. Slattery J’s answer to that question was essentially no.

BACKGROUND

During the spring and summer of 2019-2020, Eastern Australia suffered some of the worst bushfires in recorded history. Fire destroyed thousands of homes and properties and “countless” animals (both wildlife and livestock) lost their lives. In total, 33 Australians died, including 14 firefighters, whilst many others sustained physical and psychological injuries. 3

On or about 3 January, 2020, the Australian comedian and celebrity Celeste Barber made an appeal on Facebook for donations to assist those affected by the bushfires. Ms Barber wrote, “Please help anyway you can. This is terrifying.” 4 The appeal turned out to be a resounding success. Utilising the services of PayPal Giving Fund Australia, Ms Barber’s appeal raised around $50 million for her nominated charity, the RFS Fund. Ms Barber nominated the RFS Fund primarily because she never expected the appeal to generate as much as it did. Consequently, she did not set up a charitable trust of her own to distribute funds raised. However, posts on Ms Barber’s Facebook page indicated many of those who donated did not want their money spent in New South Wales exclusively. In addition, others wanted their money applied for purposes (animal welfare, rebuilding rural communities, assistance to injured and traumatised firefighters and the like) that potentially fell outside the ambit of the RFS Fund’s trust deed.

The appeal’s success put Ms Barber and the RFS Fund’s trustees in an invidious position. Fifty million dollars is a lot of money and the desires expressed by those who donated it were wideranging and diverse. Unfortunately for all concerned however, Ms Barber did nominate the RFS Fund as the appeal’s intended recipient and the RFS Fund’s trust deed appeared to place severe restrictions on what it could do with the money raised. This is why the trustees made their application to the Supreme Court. The trustees wanted to know if they could resolve their dilemma by: 1. paying money to other charities or rural fire services, whether in New

South Wales or other Australian States or Territories, to assist in providing relief to persons and animals affected by bushfires; 2. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting; 3. providing: a. physical health training and resources, 4.

b. mental health training and resources, or c. trauma counselling services, to volunteer firefighters (as defined in Rural Fires Act, [5] s 8), who require them in connection with performing the functions of the New South Wales Rural Fire

Service, as defined by Rural Fires

Act, s 9; or setting up or contributing to a fund to meet the costs for volunteer rural firefighters, as defined in Rural Fires Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades, established under the Rural Fires Act. 6

DECISION

The donors’ money actually passed through two trusts. The first trust was the PayPal Giving Fund. When donors made their payment to PayPal, it held those donations on trust where the payment became subject to the PayPal Giving Fund’s trust deed and any binding commitments entered into by this Fund. Whilst this trust deed and those commitments accord the PayPal Giving Fund’s trustees some discretion as to which ‘Eligible Charity’ they might ultimately direct a donation to, in this case there should have been in little doubt the donors’ minds that the recommended (or intended) destination for their donation would be the RFS Fund. Slattery J explained: facility with published terms that stated the effect of the donation. This is so despite what the donors may have hoped or intended might be done with the money. The donors should be taken to have intended to make the payment to the PayPal Giving Fund and should be taken to have intended that it be received according to the published terms. 7

When PayPal passed the money onto the RFS Fund, therefore, it did so in compliance with what Slattery J characterised as “a binding agreement” between the donor and PayPal that the RFS Fund would be the ultimate recipient of the donation. 8

Once PayPal forwarded the money collected onto the RFS Fund it became subject to the RFS Fund’s trust deed. Any wishes Ms Barber or the donors expressed as to what the RFS Fund should do with that money had become an irrelevance by this stage. Slattery J noted:

The various public and perhaps private statements made by Ms Barber or any of the donors do not bind the [RFS Fund’s] trustees’ application of the funds that they have received from the PayPal Giving Fund. The terms of the RFS Trust Deed that establishes the RFS Fund binds the trustees. 9

Clause 2.3 of the RFS Fund’s trust deed states:

Purpose of Trust

The purpose of the Trust is to pay or apply the income from the Trust Fund, and such parts of the capital from the Trust Fund as the Trustees at any time and from time to time think fit as follows: a. to or for the Brigades in order to enable or assist them to meet the costs of purchasing and maintaining fire-fighting equipment and facilities, providing training and resources and/ or to otherwise meet the administrative expenses of the Brigades which are associated with their volunteer-based fire and emergency service activities; b. for Authorised Investments which are consistent with carrying out the purpose in paragraph (a) above; c. to meet the reasonable costs of the current and continuing operation and management of the Trust. 10

Slattery J observed, “The purpose of the RFS Fund is achieved through the maintenance of a ‘Gift Fund.’” Clause 3.3 of the Trust Deed places the following limits on the use of the Gift Fund.

Limits on use of Gift Fund

The Trustees must use the following only for the Purpose of the Trust: a. all gifts and contributions made to the

Gift Fund;

b. any money or Property received by the

Trustees in connection with those gifts and contributions.

No payments from or distributions of the Gift Fund may be made directly or indirectly by the Trustees at any time otherwise than in accordance with this Deed. 11

Ultimately, the interpretation of clauses 2.3 and 3.3 determined the outcome in this matter.

Slattery J consulted the Rural Fires Act to flesh out the meaning of clause 2.3(a) of the RFS Fund’s trust deed. He conceded that the RFS Fund’s primary purpose was largely preventative rather than ameliorative.

The language of clause 2.3 itself and the defined functions of “brigades” under the Rural Fires Act create their own limits on what payments the trustees can make in this direction. The trustees submit, these purposes are generally not directed to ... ameliorating the consequences of fires. To the extent Ms Barber identified using the money for the purpose of preventing future fires and resourcing the brigades, to that end, the purposes are permissible. But purposes which are directed to ameliorating the consequences of the fires, are more problematic. 12

Slattery J went on to note:

The trust purposes do, importantly, include payments to brigades established under the Rural Fires Act ‘to enable or assist them to meet the costs of providing ... resources.” In the Court’s view, “resources” includes human as wellas financialresources andrefers to more than physicalitems such as “fire-fighting equipment andfacilities.” 13

This inclusion of firefighters within the meaning of clause 2.3(a)’s use of the word “resources” allowed Slattery J to respond to the four questions posed by the RFS Fund’s trustees as follows: • paying money to other charities or rural fire services, whether in NSW or the other Australian States and Territories, to assist in providing relief to persons and animals affected by bushfires.

Answer: No.

setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting. Answer: Yes. Providing physical health training and resources; mental health training and resources; or trauma counselling services to volunteer firefighters as defined in s 8 of the Rural Fires Act, who require them in connection with performing the functions of the NSW Rural Fire Service, as defined by s 9 of the Rural Fires Act. Answer: Yes. setting up or contributing to a fund to meet the costs for volunteer rural firefighters (as defined in s 8 of the Rural Fires Act) to attend and complete courses that improve skills related to the volunteer-based fire and emergency service activities of the Brigades, as defined in clause 1.1 of the RFS Trust Deed. Answer: Yes. 14

Slattery J concluded: Some donors may have intended or hoped that the money they donated would be used for purposes beyond those which the Court has advised are permissible. Despite the trustees’ wish to honour those intentions or hopes the law provides principles that ensure a degree of certainty in the application of trust funds including charitable trust funds and the Court has applied these principles in giving its advice in these reasons. 15

CONCLUSION

This matter illustrates the problems that can arise when a publicly spirited individual acts spontaneously in response to a disaster and decides to help by launching an appeal. No doubt, it would have been better if Ms Barber sought legal advice about the RFS Fund’s trust deed before launching her appeal. Nevertheless, her sense of urgency precluded such a course of action and even she could not have foreseen her appeal would generate as much as it did. Consequently, there is little reason to believe a similar confusion over the suitability of an appeal’s nominated charity could not arise either inside or outside New South Wales in the future. If such confusion does arise, most jurisdictions (South Australia included) accord the trustees of the charitable trust nominated the right to apply to a court for directions to resolve “any reasonable doubt” that might arise as to their trust’s purposes. 16

Perhaps the most significant aspect of the decision is the confirmation that ultimately charitable trusts remain bound by the terms their trust deeds. Trusts are common in the charitable sector and whilst their trust deeds might frustrate their donors’ intentions on occasion, those deeds play an important role in a charitable trust’s governance by preventing misappropriation. Trust deeds define the purposes for which the trustees can expend the funds entrusted to them. In so doing, they preclude other purposes. This act of preclusion stops the trustees applying those funds for whatever purpose they, wealthy donors or anyone else in a position to exert an influence over them see fit. The courts, therefore, must enforce these trust deeds to ensure charitable trusts pursue their legitimate purposes. B

Endnotes 1 [2020] NSWSC 604 (25 May 2020). 2 Ibid at [7]. 3 Ibid at [14]. 4 Ibid at [15]. 5 1997 (NSW). 6 Idid at [9]. 7 In the matter of the New South Wales Rural Fire

Service & Brigades Donations Fund (n 2) at [58]. 8 Ibid at [29]. 9 Ibid at [60]. 10 Ibid at [38]. 11 Ibid at [40]. 12 Ibid at [72]. 13 Ibid at [73]. 14 Ibid at [83]. 15 Ibid at [84]. 16 H. A. J. Ford and I. J. Hardingham, Trusts:

Commentary and Materials (Law Book Company, 6th ed, 1990) 641. See: Trustee Act 1936 (SA) s 91 for example.

CAN AN EMERGENCY EVER JUSTIFY CRIMINAL CONDUCT? THE COMMON LAW DEFENCES OF NECESSITY AND DURESS

JAMES MARCUS, BARRISTER, LEN KING CHAMBERS AND STEPHEN RANIERI, SOLICITOR, CRIMINAL LAW COMMITTEE

One of the underlying philosophies of the criminal law is the protection of the person, their property, and for the regulation of the running of society to prescribe the outer limits of acceptable conduct within a just and democratic society. Laws may ban specific actions such as assaulting others or stealing their property. Laws can control how one may carry out actions such as through the Australian Road Rules or the Corporations Act. Laws can set limits such as fish bag limits and, in some circumstances, compel action such as voting.

However, there exist many circumstances when the commission of a prohibited act or the failure to carry out a compelled act does not amount to a crime. Boxers can lawfully agree to fight, trespassers can be evicted with force, political protestors can be offensive and, in certain circumstances, other overtly criminal acts can be committed in an emergency.

The common law has long recognised criminal conduct may be excused in circumstances where an accused person is faced with a sudden and extreme emergency or faced with serious threats of harm from a third party. In South Australia the respective defences of necessity and duress remain available as a complete defence to a person charged with any statutory or common law offence, with the exception of murder and in the case of duress also treason.

Necessity has been described as having a “tenuous existence” in our common law, 1 the availability of which is subject to strict application and only in limited circumstances. 2 The defence rests upon the premise that strict obedience to the criminal law may not be expected in certain circumstances. As with most defences, once raised by an accused person, the prosecution must disprove the defence beyond reasonable doubt.

The elements of necessity were recently stated by the Court of Criminal Appeal in Bayley v Police. To avail oneself of the benefit of the defence an accused person must believe on reasonable grounds the commission of the crime was necessary in all the circumstances in order to remove a threat of death or serious injury to themselves or another. The test has both objective and subjective elements: 1. It must be reasonably possible the defendant believed on reasonable grounds there was a threat of death or serious injury, to themselves or another, and the commission of the offence was necessary to remove the threat. Viewed objectively there must have been no reasonable alternative course of action open to the defendant. 2. The defendant must honestly believe what they did was necessary to avoid the threatened peril. This will not be met if the conduct was disproportionate to the peril. A response is not proportionate if there are reasonable grounds for believing there were alternative (noncriminal) courses of action available. 3. The response must be proportionate to the danger and cannot go further.

In other words, the offence committed cannot be worse than the offence avoided. 4. The threat of peril must be imminent and operative in the mind of the defendant.

The defence of duress is at heart a variant of the defence of necessity, that is the criminal act was necessary to avoid the threat of death or serious injury to themselves or another arising from a person. The defence exists at common law and even in jurisdictions in which the criminal law has been codified. 3

As with necessity, the defence of duress is available to both statutory and common law offences. To avail oneself of the defence the defendant must apprehend a threat and through the threat be induced to engage in a criminal act. However, the threat must not arise as a consequence of voluntary association with criminals. The classic statement of the defence appears in R v Hurley, and again contains objective and subjective elements: 4 1. The accused was required to do the charged act under threat or death or grievous bodily harm. 2. The threat is such that a person of ordinary firmness would likely yield to the threat. 3. The threat was present and imminent. 4. The defendant reasonably apprehended the threat would be carried out.

5. The threat induced the defendant to commit the offence. 6. The crime was not murder or “any other crime so heinous as to be excepted from the doctrine”. 7. The defendant did not expose himself to its application. And, 8. The defendant had no means to safely prevent the execution of the threat.

Whilst there remains some debate over whether duress applies only to the criminal act demanded by the source of the threat, or some other equivalent or lesser offence, it is clear it is specifically excluded from applying to murder and treason.

A famous example of an attempted application of the defence of necessity is the case of R v Didley and Stephens. 5 In 1884 an inshore yacht “Mignonette” sailed from Southampton to Sydney crewed by Dudley, Stephens, Brooks and Parker after being purchased by an Australian lawyer. About 2,600km northwest of the Cape of Good Hope the vessel sank and the crew abandoned ship into a lifeboat. The crew had limited supplies. After 19 days at sea the crew drew lots to choose a victim who was to be killed and eaten to survive. Brooks took no part, but Dudley and Stephens resolved to kill and eat Parker, the 17 year old cabin boy.

Eventually the three remaining seamen were rescued. Dudley and Stephens were charged and convicted of Parker’s murder. The convictions were upheld by the Court of Queen’s Bench on appeal with the Court holding that necessity could not be raised as a defence to murder. Dudley and Stephens were sentenced to death, but as things transpired their sentences were commuted to six months imprisonment.

An interesting counterpoint, in which the killing of a person was held to be lawful in reliance on the defence of necessity was in the English Court of Appeal case of Re A. 6 This case concerned infant conjoined twins Jodie and Mary. The twins each had their own brain, heart and lungs, however Mary’s were insufficient to sustain her such that had she been born solo she would not have survived. The additional strain on Jodie however was slowly killing her. The Court in authorising the surgery, in the knowledge that Mary would inevitably die, pointed to the absence of choice to cause the death of Mary, in carrying out the surgery to save the life of Jodie.

The defences of necessity and duress are old and well established at law, however given the highly proscriptive elements, combined with the requirements of objective reasonableness and proportionality mean the threshold for it to be made out is a high one. For example, in Bayley the court declined the defence in the case of dangerous driving to escape a road rage incident, and in Taiapa the court declined the defence for the smuggling of drugs in light of threats made against family members. However, the defence was made out in the case of an abortion which was illegal at the time. 7 It is hardly surprising then that the court in Bayley noted these defences may only be expected to arise on rare occasions.

What the authorities do however make clear is the defence is highly factually specific and there cannot be any hard and fast rules about what will and will not amount to the defence as the cases of Dudley and Stephens and Re A demonstrate.

In summary, to successfully avail oneself of the defences of necessity and duress, it appears there must be no lawful alternative available and the criminal action must not exceed the danger or threat that it is attempting to avoid. In practice it is likely to require a strong argument of objective reasonableness of the action in response to imminent and realistic danger. It also means not associating with South American gangsters who may ask you to take some headphones in your luggage, and if you are going sailing ensure you pack some extra sandwiches. B

Endnotes 1 Fairall and Yeo, Criminal Defences in Australia (3 rd

2

3 4 5 6 7 Ed, 2005) at 97; R v Rogers (1996) 86 A Crim R 542. Bayley v Police (2007) 99 SASR 413, [53] (Gray J, Sulan and White JJ agreed). Taiapa v The Queen (2009) 240 CLR 95. R v Hurley [1967] VR 526, 543 (Smith J). R v Dudley and Stephens (1884) 14 QBD 273. Re A (Conjoined Twins) [2000] EWCA Civ 254. R v Davison [1969] VR 667.

Closing or widening the gap? The impact of COVID-19 on access to legal services

LEIGH SWIFT, PETER GARDIAKOS & TESSA CARTLEDGE, ADELAIDE LAW SCHOOL

Leigh Swift, Peter Gardiakos and Tessa Cartledge, who have been providing free legal advice to the community at the Magistrates Court Legal Advice Service, explore the impacts of the COVID-19 pandemic on the wider community legal sector, and the particular challenges on access to justice for those in need within the community.

WHAT IS THE PROBLEM?

Seeking legal advice is generally quite expensive and in many cases the cost of legal fees is disproportionate to the amount parties are seeking or the loss they have suffered. This means that without government support or legal aid there is a large access gap between people who can afford legal help and those who cannot. Those who are able to pay for legal services do not adequately represent the majority of people who need assistance from a lawyer. This has created the need for either Government funded legal services or free legal clinics that are privately operated. These kinds of clinics are essential for many people as they provide access to justice to those who would not ordinarily be able to justify this kind of expense. While these clinics are essential it is apparent that they are often underfunded and not utilised to their full potential.

The current COVID-19 pandemic has decreased the ability to provide essential legal services to many, as social distancing and isolation rules have limited the capacity to conduct face-to-face interviews. Professional firms have noted that the circumstances are challenging and unprecedented. 1 While some firms and clinics have simply closed up shop, others have devised creative and safe ways to continue to provide justice access in the midst of the pandemic. Carissa Bosch, Principal Legal Officer of the Family Violence Legal Service Aboriginal Corporation (SA) (FVLSAC) , explained that there is no simple solution - persistence and consistency pays off.

Clinics, including FVLSAC and Community Justice Centres SA (CJC), have expressed that in light of the current COVID-19 pandemic, it is clear that there is a large section of our community that is still currently excluded from justice access. 2 This includes groups such as Indigenous Australians, people with disabilities, elderly people, victims of violence and people living in a regional setting. 3 The current pandemic has been especially challenging for these groups given their existing struggles in accessing justice.

WHY IS IT A PROBLEM?

The current circumstances have generally seen a shift to telephone and video communications. Unfortunately, many people that require the services of legal aid clinics such as FVLSAC and CJC, practically speaking, do not have the capabilities to engage in telephone or video interviews for a variety of reasons.

Ms Bosch highlighted that face-toface interviews are the ultimate way to go, especially for people with trauma – there is simply no substitute. 4 She explained that FVLSAC lawyers and client support workers have continued doing their usual work - providing advice and appearing in court - but some elements have been made more challenging with the loss of face-toface time. One example included attending child protection meetings with clients by telephone. In these situations, they found that when clients start to become elevated and emotional, it is especially difficult to diffuse the situation without the ability to call for a break, as well as not being physically present to try and restore calm. 5 Therefore, lacking any alternatives to interviewing face-to-face during the current pandemic besides the use of technology is problematic. Ultimately, both clients and lawyers/support workers are unable to provide the same quality of service and communication that face-toface interviews offer.

SOLUTION 1 - ADAPT AND CONTINUE INTERVIEWING FACE-TO-FACE

Pros

Charlie Belperio, partner at Belperio Clark Family, Wills & Business Lawyers, suggested some creative ways that their firm has adapted to client interviewing during the COVID-19 pandemic. Mr Belperio has been conducting will-signing meetings outdoors, in the office carpark. He ensures that the desks are appropriately distanced from each other, and that the clients use brand new pens, which they take with them after the meeting. The client attends by themselves, there are no handshakes, and there is ample hand sanitiser available. In most cases, clients have already received will packages via post and are already familiar with the documents, making the physical meeting rather quick. 6 This practise may again have to be revised now coming into the winter months, with the weather now becoming a further obstacle.

Mr Belperio expressed that conducting meetings in this manner has been quite effective, noting that long-standing clients typically have not objected to the revised interview practise. Moreover, elderly clients (who make up a large portion of Mr Belperio’s clientele) are generally not comfortable using technology for their interviews, and have appreciated the firm’s innovative interview technique. Further, using telephone and video calls for legal meetings is not always appropriate, even for younger, more technologically-able clients. This is especially true where meetings concern matters that require a physical signature and/or a witness, making the ability to adapt to the current circumstances and adopt revised face-toface interviewing practises all the more important. 7

In a legal-aid/clinic setting, many clients may not have access to a telephone, computer or internet, or alternatively they may be elderly, disabled or have other factors impeding their ability to use technology, making face-to-face interviews likely to be their only option. Further, in circumstances of domestic violence it may be genuinely unsafe for clients to conduct a technology based interview. Consequently, adapting to the current situation and continuing to interview clients face-to-face has many benefits and, where possible and safe, is preferable. For example, Catherine McMorrine, Chief Executive Officer of CJC, has opted to move the majority of her staff to a work-from-home capacity. This freed up private spaces in the office so that face-to-face client meetings could be conducted in exceptional circumstances. This allowed both for meetings to still occur and for social distancing requirements to be adhered to. 8

Cons

Unfortunately, clients with underlying health issues have tended to delay their appointments out of fear of physically attending in the current circumstances. Whilst for logistical or other reasons some have also opted to not participate in telephone interviews. 9 Naturally, situations such as these can drag out legal matters considerably, inconveniencing both the client and the firm/clinic.

Confidentiality is also something to be mindful of when conducting interviews outside of the traditional office setting. 10 In implementing socially distanced faceto-face meetings, especially outdoors, one should be mindful of being appropriately spread out from passersby so as to prevent breaching confidence.

Ms Bosch explained that it can be challenging for people to access a family violence legal service, and often people don’t want to be seen accessing it, particularly in small communities. 11 This makes the use of public spaces to continue conducting face-to-face interviews challenging, as would also likely be the case with many other legal aid clinics. Further, as opposed to more well-resourced private firms, community clinics may not have the resources available to adapt their practise to continue to conduct face-to-face interviews in the manner suggested by Mr Belperio.

While clinics and firms are able to conduct face-to-face interviews in exceptional circumstances there are potentially additional barriers preventing clients from attending these interviews as firms or clinics may not be logistically accessible for some. For example, if clients are unable to drive, do they have the means or capability to physically get to an interview? Clients who do not drive may ordinarily catch public transport or use private transport such as a taxi or an uber. However, in the current circumstances, some people may not feel comfortable using these services in light of the potential health risks of doing so, and consequently may not be able to physically attend meetings. Further, while private transport would currently be preferable over public transport, this is not always a reasonable or justifiable expense for many people, especially those using free legal services/clinics.

SOLUTION 2 - REACH OUT

Pros

Whilst investments in technology were made at FVLSAC to assist staff in the transition to working from home and continuing to provide services, technology could not be made available to clients in the same way to enable or enhance their access to legal and other support services. Ms Bosch expressed concern that ‘these people are being left out of the conversation. 12 As previously mentioned the current COVID-19 pandemic situation has caused significant impediments to face-to-face interviews and although creative face-to-face options are available, many people are not comfortable accessing these for fear of a lack of confidentiality and discretion. Alternatively, people may believe that these services are simply not operating. Rather than ‘waiting out the storm’, Ms Bosch explained that the FVLSAC has made regular contact with their clients, to let them know they are still here. They put together bags filled with women’s hygiene and other products, sometimes including food, and delivered these in a socially-distanced manner to various clients, including domestic violence

victims and people in remote communities who may have had supply issues during the pandemic. These bags have been used as a way of checking if things are okay, and to give clients a boost, letting them know that someone is thinking about them. 13

Ms McMorrine has also pointed out that CJC have been able to stay in touch with many of their existing clients via telephone, including regular check-in calls where possible. Further, the Centre has continued some community engagement activities remotely via video conferencing where possible and still aim to provide educational resources online. 14

Cons

Ms Bosch explained that it has been very useful to reach out to clients as they are largely based within the same regions. However, it would be difficult for some other services to reach out in such a proactive manner as they would be bridging much larger distances. 15

Conversely, Ms McMorrine has highlighted that CJC have faced difficulties in maintaining Reach Out services with groups who are unable to access technology. While they still attempt to keep in contact via telephone this is not always possible, especially for clients who may be suffering family violence or have a disability. Further, they have had to reduce their outreach services to things that can be done remotely via video conference, which those without internet connection are unable to access. Similarly, the centre’s lawyers have also been unable to travel around the state to remote areas where, arguably, there are more vulnerable people in need of community justice access. 16 WHERE TO NEXT?

Overall, the pandemic has not entirely shut out community access to legal services. Whether those services are offered by private firms or community clinic/legal aid services, most services have adapted and made adjustments to their workplace practises to attempt to provide justice access to as many people as possible.

However, as highlighted by Ms McMorrine, there remains a large section of the wider SA community that have not been able to access services. 17 Unfortunately, these people are potentially the ones that are most in need of these community justice services but are missing out due to circumstances beyond their control.

We recognise that whilst there are benefits for the profession that have resulted from the pandemic, such as being able to communicate with clients in a non face-to-face setting, increasing the use of office technology so there are working from home capabilities, and the conception of creative alternatives to continue face-to-face interviewing there have also been challenges. These include not being able to keep in contact with clients located in remote areas, failing to provide services to those that do not have the capability to use, or access to, technology, and the difficulties in maintaining confidentiality outside the traditional office setting. These challenges remain a real problem and it will require further creative and innovative thinking to adequately address. Given the likelihood of ongoing restrictions pending the control of COVID-19 and the potential of a second wave of infections, initiatives in this area need to be ongoing to adequately address the needs of the community.

If you would like to find out more about the Clinical Legal Education program and the free legal advice services operated by Adelaide Law School, please visit: https://law.adelaide.edu.au/freelegal-clinics/.

Leigh Swift, Peter Gardiakos and Tessa Cartledge are allcompleting their finalyear Clinical Legal Education placement at Adelaide Law School. The Magistrates Court Legal Advice Service is supported the University of Adelaide, and by a grant from the Law Foundation of South Australia. B

Endnotes 1 Interview with Charlie Belperio, Partner at Belperio Clark Family, Wills & Business

Lawyers (Tessa Cartledge, Adelaide Law School,

University of Adelaide, 11 May 2020). 2 Interview with Carissa Bosch, Principal Legal

Officer at Family Violence Legal Service

Aboriginal Corporation (SA) (Tessa Cartledge,

Adelaide Law School, University of Adelaide, 11

May 2020). 3 Ibid. 4 Ibid. 5 Ibid. 6 Belperio (n 1). 7 Ibid. 8 Interview with Catherine McMorrine, CEO at

Community Justice Centres SA (Leigh Swift,

Adelaide Law School, University of Adelaide, 12

May 2020). 9 Belperio (n 1). 10 Ibid. 11 Bosch (n 2). 12 Ibid. 13 Ibid. 14 McMorrine (n 8). 15 Bosch (n 2). 16 McMorrine (n 8). 17 Ibid.

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, 26 October 2020 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 3 September 2020 at 5.00pm.

Staying connected to community legal need

AMANDA STONE, LEGAL EDUCATION OFFICER, LEGAL SERVICES COMMISSION

Providing accessible legal assistance to South Australians does not stop during a pandemic. Times of emergency call for innovative service delivery, and new ways of delivering community legal education and advice.

The Legal Services Commission has mobilised to continue to provide our core services to the public, other lawyers and organisations. Through periods of increased uncertainty, the community is seeking reassurance, guidance and answers as to how the law is impacting them during difficult times.

Despite in-person advice appointments being temporarily suspended attendance rates for telephone advice appointments have increased during the emergency period. Advisers have continued to be available to explain basic legal rights and obligations, determine what is a legal issue and what is a non-legal issue, and make appropriate referrals for further assistance. This empowers self-represented litigants to take charge of their legal issue, as we know that a proactive approach can be the best thing for dealing with, and working through legal matters.

Our Legal Chat, 24 Legal, and PhotoLegal platforms have increased the public’s ability to efficiently receive legal assistance. PhotoLegal is an encrypted digital service that enables people to securely send photos and short documents (i.e. court documents) to the Legal Help Line lawyers, who provide preliminary advice and information. Legal problems can often be identified and resolved more quickly if a lawyer has access to documents that relate to the problem.

In our community legal education section, face to face sessions were changed to online stakeholder meetings and continued engagement, learning from our interstate counterparts, and collaborating where possible. Even though State and Territory borders are restricted, information-sharing and collaboration between our interstate legal aid commissions and community legal centres has continued.

One such example is the South Australian Keeping Connected fortnightly e-resource for workers in organisations, government departments, and education sites. Each edition focuses on one legal topic at a time and highlights and links relevant publications, Law Handbook entries or other LSC resources. As well as being a useful tool for maintaining connections while we experience a hiatus from our usual CLE services, this e-resource serves as a new way of providing the community with up-to-date legal information and knowledge of where to access further help.

The initial goal of Keeping Connected was to continue to engage CLE stakeholders during the break from face-to-face services. However, the reach has been much broader than the original recipients (about 500 CLE contacts) who are sharing the resource far and wide through their own extensive networks. This suggests it serves a purpose beyond the pandemic period. It has become an excellent way of directing people to our services, publications, and resources.

Of particular concern during the COVID-19 pandemic has been the increase in domestic violence, given more people are isolated in the home environment. In response, LSC has created a ‘Housing & Domestic Violence (During COVID-19)’ Factsheet. The Keeping Connected topic of ‘Family violence and Intervention Orders’ had more than 3500 views, demonstrating the power of early intervention, collaboration and information-sharing through established domestic violence support networks.

The Law Handbook resource helps simplify legal information, enabling citizens to better exercise their legal rights and understand legal obligations. Temporary COVID-19 related updates have been added to the chapters from which we commonly receive advice enquiries. These updates reflect the need to provide comprehensive and timely information, and respond to constantly evolving changes to the law under emergency declarations and directions. Our online publications and LSC website have expanded to include COVID-19 specific resources, such as the ‘Law and COVID-19 Coronavirus for South Australians’ webpage, and factsheets including participating in ‘Family Law Telephone Conferences.’

The highest number of advice enquiries over the preceding few months has consistently been in the family law jurisdiction. State and territory border restrictions, and self- isolation have greatly impacted South Australian’s ability to maintain pre-COVID activities. Advice relating to tenancy matters, employment and consumer issues (particularly cancelled holidays) are at the forefront of enquiries, as the widening and ongoing economic fallout of the pandemic continues to impact the community.

A major positive during this time, has been the timely commencement of the Uniform Civil Rules 2020, and CourtSA (electronic court management system) for civil claims. The online portal has empowered self-represented litigants to lodge and access their cases online during a time where in person court registry services have been limited.

As our ‘new normal’ becomes clearer over the coming months, being technologically progressive can only put the legal profession and clients in a better position to respond to emerging legal issues that will inevitably come to light in the pandemic’s aftermath. B