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BULLETIN THE LAW SOCIETY OF SA JOURNAL

ISSUE

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IN THIS

VOLUME 44 – ISSUE 7 – AUGUST 2022

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (7) LSB(SA). ISSN 1038-6777

CONTENTS WORKPLACE LAW 6

REGULAR COLUMNS

Home, office, hybrid – where is the workplace? – By Lincoln Smith, Thomas Tagirara, and Anastasia Gravas Is this the winter of our discontent? The importance of revisiting WHS while “living with” COVID-19 By Seamus Brand Post-employment restraint considerations when moving on By Molly Shanahan

Industrial manslaughter laws coming to a jurisdiction near you – By Luke Holland, Partner, Sparke Helmore Lawyers

A snapshot of potential industrial relations reforms from the new elected state and Federal Labor governments – By Maida Mujkic and John Love

An overview of the changes to the Return to Work Act – By Nathan Ramos

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

J Stewart-Rattray J Marsh A Lazarevich M Tilmouth F Bell R Sandford M Mackie E Shaw

Metropolitan Council Members T Dibden M Tilmouth A Lazarevich M Mackie E Shaw J Marsh C Charles R Piccolo M Jones G Biddle Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Metropolitan Council Members D Colovic E Fah N Harb L MacNichol L Polson M Young Junior Members A Douvartzidis A Kenny Ex Officio Members The Hon K Maher, Prof V Waye, Prof T Leiman Prof J McNamara

Getting on with it – The pragmatic, solution focused approach of the SAET in resolving disputes By Michael Esposito

From the Editor

President’s Message

Tax Files: Disclaimers and some taxes By Bernie Walrut

FEATURES & NEWS 35 20

Online portal to lodge criminal and care and protection documents to go live – By Penny Croser

Wellbeing & Resilience: The grateful grumbles of a community lawyer By Georgina Portus

Indigenous scholarship puts budding lawyers on path to careers as strong justice advocates – With Mikeyli Hendry & Cindy D’Angelo

Risk Watch: Costs ramifications in testamentary claims: further erosion of the “Probate Costs Rule” By Kate Marcus

The security risks of cloud-based systems versus on-premises systems By Mark Ferraretto

Family Law Case Notes By Craig Nichol & Keleigh Robinson

Bookshelf

Gazing in the Gazette Compiled by Master Elizabeth Olsson

Advocacy in the profession – is it still just as relevant? – Q&A with Justice Livesey

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) Kiley Rogers krogers@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

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

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen 3/288 Glen Osmond Road, Fullarton SA 5063 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

Engaging in law reform agenda can have positive impact on legislation MICHAEL ESPOSITO, EDITOR recent developments include Justthe some Fair Work Commission’s decision to increase the minimum wage, the new Federal Government’s broad industrial relations reform agenda, the likely introduction of industrial manslaughter laws at a State level, ongoing legal issues related to Covid-19 such as working from home and work, heath and safety policies, and recent reforms to SA’s workers compensation scheme. This edition coves all of these issues, as well as an examination of controversial post-employment restraint laws, and a look at how and why the South Australian Employment Tribunal utilises alternative dispute resolution. The reforms to the Return to Work Act highlight the important role that the legal profession can play in advocating for fair and effective laws. The Society was caught somewhat

by surprise when the State Government introduced a Bill on 2 June which would have had the effect of negating significant SAET decisions in the cases of Preedy and Summerfield. Despite the lack of warning, the Accident Compensation Committee quickly mobilised to analyse the Bill and provide the foundation upon which the Society made a submission to the Government on the Bill. Following opposition to the Bill from unions, the Government withdrew it and introduced another, vastly different and more complex Bill. Again, the Accident Compensation Committee met with Society staff to examine this proposed legislation, and the Society provided another detailed submission outlining a number of inconsistencies and ambiguities in the Bill, and again raised concerns about the lack of consultation on the hastily drafted Bill.

The Society pointed out several aspects of the Bill that would likely be the subject of protracted and costly test litigation, which would not be in the best interests of employees or employers. Pleasingly, the Government and crossbenchers moved a number of amendments to the Bill which reflected the Society’s recommendations. The final version of the Bill does address several problems the Society had identified with the Bill, and this may not have happened if it was not for the proactive and painstaking work of practitioners working with the Society to address problematic legislation. The full implications of the reforms will not be known for some time, but this edition does include a summary of the key changes to the Return to Work Act, which I trust will be useful for those who practice in workers compensation or have some interest in the area. 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, 24 October 2022 at 5.15pm CDT Information about the AGM (including how to participate via videoconference), 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 1 September 2022 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 1 September 2022 at 5.00pm.

4 THE BULLETIN August 2022

PRESIDENT’S MESSAGE

Figures show vast majority of lawyers act professionally & ethically, but always room for improvement JUSTIN STEWART-RATTRAY, PRESIDENT

he legal profession has always been held to high professional standards, but these standards were made even more stringent when amendments to the Legal Practitioners Act came into force in 2014, and the State’s inaugural Legal Professional Conduct Commissioner was appointed. Greg May recently stepped down as Conduct Commissioner after eight years in the role, and I would like to take this opportunity to sincerely thank him for his diligent and proactive efforts in his role as the legal watchdog, in which in addition to his investigative role, he educated the profession on their obligations under the Legal Practitioners Act through numerous CPDs and a regular Bulletin column, and oversaw the expansion of his office to deal with harassment complaints within the profession. I also congratulate Anthony Keane on his appointment as the new Legal Profession Conduct Commissioner. I am confident hie will perform his role with the utmost integrity and professionalism. While the Legal Profession Conduct Commissioner naturally deals with allegations of poor behaviour from practitioners, the relatively low number of complaints made, and the far fewer that are actually upheld, tells a positive story about the profession. From financial years 2016-17 to 202021 there has been an average of about 33 complaints per year being upheld, meaning less than 10% of complaints that the Legal Profession Conduct Commissioner investigated led to adverse findings (adverse findings being findings of unsatisfactory professional conduct, professional misconduct and overcharging). Only about 3% of South Australian practitioners were the subject of complaints (due to instances of individual practitioners being the subject of multiple complaints) and about 1% of practitioners had a finding of misconduct against them. While just one finding of misconduct

is one too many, these figures suggest that there are only a few “bad eggs” who adversely impact the standing and reputation of the profession. When you consider that lawyers usually represent clients who are at one of the most vulnerable and stressful times in their lives, the relatively low number of complaints speaks to the professional and ethical manner in which most South Australian practitioners conduct themselves. In this sense, it is not surprising that the jurisdiction in which the most complaints is made is family law. For example, complaints often come from an aggrieved client of an opposing party in a family law dispute. The vast majority of practitioners that I have had dealings with are hard-working, fair, and professional, who always put their clients’ interests first and take their duties to the court seriously. The lawyers who commit to pro bono work and are passionate about enhancing access to justice, like those whose stories were told in last month’s “community” edition of the Bulletin, are far more typical of the lawyers I usually come across. But the very few who act unconscionably or incompetently are of course great fodder for mainstream media, and this can produce a skewed perception of the ethical integrity of lawyers. This is not to say that we should rest on our laurels. As Greg May noted in his final Bulletin article last month, there is scope for lawyers to improve their communication with clients and to ensure they are upfront about costs. The ethical obligations on practitioners have become increasingly onerous, and this can create challenges, but I encourage all practitioners to keep up-to-date and informed about their duties and obligations under the Legal Practitioners Act and Conduct Rules. I am proud to work in a profession that takes its legal and ethical duties seriously, and remember that if you have any questions or concerns about your ethical responsibilities, you can contact the Society’s Ethics and

Practice unit, which is there to support practitioners through any professional challenges they may be facing. B SA Legal Practitioners subject to complaints (orange)

SA Legal Practitioners subject to findings of unsatisfactory professional conduct or professional misconduct (red)

MISCONDUCT FINDINGS FYE 2020 PCs issued (year) – 4216 Misconduct findings – 36

FYE 2016 to 2020 Average PCs issued – 4072.2 Average misconduct findings – 29.6

August 2022 THE BULLETIN

FEATURE

HOME, OFFICE, HYBRID – WHERE IS THE WORKPLACE? LINCOLN SMITH, PRINCIPAL, THOMAS TAGIRARA, ASSOCIATE AND ANASTASIA GRAVAS, ASSOCIATE, NORMAN WATERHOUSE

s the fog of COVID-19 descended upon Australia in 2020, the vast majority of employers across all enterprises were forced to adapt so as to not sink by virtue of the quickly shifting industrial and economic landscape. This included implementing shutdowns, managing workforce expectations and anxieties, navigating JobKeeper and mandating mask-wearing and COVID-19 vaccinations in the workplace. From an operational standpoint, businesses were required to adapt their work arrangements at the ground level to ensure their operations continued while balancing the health and safety of their workforce. This included changes to working hours, staff duties and most notably, flexible working arrangements such as working from home. As we emerge from COVID-19 with a more informed understanding of the impacts of the virus, employees are seeking additional flexibility in their working arrangements to balance their work and personal lives. These flexibilities have also become a common selling point for employers as part of their recruitment processes. To this end, hybrid working arrangements (i.e. partly working in the office, partly working from home) are becoming more common. Some employees flourish and thrive in these types of arrangements, whereas others prefer the traditional approach of working in the office. Whether a flexible working arrangement is entered into will ultimately depend on the employer’s operational requirements, the enterprise the business operates in and its resources.

6 THE BULLETIN August 2022

LAWFUL AND REASONABLE DIRECTIONS A cornerstone of an employment relationship is the obligation of an employee to abide by lawful and reasonable directions of their employer. Whilst a direction to work in the office is no doubt lawful, the question of whether it is reasonable1 will vary from workplace to workplace having regard to the nature of the work to be performed, workplace policies, contemporary considerations such as family responsibilities of an employee and of course, tempered by the statutory provisions.

STATUTORY FRAMEWORK There is no set precedent for flexible working arrangements, including working from home arrangements, that applies to all employers. It ultimately depends on striking a balance between the employee’s circumstances and the level of flexibility that an employer can reasonably provide. Employers must also take into account applicable statutory requirements. Fair Work Act 2009 (Cth) The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act) prescribe the eligibility requirements for a flexible working arrangement2. An employee who is: • a permanent employee who has completed at least 12 months continuous service with their employer; or • a regular casual employee who has completed at least 12 months continuous service with their employer and has a reasonable expectation of continuing employment on a regular and systematic basis,

has a right to request a change in working arrangements if the employee is: • a parent of, or has responsibility of, a school-aged child or younger; • a carer (within the meaning of the Carer Recognition Act 2010; • a person with disability; • aged 55 years or older; • experiencing domestic violence; or • providing care or support to a member of their household or immediate family due to domestic violence. Employees who fall within these categories have a specific right to request flexible working arrangements. A request must be made in writing, setting out the arrangement that is sought and the employee’s reasons for the request. At law, an employer who receives a request for a flexible working arrangement must: • consider the request; • discuss the request with the employee to determine whether an agreement can be reached;3 • following the above meeting, respond to that request in writing to the employee within 21 days; and • if a request is refused, provide reasons for the refusal which can only occur on ‘reasonable business grounds’. Pursuant to section 65(5A) of the FW Act, ‘reasonable business grounds’ includes whether: • the arrangement would be too costly for the employer; • there is no capacity to change the working arrangements of other employees to accommodate the request; • it would be impractical to change the working arrangements of other

FEATURE

employees (or recruit new employees) to accommodate the request; • the arrangement would likely result in a significant reduction in efficiency and productivity; and • the arrangement would likely have a significant negative impact on customer service. Ultimately, each situation will depend on the particular circumstances of the employer and employee. The development of a robust and compliant flexible working arrangement policy will provide the guidance for managing flexibility requests. Modern Awards For employers whose enterprise is covered by an Award, the right to request a flexible working arrangement is detailed in

a clause that is contained in each respective Award, known as the ‘model clause’.4 This clause largely reflects the requirements of the FW Act by prescribing a process for handling requests for a flexible working arrangement. However, the clause also includes the ability to utilise the dispute resolution process of that Award in the event an employee claims the employer has failed to satisfy the requirements of process. Accordingly, for employers covered by an Award, it will need to ensure that it complies with the process in the applicable Award when/if it receives a request for a flexible working arrangement. In respect of employees whose circumstances do not fall within those prescribed by the NES, or those who

are not covered by an Award, it will ultimately boil down to their employer’s policy (should one be implemented) as to whether there is an entitlement to a flexible working arrangement, and the reasonableness of the request. Work Health and Safety Act 2012 (SA) The Work Health and Safety Act 2012 (SA) (WHS Act) prescribes a statutory duty on both employers and employees to ensure work health and safety remains paramount in the workplace. These duties extend to flexible working arrangements, especially where that arrangement is for an employee to work from home, as there are evident work health and safety considerations (as discussed below) that must be taken into account.

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August 2022 THE BULLETIN

FEATURE

Every employer in South Australia has a statutory duty to, so far as reasonably practicable, consult with their workforce who are, or are likely to be, directly affected by a matter relating to work health and safety.5 This includes consulting with employees on policies which affect their health and safety including flexible working arrangements. Safety considerations Risks to health and safety must be, so far as reasonably practicable, eliminated or, at the least, minimised, when working from home. In practice, when determining whether to approve an employee’s request to work from home, employers must undertake a risk management process to identify hazards, assess associated risks, and implement control measures to eliminate or minimise those hazards and risks. This can be achieved by the employer assessing the employee’s workstation in person or via electronic means i.e. Zoom or Microsoft Teams. Only once an employer has identified any hazards and associated risks and implemented control measures to negate those hazards and risks, should a working from home arrangement be approved (in addition to the reasonableness of the request for approval). Policy For employers, best practice for determining what flexible working arrangements can be accommodated is to develop and implement a compliant policy. A policy will assist an employer and its employees in understanding what flexible working arrangements are available and how they will operate in practice. A policy should: • outline the types of flexible working arrangements that are available, which may include working from home arrangements; • explain who can request a flexible working arrangement. As a matter of best practice, flexibility should be made available to all employees; • detail the process for making a request for flexible working arrangement; • describe what the employer will consider and how it will respond accordingly (whether to approve or reject the request and the reasons for its decision); and • if an arrangement is approved, detail how that arrangement will be recorded, monitored and reviewed.

8 THE BULLETIN August 2022

The policy should also prescribe the process for approving a working from home arrangement, which must include undertaking a risk assessment to ensure any risks to health and safety are eliminated, or at the least, minimised, so far as reasonably practicable. While an employer (so far as the NES and Award provisions apply) can only refuse a request for a flexible working arrangement on ‘reasonable business grounds’, this does not prevent the employer from directing an employee to return to the workplace at any point. The policy should reflect the employer’s ability to make such a direction at its discretion, so far as that request is lawful and reasonable in the circumstances. This will provide flexibility to the employer to ensure that it can meet its operational requirements, while not contravening the FW Act or the WHS Act. It should be made clear to the employee that any approved working from home arrangement will not be for an indefinite period or the employee’s on-going place of employment moving forward.6 In any event, should an employee fail to comply with a lawful and reasonable direction to return to the workplace, this may warrant disciplinary action including the termination of the employee’s employment.7 However, caution should be exercised when making such a direction. In particular, an employee who is directed to return to the workplace may claim the direction amounts to discrimination. This may be due to a number of reasons, including anxieties of returning to the office or reluctance to disturb their flexible working arrangement. In any event, this will need to be considered on a case by case basis. Consultation and maintaining an open dialogue with employees will more likely achieve a mutually beneficial outcome. However, ultimately it is for the employer to determine an employee’s location of employment subject to the reasonableness considerations (as discussed above). Once a policy has been drafted, employers must comply with their statutory obligations prior to implementing the policy, which as discussed above, includes any consultation requirements under the WHS Act. Consultation is vital to ensure there is a consistent and transparent approach that

supports the employer and its workforce. Consultation will also ensure an employer is in a defensible position should a claim be brought against it in relation to an implemented policy.8

CONCLUSION Employers must ensure that they comply with any requirements for flexible working arrangements as prescribed in an applicable Award or, if an Award does not apply, the requirements prescribed in the FW Act. Employers should also ensure that a policy is developed and implemented through a consultation process. Once employees have been consulted and the policy is implemented, it will serve as guidance for employees who may request to enter a flexible working arrangement in the future. Most jurisdictions are now at the junction of the COVID-19 pandemic where it can be described as ‘living with COVID-19’. Employers are now faced with the decision as to whether flexible working arrangements will be a permanent feature of their operations moving forward, or whether to revert to the traditional model, or implement a combination of both. Ultimately, this will be a judgment call for a particular workplace, however through the development of a robust flexible working arrangement policy, through consultation, employers and employees will have greater clarity of what is reasonable in a particular workplace. B

Endnotes 1 See Construction, Forestry, Maritime, Mining and Energy Union and Another v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal [2021] FWCFB 6059, [64] – [81]. 2 Fair Work Act 2009 (Cth), s 65. 3 There is no statutory requirement to meet with an employee. However, this is a requirement for Award-covered employers. As such, it is recommended that employers meet with an employee as a matter of best practice. 4 See Re Family Friends Working Arrangements [2018] FWCFB 5753. 5 Work Health and Safety Act 2012 (SA), ss 47 – 49. 6 See Matthew Colwell v Wellways Australia [2022] FWC 1086. 7 See Jason Lubiejewski v Australian Federal Police [2022] FWC 15. 8 See Construction, Forestry, Maritime, Mining and Energy Union and Another v Mt Arthur Coal Pty Ltd trading as Mt Arthur Coal [2021] FWCFB 6059.

WORKPLACE LAW

Is this the winter of our discontent? The importance of revisiting WHS while “living with” COVID-19 SEAMUS BRAND, ASSOCIATE, WALLMANS LAWYERS

hroughout the COVID-19 pandemic, employers have largely relied on Government health advice and Government health orders (GHO) to inform (or compel) their response to COVID-19. In some cases, employers were legally required to comply with a GHO and could rely upon it to justify the making of hard, but necessary, decisions. Many GHO have since been withdrawn and the emergencies giving rise to them declared “over” (at least in a legal sense). Meanwhile, Australia faces its first winter in the era of “living with COVID”. This has left many employers without the GHO safety net. It also leaves other employers (never subject to a GHO) with the continued uncertainty as to precisely how the manage the workplace risks of COVID-19, particularly during this “winter wave”. This article serves as a reminder that persons conducting a business or undertaking (employers) should not consider the reduction in GHO as an invitation to downplay or become complacent as to the work health and safety (WHS) considerations posed by COVID-19, particularly those involving vaccination. We examine the legal basis and justification for GHO relating to COVID-19 in SA with a particular focus on vaccine directions, then considers whether an employer can rely on that same legal basis and justification, and finally broadly discusses the WHS obligations owed by an employer in the context of COVID-19. On 22 March 2020, the State Coordinator for the State of South Australia (the State Coordinator) declared a Major Emergency in respect of the outbreak of COVID-19.1 From then until the Revocation of the Major Emergency Declaration on 24 May 2022, the State Coordinator issued numerous directions pursuant to s 25 of the Emergency Management Act 2004 (SA) (the EM Act) (together, the Directions). The Directions were intended to achieve the objects of the EM Act, which include the promotion of community resilience and reduction of community vulnerability in the event of an emergency.2

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While many South Australians did not contract COVID-19 for considerably longer than the rest of the world, this could be considered an ancillary benefit to the Directions’ primary purpose of ensuring the SA healthcare system would not buckle under the pressure of a pandemic. As we all no doubt remember, we were reminded to comply with the Directions to help ‘flatten the curve’ and ensure we kept the cases below the ‘healthcare system capacity’ line.3 This protection of the healthcare system was undoubtedly to ensure the EM Act’s objects were more likely to be achieved. On 7 October 2021, the State Coordinator directed that a person could not engage in work or perform duties in a healthcare setting from 1 November 2021 unless they had received at least one dose of a TGA approved COVID-19 vaccine and had received, or had evidence of a booking to receive, a second dose of a TGA approved COVID-19 vaccine within one month of that first dose (the Healthcare Vaccine Direction). The Healthcare Vaccine Direction was the time the SA Government mandated vaccination against COVID-19 in certain workplaces. Unlike the Directions issued earlier, the Healthcare Vaccine Direction included a specific purpose: to maintain the provision of, and minimise disruption to, healthcare services in SA despite COVID-19 spreading in the industry and community generally. A review of the Directions mandating vaccinations that followed reveals a similar purpose – maintaining the provision of, and minimising disruption to SA’s education industry,4 passenger transport industry,5 aged care and disability services,6 and emergency services 7 (the Vaccine Directions). Each of these industries and services are no doubt essential to promoting community resilience and reducing community vulnerability during a pandemic which had the capacity to severely cripple the State’s ability to provide some of its core functions by temporarily, but significantly, reducing the

size of its workforce. While the Directions all sought to “flatten the curve” to protect the healthcare sector, the Vaccine Directions appreciated that it is not the only sector that if overwhelmed could critically damage community resilience and exacerbate community vulnerability. When employers not bound by Healthcare Vaccine Direction or the Vaccine Directions implemented their own vaccination policies, they may have taken for granted the existence of the Vaccine Directions as justification enough for their own policy. However, the Vaccine Directions were the SA Government’s measures to achieve the objects of the EM Act and protect the SA Government’s ability to provide some of its most basic functions. Arguably, most employers not subject to the Vaccine Directions do not have an equivalent duty to the population of SA at large. While the State Coordinator’s decision to issue, and later revoke, the Vaccine Directions are certainly indicators of SA’s capacity to cope with COVID-19 as a whole, it would be unwise to use those decisions alone to justify anything more than the promotion of community resilience and reduction in community vulnerability. As such, an employer’s primary approach to managing COVID-19 in its workplace should not find its basis in the need to meet the objects of the EM Act, but instead in the employer’s its obligations owed to protect the WHS of its employees. The Work Health & Safety Act 2012 (SA) (WHS Act) imposes a duty on employers to, as far as is reasonably practicable, eliminate or minimise the risks to health and safety of its employees, customers, clients and visitors to its workplace.8 Whether something is “reasonably practicable” is a question of both law and fact, answered by balancing the likelihood of the risk occurring and the harm that might result with the availability, suitability and associated cost of measures implemented to eliminate that risk.9 Employers in SA must therefore consider the risk of contracting COVID-19 and

WORKPLACE LAW

the harm that might arise from infection and determine the most appropriate measure to eliminate or reduce that risk where that measure is available, suitable and can be implemented without grossly disproportionate cost. There was never doubt that the obligations imposed on employer (by the WHS Act) are an entirely separate matter (in compliance terms) to those contained within varying GHO across jurisdictions. However, it became a practical reality that the somewhat uncomfortable label of “COVID Law” became a hybrid of public health and safety considerations – particularly for employers. Further, the similarities in both laws (in terms of what they were seeking to protect and avoid) meant their concepts often overlapped – particularly in terms of assessing what might be “reasonable” in a given situation. Prior to 2022, questions of reasonable practicability concerning the COVID-19 pandemic largely concerned the suitability of different measures to address a relatively constant risk. In 2020, the risk of contracting COVID-19 and suffering harm from it was believed great enough to justify whole industries directing their employees to work from home as that was the measure thought to be most suitable, despite its significant cost. As more was learned about COVID-19, measures such as social distancing and mask wearing became more suitable and could be implemented for a lesser cost. Once vaccinations against COVID-19 became readily available, a vaccination policy could be considered a reasonably practicable measure of eliminating or minimising the risk of COVID-19 as vaccines were considered to provide the best level of protection against that risk for a comparatively low cost.10 During this period, employers could more readily rely on the approach taken by the SA Government as an indicator of the risk posed by COVID-19 as legally the Directions then included social distancing requirements, stay at home orders and

mask wearing which, when considered together, effectively dictated what was a reasonably practicable WHS response. Now however, with the Major Emergency Declaration revoked, employers must return to their own assessment of the risks posed by COVID-19 and the reasonable practicability of the measures imposed by the employer to eliminate or mitigate that risk. While the revocation of the Major Emergency Declaration and the Directions would appear to indicate that the risk of acquiring COVID-19, or the harm associated with it, is reducing, this must be considered in light of an employer’s WHS obligations being owed under the WHS Act and not the EM Act. There is now reduced utility in using the actions of the SA Government to inform an employer’s decisions regarding WHS as compared to this time in 2021 or 2020. Even when Governments across Australia were taking a more active role in mandating vaccinations, Governments varied quite significantly as to the number and scope of GHOs in their particular jurisdiction. The approach was far from uniform. Even now, by withdrawing most of the Vaccine Directions, the Government is by no means suggesting the COVID no longer poses a risk to the community, or indeed to workplaces. As but one example, the Australian Technical Advisory Group on Immunisation is concerned that the number of people ill from COVID-19 is expected to increase in the coming months11 and the Australian Health Protection Principal Committee has recently reduced the immunity period post-infection from 12 weeks to 28 days.12 It is perhaps now less clear than ever what measures an employer must implement (as opposed to should implement) that are reasonably practicable to meet its WHS obligations in the face of COVID-19. This was and remains a “caseby-case” assessment for all workplaces. The effectiveness of vaccination as a measure to eliminate or reduce the risks arising from COVID-19 continues to change as new

variants of COVID-19 evolve and spread. The harm suffered from contracting these variants is similarly unclear. At present, only two things are certain: • the health authorities’ expectation that the risk of contracting COVID-19 will rise as winter continues; and • what measures are reasonably practicable (and to what extent) to ensure an employer meets its WHS obligations (arising from the risks posed by COVID-19) must remain well agile and considered to address the ever changing risk that is its focus – COVID-19 itself. Contrary to what the revocation of the Major Emergency Declaration might suggest, when it comes to the risks posed by COVID-19, employers must now be more vigilant than ever. B Endnotes 1 Pursuant to s 23(1) Emergency Management Act 2004 (SA) 2 Emergency Management Act 2004 (SA) s 2(1)(b). 3 Disaster Preparedness and Resilience Branch, SA Health Respiratory Disease Pandemic Response Plan (including influenza, COVID-19, SARS & MERS), March 2020, page 25. 4 Emergency Management (Education and Early Childhood Settings Vaccination) (COVID-19) Direction 2021 (SA). 5 Emergency Management (Passenger Transport Vaccination) (COVID-19) Direction 2021 (SA). 6 Emergency Management (In-home and Community Aged Care and Disability Support Workers Vaccination) (COVID-19) Direction 2021 (SA) 7 Emergency Management (Metropolitan Fire Service Workers Vaccination) (COVID-19) Direction 2022 (SA); Emergency Management (South Australia Police Workers Vaccination)(COVID-19) Direction 2021 (SA). 8 Work Health & Safety Act 2012 (SA) s 17(1). 9 Ibid s 18. 10 ATAGI, ATAGI Statement on use of COVID-19 vaccines in an outbreak setting, 13 July 2021, <https://www.health.gov.au/news/atagistatement-on-use-of-covid-19-vaccines-in-anoutbreak-setting>. 11 ATAGI, ATAGI updated recommendations for a winter dose of COVID-19 vaccine, 7 July 2022, <https://www.health.gov.au/news/atagiupdated-recommendations-for-a-winter-dose-ofcovid-19-vaccine>. 12 AHPPC, AHPPC statement on COVID-19 winter update and ongoing health protection measures to support our community, 8 July 2022, < https:// www.health.gov.au/news/ahppc-statement-oncovid-19-winter-update-and-ongoing-healthprotection-measures-to-support-our-community>.

August 2022 THE BULLETIN

WORKPLACE LAW

Post-employment restraint considerations when moving on MOLLY SHANAHAN, LAWYER, FINLAYSONS LAWYERS

mployment contracts quite commonly include contractual provisions which limit an employee’s ability to do various acts and accept employment with other employers once their employment comes to an end. Despite their high use in employment contracts, post-employment restraint clauses are controversial and can often be difficult to enforce. Post-employment restraints, if not provided in an employment contract, could also be implemented through an agreement or deed executed by the employer and employee either at the commencement of employment (separate to the employment contract) or throughout the employment (such as when being promoted). Post-employment restraints clauses can vary considerably and may include restraining an employee from: • using confidential information gained through employment with the former employer; • working in the same industry as the former employer; • working for a direct competitor of the former employer; • carrying on activities the same or similar to those activities performed whilst working for the former employer; • communicating with or doing work for customers / clients of the former employer with their new employer; • encouraging employees of the former employer to leave their employment and take up employment with a new employer; and • commencing their own start up business which would compete with the former employer’s business. These types of restraint clauses can often also be referred to as non-disclosure, non-solicitation and non-compete clauses. Why are restraints controversial? Restraints, particularly broad constraints that limit an employee from pursuing employment with an employer in the same industry or field of work as their former employer, are generally considered controversial.

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Employees can be significantly disadvantaged by restraints as their freedom to participate in the workforce becomes restricted. Where employees are restrained by their former employer from working in the same industry or for a competitor’s business, the employee’s ability to utilise their experience and skills which they have worked to build, may become limited resulting in a reduced “future ability to work” in their chosen industry.1 This can also result in financial detriment to employees and lead to further broader economic issues. On the other hand, restraints provide favourable protection to employers, assisting them to protect their legitimate business interests such as protection against the misuse of their confidential information, maintenance of customer / client relationships and preservation of a skilled workforce.2 Without the enforcement of restraints, an employer’s competitiveness can be significantly impaired. Post-employment restraints can also be particularly beneficial for employers where there has been a breakdown of the relationship between the employee and employer which could lead to malicious and intentional acts by an employee to destroy the employer’s legitimate business interests. Are restraints enforceable? Not all post-employment restraints will be enforceable. The current common law doctrine of restraint (which is applied across Australia, other than NSW which has its own statutory restraints scheme)3 attempts to balance both an employer and employee’s differing interests.4 The starting position is that common law presumes that post-employment restraints will not be enforceable as they conflict with the general principles of public policy5 – that is, restraints limit freedom and may prevent an employee from earning a living. Therefore, restraints are deemed to be void and unenforceable unless it can be shown that in all the circumstances of the case, the restraint is reasonable by

reference to the interests of the parties concerned and reasonable by reference to the interests of the public.6 In determining the reasonableness of a restraint and whether competing interests are adequately balanced, the court will consider firstly, whether the employer has a legitimate business interest which needs protecting and secondly, if so, whether the restraint imposes no more than adequate protection to a party in whose favour it is imposed.7 If the restraint provides further protection than can be justified, it will be unenforceable. Legitimate business interests Reasonableness of post-employment restraints is determined by having regard to the legitimate business interests of the employer. If the restraint does more than protect the employer’s legitimate business interests, such as to stop employees from leaving the employer or completely preventing competition with the employer’s business, this may lead to a finding of unreasonableness. Categories of legitimate business interests continue to involve but may include: • protection of an employer’s relationship with customers / clients;8 • protection against any misuse of confidential information or trade secrets;9 and • protection of an employer’s trained and skilled workforce.10 Generally, restraints are more likely to be more reasonable when they apply to senior employees who have been able to develop significant client relationships and who had a greater access to trade secrets and confidential information. Reasonable duration In terms of duration, restraint clauses are generally drafted with a 12-month restraint period, although ladder / cascading clauses can also include greater and lesser time periods. In determining the reasonableness of the duration of restraints, courts have considered various approaches, however

WORKPLACE LAW

it appears the most established approach is by looking at period of time required to break the client relationship with the employee – i.e. the strength of connection will lessen during the period of restraint as clients require the services and because the employee cannot provide them, they will need to go back to the employer11. Reasonable geographical location Restraint clauses are also drafted with reference to a geographical location in which the employee is restrained from performing acts or working. For example, a restraint clause might outline that an employee cannot work for a competitor’s business within 50km from the former employee’s business. If a location limitation is expressed by reference to the location of the employer’s clients whose relationship with the employee may be used in their new employment, then the geographical location is more likely to be found as reasonable.12 If the restraint is drafted to apply beyond the location to which the employer’s clients belong, then the clause may be unreasonable and therefore unenforceable.13 Time period for the test of reasonableness Quite commonly, restraints are agreed to by employees at the start of their employment relationship with the employer. The roles, responsibilities and customers an employee deals with at the start of their employment may differ greatly when compared to their role at the time their employment comes to an end. It is for this reason that the reasonableness of the restraint must be considered by having regard to the circumstances at the time of entering into the employment contract (or restraint agreement) and having regard to the best assessment which the parties could make of the future at that time.14 Therefore, some regard is to be had for potential developments in the role of the employee and nature of the business which they may become responsible for in the future.15

Why can employer’s restrain employees from working for another employer in the same industry? Throughout their employment, employees are often able to establish close personal and professional relationships with their employer’s clients. If the employment came to an end with that employer there would be a risk that the employee is able to easily take away some of these clients from the former employer for use in a competitor’s business. In this scenario, it is clear that a non-solicitation clause may not adequately protect the employer’s legitimate business interests, as clients may follow the employee without the employee having to actively solicit the client. Therefore, courts have found that restraint clauses can go much further, to restrain an employee from accepting a new job with a competitor, where the employee is likely to use the connections they built up with clients of the former employer. 16 In these circumstances, the stronger an employee’s connection with clients the less likely a non-solicitation clause will be effective and the more reasonable a broader non-competition clause will be. Further, practically it would be difficult for a former employer to become aware of a breach of a non-solicitation clause by a former employee.17 This also supports a broad non-competition restraint on the basis of protecting the employer’s interests. Similarly, a restraint clause which limits an employee from disclosing confidential information may not afford an employer adequate protection of its interests meaning that where reasonable, restraints from being involved in a competitor’s business may be enforceable.18 Again, a breach of a non-disclosure of confidential information clause may not be immediately noticeable by a former employer. By the time the former employer becomes aware of a breach, the damage to its interests may have already occurred. Closing off It is clear that the doctrine of restraints attempts to balance public policy and

the freedom to earn a living, against an employer’s legitimate business interests and the effects that could occur to a business if reasonable restraints are not enforced. It is however important to note that “the limits of the [restraint of trade] doctrine are very widely set out and differ a good deal from case to case, so that no one is a binding authority for any other because the circumstances differ”.19 Despite this, post-employment restraints should be considered both prior to entering into any employment contract or restraint agreement and before leaving an employer and commencing with a new one, particularly where the new employer is a competitor or within the same industry as the former. B Endnotes 1 Ian Neil SC and Nicholas Saady, ‘The Reasonableness of Restraints: An Analysis of the Enforcement of Post-Employment Restraints’ (2018) 46 Australian Business Law Review 99, 115. 2 Note that this legitimate business interest is less settled law; Labelmakers Group Pty Ltd v LL Force Pty Ltd (No 2) [2012] FCA 512. 3 See the Restraints of Trade Act 1976 (NSW) 4 Herbert Morris Ltd v Saxelby [1916] 1 AC 688; Ian Neil SC and Nicholas Saady, ‘The Reasonableness of Restraints: An Analysis of the Enforcement of Post-Employment Restraints’ (2018) 46 Australian Business Law Review 99, 100. 5 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, 565. 6 Ibid. 7 Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 708. 8 Pearson v HRX Holdings Pty Ltd [2012] FCAFC 111 at [46], (2012) 205 FCR 187 at 198; International Cleaning Services (Australia) Pty Ltd v Dmytrenko [2020] SASC 222 [20]. 9 Wallis Nominees Pty Ltd v Pickett (2013) 45 VR 657; Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 10 Note that this legitimate business interest is less settled law; Labelmakers Group Pty Ltd v LL Force Pty Ltd (No 2) [2012] FCA 512. 11 Cf. NE Perry Pty Ltd v Judge (2002) 84 SASR 86, 96–97; International Cleaning Services (Australia) Pty Ltd v Dmytrenko [2020] SASC 222 [35]. 12 Lindner v Murdock’s Garage (1950) 83 CLR 628, 655. 13 Lindner v Murdock’s Garage (1950) 83 CLR 628, 656-657. 14 International Cleaning Services (Australia) Pty Ltd v Dmytrenko [2020] SASC 222 15 Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 at [53]. 16 AGA Assistance Australia Pty Ltd v Tokody (2012) 224 IR 219. 17 Pearson v HRX Holdings Pty Ltd [2012] FCAFC 111 [51]. 18 Just Group Ltd v Peck (2016) 344 ALR 162. 19 GW Plowmann & Son Ltd v Ash [1964] WLR 568, 571.

August 2022 THE BULLETIN

FEATURE

Industrial manslaughter laws coming to a jurisdiction near you LUKE HOLLAND, PARTNER, SPARKE HELMORE LAWYERS

n the back of Labor victories in both the State and Federal Parliaments, the move is on to introduce industrial manslaughter to the South Australian and Commonwealth jurisdictions. Whilst limited details have been provided as to what might be proposed, elements of the industrial manslaughter offence in other jurisdictions may provide some indication of what the offence will look like in South Australia.

WHAT IS INDUSTRIAL MANSLAUGHTER AND HOW IS IT DIFFERENT TO MANSLAUGHTER GENERALLY? Section 13 of the Criminal Law Consolidation Act 1935 (CLCA) provides for the offence of manslaughter. The legal principles concerning this crime are well settled. This includes potential defences as disclosed in section 15A of the CLCA, which provides that it is a defence to a charge if “the conduct resulted in death – the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death.” The manslaughter charge has been successfully used in recent times by the Office of the Director of Public Prosecutions to convict an employer in an industrial setting (the case of Peter Francis Colbert).

WHY IMPLEMENT INDUSTRIAL MANSLAUGHTER? The advocates for change point to the limitations when prosecuting criminal manslaughter, namely a successful prosecution must identify an individual director or employee as the directing mind and will of the corporation. In modern companies, and particularly in large

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corporations, this can be difficult as boards and other leadership structures make such identification complex. This has resulted in successful criminal manslaughter prosecutions against small businesses rather than large companies because it is easier to establish the directing mind and will of the corporation. It is argued that establishing industrial manslaughter as a separate offence under work health and safety (WHS) legislation will address this shortcoming and provide a lever to senior management to increase attention on WHS and bring it to the forefront of their workplace culture - as serious criminal charges tend to do.

SO WHAT MODEL WILL THE SA GOVERNMENT GO FOR? Industrial manslaughter has now been legislated for in the ACT, Queensland,

Western Australia, the Northern Territory and as ‘workplace manslaughter’ in Victoria. Recent experience has shown that whilst harmonisation is a fair objective, each jurisdiction has taken a slightly different approach to industrial manslaughter as set out in the table above. A critical difference between the jurisdictions is whether the new offence is linked to existing duties under the relevant WHS legislation. This is important because if the new offence is linked to an existing WHS duty in SA, duty holders need only continue to comply with existing WHS duties to achieve compliance (even though a new negligence standard will be introduced via the WHS Act). The aim of the new offence is to capture only the most serious and negligent WHS breaches, which would already constitute a serious offence under current

FEATURE

WHS legislation. Importantly, linking the new offence to existing WHS duties will mean that the principle of ‘reasonably practicable’ will apply to most prosecutions. Penalties in the industrial manslaughter space are significant and largely similar across the jurisdictions: As at the time of writing, no detail has been provided about the proposed new industrial manslaughter offence in SA. However, it is clear that industrial manslaughter is coming. The model our Parliament seeks to adopt may not significantly differ from the existing manslaughter offence under the CLCA but if it motivates leaders within the boardroom to increase their focus on health and safety to save lives then it is definitely worth exploring. B

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FEATURE

A SNAPSHOT OF POTENTIAL INDUSTRIAL RELATIONS REFORMS FROM THE NEWLY ELECTED STATE AND FEDERAL GOVERNMENTS MAIDA MUJKIC, SOLICITOR, AND JOHN LOVE, PARTNER, MELLOR OLSSON

he newly elected Labor State and Federal Governments have promised to introduce significant employment law reforms that are likely to impact employers across all industries. If they enact these election promises, it will bring major changes to workplaces across Australia. Labor’s changes will mainly focus on secure work, with the proposed changes giving new protections to ‘gig workers’, casual workers and women in the workplace. In this article we provide a summary of key changes you can expect to be discussed during Labor's upcoming job summit held in September.

FEDERAL Paid domestic violence leave In 2018, the Fair Work Commission varied over 100 modern awards to include five days’ unpaid leave to deal with family and domestic violence Earlier this year, the FWC began its four yearly review of the family and domestic violence leave entitlements in modern awards and arrived at a provisional view that the entitlement to family and domestic violence leave should be increased to ten paid days. The new Labor Government has committed to legislating ten days paid family and domestic violence leave with the Minister for Employment and Workplace Relations, Tony Burke stating: the Government intends to introduce 10 days paid family and domestic violence leave into the National Employment Standards as soon as possible.

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Better deal for Gig workers Labor has promised to introduce greater regulation to the ‘gig economy’. Most gig-workers are classified as independent contractors in Australia and are not entitled to award benefits (i.e. minimum wage), superannuation, and access to unfair dismissal protections. Gig workers, such as ride share and food delivery drivers, will be provided with some minimum standards under the Labor Government. The Fair Work Commission will be given powers to set minimum standards for gig and other ‘employee-like’ workers. Currently there is little information about how Labor will implement this policy, however it is likely that the Commission would be given the power to make orders regarding entitlements such as minimum pay rates, superannuation and dismissal rights of contractors. These changes will ensure that more workers can access workplace entitlements that they otherwise cannot access. The changes will provide better protection from exploitation and dangerous working conditions for people in new forms of work. While some ‘gig-economy’ platforms have taken steps to improve conditions, a national approach to offer fair and decent pay and conditions will be welcomed by the thousands of Australians in the industry. Same job same pay Labor is expected to introduce ‘same-

job, same-pay’ legislation that would ensure all workers receive the same pay. The proposed legislation would make it unlawful to pay labour hire employees less than those who are employed directly with the employer to do the same job. In late 2021, Labor introduced the Fair Work Amendment (Same Job, Same Pay) Bill 2021 (2021 Bill) to address the long standing issues within the labour hire industry. The Bill had no real prospects of passing while the Coalition had a majority in the Parliament, however, it is now likely that an amended version will soon become law. Nevertheless, the 2021 Bill provides an indication of what new ‘same-job, same-pay’ legislation would look like. The 2021 Bill imposed obligations on the labour hire business and host employers that use labour hire. The obligations included: • Providing ‘pay and conditions which are no less favourable than those that would be required to be paid’; and • Not engaging any labour hire business unless that business agrees, as part of the terms of engagement, to comply with the ‘same-job, same-pay’ obligations. If introduced, the obligations were to form part of the NES, becoming binding on nearly all employers in Australia. The Government has indicated it is willing to delay these changes if more consultation is needed but there is a real possibility that ‘same-job, same-pay’ legislation will come into effect sooner rather than later.

FEATURE

Abolishing the Australian Building and Construction Commission The Government has confirmed that as part of its wide sweeping changes, the ABCC will be defunded during the October budget with legislation to abolish the ABCC to follow. In 2013 the Coalition restored the ABCC, banning secret and corrupt payments between employers and unions, cracking down on unlawful behaviour of construction unions and allowing parts of an amalgamated union or employer body to de-merge if dissatisfied with the larger organisation. Labor has proposed to abolish the highly politicised body in a plan to cut down the Government’s $1 trillion debt citing savings of at least $28 million. Labor has also stated that the ABCC pursues union officials over minor infractions, but does nothing about wage theft, sham contracting or worksite deaths in the construction industry. During Labor’s last term, it replaced a similar construction watchdog with the less intrusive Fair Work Building and Construction agency, however, experts predict that a new body will not be introduced with the Fair Work Ombudsman taking on the role as the enforcement body for the construction industry.

STATE The State Labor Government has committed to modernising workplaces by addressing the increasing level of insecure

work and has indicated it will introduce new laws to ensure that wages are paid and workers are protected. Industrial Manslaughter The Labor Government has committed to legislate to make industrial manslaughter an offence in South Australia. The proposed laws would apply where an employer acts recklessly and their actions are the primary cause of an employee’s death. The laws would significantly increase the maximum prison term to 20 years for company officers who negligently breach their duty to provide a safe workplace. The Premier has stated there are “too many avoidable injuries and deaths in workplaces”, and that the Labor party will “introduce industrial manslaughter laws with a focus on avoiding preventable deaths”. There has been some opposition to the proposed laws, with critics noting there is no need for them. Workplace deaths are currently covered by the offence of manslaughter in the Criminal Law Consolidation Act 1935 and recently strengthened work health and safety laws cover reckless actions that cause a workplace death. Similar industrial manslaughter laws have been successfully introduced in Queensland, Victoria, Western Australia, the Northern Territory and the Australian Capital Territory. It is likely South Australia will be the next state to legislate to make industrial manslaughter an offence.

Making Wage Theft a Criminal Offence The SA Labor Government has pledged to introduce legislation “to create criminal penalties for persistent and deliberate underpayment of workers, including wages and superannuation.” Wage theft refers to the deliberate underpayment of wages or nonpayment of entitlements and can occur in a number of different ways, including unpaid or underpaid hours or unreasonable deductions. In South Australia, it has been estimated that approximately one fifth of the state’s workforce is impacted by underpayments, with underpayments often occurring due to mistake or confusion. Current federal laws provide for civil financial penalties for businesses that deliberately or recklessly underpay their workers. Employers can face a fine of up to $13,320 for each offence committed by an individual and $66,600 for each offence committed by a company. The fines increase to $133,200 and $666,000 respectively for serious contraventions. If the proposed changes are introduced, employers engaging in wilful and deliberate wage theft could face up to 10 years imprisonment, as is already the case in Queensland and Victoria. While there may be changes to current proposals between now and legislation being introduced to Parliament, the next few years will see significant legislative changes in the area of employment law at both the state and federal level. B August 2022 THE BULLETIN

WORKPLACE LAW

An overview of the changes to the Return to Work Act NATHAN RAMOS, POLICY COORDINATOR, LAW SOCIETY OF SA

he Return to Work (Scheme Sustainability) Amendment Act 2022 Act (proclaimed in part on Thursday 28 July 2022) has been the subject of significant media attention and advocacy from stakeholders such as the Society in recent months, with a raft of changes to the Return to Work Act 2014 (SA) to have significant implications for some injured workers in South Australia. The frenzy of media coverage began in early June with the introduction of the Return to Work (Permanent Impairment Assessment) Amendment Bill 2022, which sought to overturn the principle established in Return to Work Corporation of South Australia v Preedy,1 and subsequently confirmed in Return to Work Corporation of South Australia v Summerfield,2 as to the combination of injuries, specifically consequential injuries, to be factored into a total assessment of whole person impairment. The stated reason for this was that an effective reversal of these decisions was urgently required to make South Australia’s workers’ compensation scheme sustainable into the future. Following advocacy by the Society, other legal bodies and Unions, that Bill was withdrawn and the first version of the Bill which ultimately became the Amendment Act was introduced into the House of Assembly on 15 June 2022, and contemplated amendments to the Return to Work Act 2014 (SA) which were far more complex than the earlier proposal. The Government subsequently tabled amendments to its Bill in the Legislative Council, many of which were reflective of the concerns raised by the Society in its submission of 24 June 2022, with the Bill passing on 5 July 2022 with these amendments as well as other amendments tabled by crossbenchers in the Legislative Council. As the dust has settled with the public

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debate and discussion having more or less concluded, this article attempts to summarise some of the key features of the amendments to the Return to Work Act 2014 and their implications. Confirming the Preedy/Summerfield Principle While the Government’s first attempt sought to address the perceived financial sustainability issue by doing away with the combination of injuries principle enunciated in Preedy and Summerfield, the current Bill instead enshrines that principle. Reference was made in the Bill’s second reading speech of 15 June 2022 that the ‘same injury or cause’ test as established in the Summerfield decision would, specifically, “remain the test for combination of impairments under the act.” Despite this reference, the drafting of the Bill itself did not succinctly establish that test to a sufficient level to not give rise to the potential for further test litigation. The Society flagged this concern in its submission noting that the Bill, as it was drafted at that stage, it did not fully reflect the perceived intention to confirm the Summerfield decision. The Society’s suggestions were subsequently followed when the Government amended sections 56 and 58 of the Act to substitute “same injury or cause” for “same trauma”. The Government’s amendments to section 22 also incorporate a direct reference to the Summerfield decision, noting that it is Parliament’s intention that section 22(8) be interpreted and applied in accordance with Summerfield. As a result, amendments to the Act now confirm the principle enunciated in the decisions of Preedy/Summerfield and has (hopefully) put its application beyond doubt. Increasing the WPI threshold to 35 % One key change effected by the Bill is

the increase by five per cent of the whole person impairment (WPI) threshold to constitute seriously injured worker status under the Act. This is achieved via an amendment to section 21 of the Act to clarify that a “seriously injured worker” constitutes a worker whose work injury has resulted in a permanent impairment of 35% or more (rather than 30% as originally specified). Despite this, the WPI remains fixed at 30% or more for those who have suffered psychiatric injuries. Practically, this amendment sets a higher threshold to enliven seriously injured worker status and thereby an entitlement to weekly payments ongoing to retirement age, medical expenses for life and a lump sum payment for noneconomic loss. A range of workers who would have been classified as a seriously injured worker under the Act, prior to the July 2022 amendments, will now not qualify and not be entitled to the range of benefits to which they would previously have been entitled. For those whose work injuries occurred on or after 1 July 2015, this amendment has been accompanied by an entitlement to lump sum compensation for economic loss for those with WPI assessments in the 30% - 34% range. Option to take a lump sum payment under section 56A Those who meet the newly defined seriously injured worker status now have the option to elect to receive a lump sum payment, rather than weekly payments as they would have previously, pursuant to new section 56A. The Society raised some concern at the lack of detail as to how this option would work in a practical sense, in that there was no detail in the initial draft of the Bill about how a lump sum payment would be determined in such a situation.

WORKPLACE LAW

The Bill was subsequently amended to clarify that such payments are calculated in accordance with preceding section 56. Before electing to receive a lump sum, there is an obligation for the worker receive a range of advice, being: • professional advice about the consequences of making an election; • advice from a qualified financial adviser about the investment or use of the money to be received on the election; and • advice from a recognised health practitioner about the future progression of their injury and likely impact on capacity to work. Where the worker’s whole person impairment amounts to 50% or more, their election must be approved by the Tribunal. Practically, those who meet seriously injured worker status now have another option (providing their injuries are not psychiatric/consequential mental harm or noise induced hearing loss) to receive a lump sum payment. Whether that election is in the best interests of the worker will clearly depend on the intricate facts of each case. Capping interim seriously injured worker status Prior to the Bill being passed, a determination that a worker is an interim seriously injured worker pursuant to section 21(3) would remain indefinitely. The amendments to the Act initially sought to place a cap on this, by imposing a 52-week time limit for interim seriously injured worker status (with the possibility of an extension). The Society’s submission reflected the reality as to how applications for seriously injured worker status via section 21(3) of the Act have been addressed and determined by the corporation in the past. Accordingly, the need for some flexibility

in this context, particularly through the conferral of some discretion on the SAET to restore interim seriously injured worker status, was emphasised. This aspect of the Bill was also subsequently amended along lines suggested by other organisations, with the Corporation now required to give the worker at least 3 months’ written notice of an intention to bring interim status as a seriously injured worker to an end, providing the worker with the opportunity during that time to furnish information to satisfy the Corporation that it is appropriate that interim decision should continue. Similarly, a further amendment ensured that SAET was empowered to continue payments to a seriously injured worker when a dispute is occurring. As a result, there now appears to be some limit to the time for which interim seriously injured worker status can continue, however is less arbitrarily defined than originally proposed. Transitional provisions The Transitional provisions set out in the Bill are quite complex and were the subject of considerable debate and discussion. The higher threshold of 35%, among other amendments proposed, will apply to those workers who have not had a final examination by any accredited medical practitioner before the “designated day”, which is to be fixed by proclamation. In other words, the new whole person impairment threshold, as well as a suite of other amendments to the Act will operate differently for those who have not managed to have their final whole person impairment assessment progress sufficiently before that particular date. The Society voiced concern at the retrospective operation of the proposed amendments and as to the details of the

proposed scheme by which they were to operate, as initially proposed. The view of the Society was that the application of the amendments should hinge on the date of the original work injury, rather than other dates which could have the potential to retrospectively impact workers who have already been injured, and that the scheme proposed would lead to a chaotic rush towards assessment during the balance of this calendar year. Subsequently, government amendments to the Bill as it was being considered in the Legislative Council clarified issues such as the operation of the transitional provisions to those existing seriously injured workers and interim seriously injured workers. Specifically, these amendments appear to incorporate a timeframe (understood to be an extra 12 months) before which existing interim seriously injured workers will be subjected to the higher 35% whole person impairment threshold. Also, the Bill incorporates a broad power which is included in section 115 of the Act which appears to provide the SAET with the ability to give directions it considers necessary to expediate whole person impairments under the Act. Hopefully this provides an ability for the Tribunal to swiftly deal with any issues which arise as a result of the transitional provisions. It appears that after a chaotic month or so the amendments to the Return to Work Act 2014 are finalised, however the real test will be their practical impact via the transitional provisions as the amendments commence in the coming months. B

Endnotes 1 [2018] SASCFC 58. 2 [2021] SASCFC 17.

August 2022 THE BULLETIN

FEATURE

ONLINE PORTAL TO LODGE CRIMINAL AND CARE & PROTECTION DOCUMENTS TO GO LIVE PENNY CROSER, STATE COURTS ADMINISTRATOR

he CourtSA portal for the Criminal, Special and Care and Protection jurisdictions will be launched on 29 August. When CourtSA launches in the Criminal, Special and Care and Protection jurisdictions in addition to Civil and Probate, you will be able to use CourtSA to: • start a case such as a bail review, appeal or an application for intervention order, access a criminal case if you are the legal practitioner representing the party on the case • file documents on a case • view your past and future hearings • view filed documents such as applications, affidavits, orders and records of outcome

WHAT IS COURTSA? CourtSA is a service that enables legal practitioners to lodge cases online and access information about their client’s case from anywhere at any time.

WHY HAS COURTSA BEEN INTRODUCED? In an age of fast internet and cutting-edge software, there is a growing expectation that services will be delivered digitally. By introducing a more streamlined, accessible, online court service, the CAA aims to make it more convenient for court users to interact with the courts. This means making the courts more accessible for everyone. It also means improving access to information. CourtSA is transforming the way justice is delivered in South Australia, forming the foundation of a suite of services to be offered in the future.

WHAT DO I NEED TO USE COURTSA? CourtSA requires access to a computer, internet, scanner and in some instances a printer. You can use any modern browser (Internet Explorer, Edge, Chrome, Firefox, Safari) but Chrome is recommended.

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HOW DO I USE IT? Everyone will use CourtSA differently. CourtSA is an electronic lodgement system not a practice management tool. It is not intended to be used to draft and settle documents or to replace practice management software.

WHAT DO I DO TO GET STARTED? To get started you will need to register a CourtSA account. You can create an individual or organisation account. If you already have a CourtSA account, you don’t need a new one for the launch of CourtSA in the Criminal, Special and Care and Protection jurisdictions. You can use your existing account. If you work for a firm or organisation, you don’t need to create an account. Someone in your organisation will do it and invite you.

WHAT IS THE DIFFERENCE BETWEEN AN INDIVIDUAL AND ORGANISATION ACCOUNT? In general, individual accounts are for those registering for themselves. Organisation accounts are to be created by a representative of an organisation who can then invite people to join the account. If you are legal practitioner that is part of a law firm or organisation, you should not need to create an account, as you will be invited to join your law firm or organisation CourtSA account by your firms account administrator. For example, the South Australian Police, the Legal Services Commission, the Crown Solicitor’s Office, the Department for Child Protection and the State and Commonwealth Departments of Public Prosecutions all have organisation accounts with users attached. Once you have created an account or been invited to join your law firm or organisation account, you can login and work through the home page options. If you would like access to a case, you

need to request case access. There are instructional videos which show you how to use CourtSA. Please see the CourtSA Help Centre for more information.

WHEN CAN I CREATE A COURTSA ACCOUNT? You can create an account now. If you are a private practitioner who works in criminal defence then you should create your account prior to the go live date.

WHAT SHOULD I DO BEFORE CREATING AN ACCOUNT? Before creating a new account you need to contact the Law Society of South Australia to update the email or address that is associated with the P or L code. The CAA receives information from the Law Society when P or L code details are updated and then update our case management system with this information.

WHAT IS CASE ACCESS? You must have access to a case to view it and lodge any documents on it. A person can only access a case if they are: • Representing themselves • A practitioner representing a party • A barrister representing a party • A party represented by a lawyer

WHO CANNOT ACCESS A CASE IN COURTSA? • • • •

Parent/s in a care and protection case Media Interested parties A member of the public

HOW DO I APPLY FOR ACCESS TO A CASE? You can request case access by logging into CourtSA and selecting ‘Access a case’ from the drop down menu, completing the ‘CourtSA Request access to a case’ form. You must provide a L code and P code when you fill out the form. A green

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verification notification box will appear with the details of the case. You will receive an email acknowledging you request. This is not your access. You will receive a second email with the link to the case.

HOW MANY CASES CAN I REQUEST ACCESS AT THE ONE TIME? There is new functionality which allows you to request access to multiple cases as long as it is the same defendant. Just click on the request access to an additional case link within the form.

WHAT IS AN ADM NUMBER? An ADM number is simply an administrative case number that is allocated to the case. This is the number Court Services use to process your request. It is not the case number you are requesting.

WHAT DO I DO IF MY REQUEST FOR CASE ACCESS IS URGENT? Requests for case access are not immediate. Each request is manually reviewed. Requests for case access usually take 24 hours to be granted but may take longer where there is an increased volume of requests. It is advisable that legal practitioners seek case access as early as possible. If your request for case access is urgent you will need to make the request using the ‘CourtSA Request Case Access Form’ CourtSA and then email CourtSA Registry Services using the enquiry@ courts.sa.gov.au email address noting in the subject of the email the ADM and that it is an urgent case access request. CourtSA Registry Services prioritise the processing of urgent case access requests.

WHAT HAPPENS TO YOUR CASE ACCESS REQUEST ONCE IT IS SUBMITTED? Your request will be reviewed by Court

Services. When approved you or your organisation will receive a case access link. When it’s clicked, the case will appear to all users of the firm or organisation. Click the link within the email to be directed to a CourtSA page with a confirmation notification. For the link to work you must be logged into CourtSA using the same email address as where the notification was sent. If you are logged in to another account, the link will not work. Once you are logged in to CourtSA go to ‘My Cases’, find the case you wish to access and click ‘View Case’. Your Notice of Acting will be available under the ‘Documents’ tab. Please note: when the link has been clicked, the case will be available to be viewed by all users in the law firm.

AS THE ACCOUNT ADMINISTRATOR DO I NEED TO ASSIGN A CASES TO A USER? The CAA has taken on the feedback of the legal profession in relation to assigning a case to a user. When CourtSA launches in the Criminal, Special and Care and Protection jurisdictions, the information barriers which existed in CourtSA law firm accounts will be removed allowing all users in a firm to see all the cases in the firm. Users will be able to see: • ‘My Existing Cases’ which will have all the cases that they have been granted access to or initiated. • ‘My Organisation Cases’ which will have all the firm or organisation cases. The ‘Assign a case to a user’. • functionality will be removed from law firm accounts. Essentially, information barriers have been removed for criminal which means all users in the firm or organisation can see all the cases. It is up to the user to act properly and not access cases they don’t have a right to see.

If a law firm or organisation would like to request an audit to check what cases have been accessed by their users, then they can do so by contacting CourtSA Registry Services. The information that can be provided is limited to the date and time, IP address and page viewed or submitted.

HOW DO THE COURTSA FORMS WORK? CourtSA uses a combination of smart forms and uploads. A smart form requires you to enter your data directly into CourtSA. Using this data, CourtSA will create your court documents. In contrast, an upload requires that you upload your already completed document to CourtSA and provide some information about it. A large number of the Civil forms were smart forms whereas the majority of the criminal forms are uploads given the feedback provided by the legal profession around the Civil smart forms. Over the counter forms are paper forms which you lodge over the counter with Court Services. These cannot be lodged online through CourtSA.

WHAT FORMAT DO DOCUMENTS NEED TO BE IN? CourtSA will accept standard office application types such as Adobe PDF and Microsoft Office (Word, Excel). Draft orders should be uploaded as a word document.

IS THERE ANY GUIDANCE AS TO HOW TO LODGE FORMS? The CAA website provides steps on how lodge prescribed forms.

WHAT HAPPENS TO A DOCUMENT THAT IS LODGED USING COURTSA? Once a document has been lodged it will either be automatically accepted for filing or reviewed by Court Services. The August 2022 THE BULLETIN

FEATURE

Courts are unable to comment on how long the review process might take given it can vary depending on staffing levels and volumes received. Please take case access approvals or document reviews into consideration for compliance with dates set out in the Rules.

WHAT IS THE MAXIMUM FILE SIZE THAT CAN BE UPLOADED? The total size of all documents uploaded per form can not exceed 200MB. Affidavits (if large) can be split into individual volumes (not exceeding 20MB each) and each volume uploaded.

WHERE DO MY NOTIFICATIONS GET SENT? There are a lot less notifications in the Criminal, Special and Care and Protection jurisdictions than they were in Civil and Probate. However, any notifications will be sent to the P code email address.

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WHERE CAN I FIND THE JOINT CRIMINAL RULES 2022 AND THE UNIFORM SPECIAL STATUTORY RULES 2022? The Rules will be on the Courts Administration Authority website. If you need further guidance around rules or forms, please contact the Law Society of South Australia who are able to assist with any questions.

WHAT SUPPORT IS THERE FOR LEGAL PRACTITIONERS USING COURTSA? A range of support is available for legal practitioners from written resources to videos. You can locate information about CourtSA on the CAA Website. The CAA website includes useful information on setting up your accounts, unlocking your account, resetting your password, updating your details, case access, inviting a user, how to use the CourtSA forms, types of cases you can start, how to lodge

documents and a glossary. There are also videos to help you to navigate the system. If you have questions, you can also contact the CAA via live chat on the CAA website, by phone (08) 8204 2444 or email enquiry@courts.sa.gov.au During this time of change there may be longer wait and process times. We thank you for your patience and understanding.

WHAT IF I USE COURTSA AND IDENTIFY SOMETHING I THINK SHOULD CHANGE? The CAA welcomes your feedback and suggestions for improving CourtSA. Please provide this to the CourtSA Registry Services Team via email at enquiry@courts.sa.gov.au. There will be a continual process of improvement. An enhancement list is being maintained with suggested changes to CourtSA and additional functionality will be considered and if approved will be rolled out in future releases. B

SCHOLARSHIP

Indigenous scholarship puts budding lawyers on path to careers as strong justice advocates

he Law Society congratulates Mikeyli Hendry and Cindy D’Angelo on both being awarded a GDLP Indigenous Law Student scholarship. The scholarship program is a joint initiative of the he Law Society and The University of Adelaide in which Aboriginal or Torres Strait Islander Adelaide University Law Students who are awarded a scholarship will have their mandatory practical legal training course program fully paid for. Mikeyli and Cindy talk about what the scholarship means to them and what their future plans are in the law. Mikeyli Hendry Being awarded this scholarship has taken a huge financial load of my shoulders. Tertiary education, let alone a law degree often deters Indigenous people away from studying because of the costs of the degree, textbooks and added expenses such relocating from their community. The GDLP scholarship has taken away the added financial stress and will allow me to complete my Practical Legal Training on time. When I started my undergraduate degree I was unaware of the Practical Legal Training requirements that I needed to complete after I graduated. I am grateful that there are scholarships like this available to allow more Indigenous lawyers to enter and participate in the profession. My time at University has been rewarding but also very challenging. I have enjoyed University life and taking myself out of my comfort by studying a challenging degree. I have had some obstacles to overcome but have always had

support from the University and my family to overcome them. During the later years of my degree I started completing internships and in my final year I had to juggle study with two casual legal jobs. This made my final year of study very busy and meant I had to be extra organised to complete all my assessments on time which was a struggle for me. My family and community are in Alice Springs, NT and I had to move to Adelaide to complete my degree. Living interstate meant that I needed to juggle finding the time to visit my family, but also at times stay in Adelaide during university breaks to ensure that I could keep on top of my study. I think law school is great at acknowledging that there are historical injustices which still impact Indigenous people today. However, there still steps to take in incorporating current issues in the curriculum and implementing more subjects solely about Indigenous issues in the areas of human rights, government policy, incarceration, sentencing and Aboriginal Lore. Indigenous justice issues are complex and I think being an Indigenous law student definitely gives me a different perspective of the legal system. I am passionate about social justice and want to practice in the areas of criminal law or native title. I also have a strong interest in family law and issues in child protection and children in care. Youth justice and human rights law are also passions of mine that I would like to practice in. After completing GDLP, I plan to start my career by practicing in one of the areas of law I am interested in. I would like to be able to work in a space where I can use my knowledge of the law and my experiences to advocate for Aboriginal communities and other groups like children and other minority groups.

Cindy D’Angelo Thank you to the Law Society of South Australia and the University of Adelaide for awarding me the GDLP scholarship. I feel honoured to be recognised as a worthy recipient of this merit-based scholarship. The financial assistance will be extremely helpful to me in meeting the costs of my GDLP fees. I am a Kokatha/Mirning woman, a mum of two young children, and I recently completed the Bachelor of Laws degree at the University of Adelaide as a mature age student. I am on track to complete the GDLP in August this year. The subjects I enjoyed at university include Employment Law, Corporate Law, Medical Law, Dispute Resolution & Ethics, Wills and Estates and Torts, and I can see myself working in any of these areas in the future. I am open to exploring various practice areas to realise my own niche area that is suited to me. Prior to undertaking my law degree, I worked for many years in the Aboriginal social justice arena, specifically in the areas of health, education and employment. Going forward, I aim to continue to contribute to Aboriginal social justice issues in a meaningful way, alongside and part of a successful legal career. One of the reasons I studied as a mature age student was to be a role model for my children and to demonstrate that they can achieve anything they put their minds to and work hard for, and at any stage of their life. I also hope to inspire my wider family and broader community that anything is possible. B August 2022 THE BULLETIN

WORKPLACE LAW

Getting on with it – The pragmatic, solution focused approach of the SAET in resolving disputes MICHAEL ESPOSITO

he use of alternative dispute resolution (ADR) to resolve disputes has been particularly embraced in the South Australian Employment Tribunal (SAET). According to President of the SAET, Justice Steven Dolphin, members of the SAET understand the culture of industrial relations and workers compensation and appreciate that compromise is often the best way for the parties achieve most of what they want out of their litigation. “The costs of litigation, in terms of time, expense and personal stress, can be alleviated, if parties are prepared to compromise and reach agreement about the outcome of the litigation,” Justice Dolphin said. “I often say to litigants, ‘whilst you can afford to win this dispute, can you afford to lose?’” “A resolution that the parties voluntarily enter into themselves, is usually the best and most enduring way to finalise the litigation.” Conciliation Conferences Conciliation is compulsory under s (43) of the South Australian Employment Tribunal Act. Conciliation conferences take place at the outset of the litigation and is are conducted by Commissioners, who are not judicial officers but are nationally accredited mediators. Conciliations conferences are subject to a six-week time limit, a deliberately strict timeframe to ensure parties move quickly to gather relevant evidence. A Commissioner holds an Initial Directions Hearing (IDH) to assess what is needed for Conciliation to take place, such as further evidence or medical reports. About two thirds of disputes in the SAET are resolved at the conciliation conference stage. The remaining third are heard by Presidential members (judges and magistrates of the SAET). “Conciliation is very successful at resolving disputes as the Commissioners are very skilled in ADR techniques and

24 THE BULLETIN August 2022

for the most part the practitioners and parties appreciate that resolving the dispute early is often the best way to proceed,” Justice Dolphin said. Hearings and Determinations ADR been a feature of industrial disputes and workers compensation for decades, and as such all Presidential members have all twice had experience in ADR as practitioners. Disputes are case-managed by Presidential members using modern judicial case management methods. In colloquial terms, these methods aim to instil a culture of “getting on with it”, by using a hands-on approach ensure that the parties are conducting their litigation quickly and efficiently. When a case is referred to a Presidential member, a Commissioner will provide a written Assessment and Recommendations document to the parties. That document often advises parties as to the strengths and weaknesses of their case and can recommend ways to resolve the case. The Presidential member will then assess the case and advise on matters such as whether the case should it be listed for hearing straight away, if more evidence needed, or if parties are properly focussed on the correct legal approach. “Presidential members take an active role in the litigation and do not passively just allow cases to meander through to hearing;” Justice Dophin said. “If a party wishes to rely on any particular evidence, they must persuade the Presidential member that it is relevant to the issues in dispute.” “Presidential members will often question the need to either call a witness or cross-examine any particular witness if the evidence of that witness is uncontroversial. If evidence has not been arranged on a relevant topic, a Presidential member will often enquire why not,

SAET President, Justice Steven Dolphin and ask which party should obtain that evidence.” President Justice Dolphin said that assessments from Presidential members are usually very much appreciated by the parties as they give parties a clear sense of the trajectory of their case. If a case is particularly unmeritorious, for example lacking in jurisdiction, a Presidential member will often hear arguments as to why that case should not be struck out or dismissed. Such issues are to be heard and determined at an early stage of the proceedings to avoid prolonging potential unmeritorious litigation. At the appropriate time a Presidential member may conduct a Settlement Conference to assist the parties to resolve their differences. Judicial settlement conferences usually take between 1-3 hours. In settlement conferences, Presidential members generally get involved in exchanges of settlement offers, and provide assessments on the merits of parties’ cases.

WORKPLACE LAW

Presidential members might hold private sessions – and often give robust assessments of the strengths and weaknesses of parties’ cases. These assessments usually help give parties clarity about the merits of their case and help to dispute the key matters in dispute. On occasions, and in the appropriate case, a Presidential member may prepare a written assessment of merits document, which can be helpful in dealing with complex situations or large corporate entities that might have hierarchical management structures. This is usually successful and appreciated by practitioners. Most litigants are looking for ways to resolve issues and appreciate Presidential members assisting them in resolving them. Presidential members talk to parties about implications of going to trial, the realities of the experience, and potential difficulties if they have never been to court or have given evidence before. Presidential members can also emphasise what pieces of evidence are relevant, and how the evidence may be viewed. The involvement of Presidential members is not to sway parties’ decisionmaking, but to subject parties to a “reality check”. This pragmatic approach aims to ensure that parties have a realistic view of the prospects of their case. For example, disputes will often hit an impasse over a settlement figure. Presidential members play an important role in helping parties agree on figure, so they do not get bogged down in minor differences in cost disputes. Justice Dolphin said that litigants and the practitioners usually want to hear what a Presidential member’s opinions are on their dispute before they commit to running a trial. Settlement Conferences, conducted by Presidential members have a high rate of success. Even if a number of settlement

disputes do not resolve the dispute entirely, they usually narrow the issues in the dispute. If a case does not settle after a Settlement Conference, the Presidential member who conducted that conference has no further involvement in that case thereafter. Another Presidential member will hear the case in court. “There are always those cases that cannot be resolved by agreement and have to be heard and determined in the usual way in a court room,” Justice Dolphin said. “Such cases are where there are seriously contested facts, differing medical opinions that can’t be resiled and where a particular interpretation of a legislative provision is advocated for.” Mediations Traditional mediation is available for more complex, difficult cases such as workplace deaths and large and entrenched industrial disputes. Again, Presidential members conduct mediations, and to date the SAET has not had to use private mediators. SAET published Mediation Guidelines in July this year, and have been published in full in the Bulletin Mediation is different to Conciliation and Settlement Conferences. They are usually listed for half a day to a full day, and, as the guidelines suggest, are more facilitative than evaluative. Statistics The following statistics for the 2021-22 financial year illustrate the significant role that ADR plays in resolving disputes in the SAET. Notably, applications received by SAET have increased by approximately 23% in the last two years. This trend looks likely to continue in 2022-23. Justice Dolphin noted that resolution timeframes in SAET would be improved further but for the timely receipt of medical evidence, often from more than one medical practitioner.

• • • • • • •

•

The SAET received 6,453 applications The SAET resolved 6,344 applications, with a Clearance rate of 98% Approximately 66% of applications were resolved by Commissioners at the Conciliation level. Approximately 34% of applications resolve before a Presidential member (including cases that run to judgment). Approximately 350 cases were listed for hearing before a Presidential member in 2021-22. The SAET produced 225 written judgments in 2021-22, meaning 3.5% of applications go to judgment. The Median time from lodgement to resolution at Conciliation was 14 weeks (thus meeting the target of under 16 weeks. The Median time from lodgement to judgment by Presidential member was 60 weeks thus meeting the target if under 80 weeks).

Conclusion Justice Dolphin said that the SAET is a pragmatic forum that recognises that most cases involve everyday working people whose whole livelihoods may be at stake. “The vast majority of disputes require practical, feet-on-the ground thinking. The cool detached indifference, often present in other areas of legal practice, is largely absent in SAET as the litigation will be about a particular problem within any one person’s working life,” Justice Dolphin said. “Resolving that problem usually comes from a realistic common-sense approach. Whilst legal technicalities of one sort or other often arise, we tend to focus on achieving a result that the parties can live with, rather than emphasising their differences.” “ADR strategies are built into the litigation journey at SAET. Our strategies are designed to ensure quick and effective justice for working people. And our results show that we at SAET are meeting those aims.” August 2022 THE BULLETIN

WORKPLACE LAW

SAET Mediation Guidelines 1. Introduction Where a case is before a Presidential member for hearing and determination, the case, or any aspect of it, may be referred to mediation pursuant to s 46 of the South Australian Employment Tribunal Act 2014 (SAET Act). 2. Purpose Mediation is an informal process in which parties to a dispute with the assistance of an impartial mediator identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The purpose of mediation is to achieve a quick and cost effective settlement or at least refine or narrow the issues in dispute to avoid the stress and expenses of proceeding to trial before a Presidential member. Mediation is a separate and distinct process that differs from conciliation and settlement conferences. 3. Procedure Unless otherwise determined by the President, the mediator will be a Presidential member. If so, all contact to the mediator should be to that Presidential member’s Chambers. Whilst the procedure will ultimately be determined by the mediator, it is expected that the process will be more facilitative than advisory or evaluative in nature. The mediator’s role is to facilitate direct communication between the parties. The mediator has no advisory or determinative role regarding the content of disputes and is not tasked with expressing views as to the likely outcome of the dispute if it proceeds to trial before a Presidential member. 4. Preparation Prior to mediation, the parties may be required to attend a Pre-Mediation directions hearing. At that hearing, directions may be made to facilitate the mediation process, and to ensure that the parties are fully prepared for mediation day. Mediations will generally be listed for one half day, or one full day. One party may be ordered to prepare an agreed Mediation Book which will contain all necessary documents to be referred to in the mediation. The Mediation Book will remain confidential to the mediation. The parties may be ordered to prepare Position Statements setting out their respective cases including a history of settlement

26 THE BULLETIN August 2022

negotiations and settlement offers. In the ordinary course, the Position Statements will form part of the Mediation Book. Unless otherwise ordered by the mediator, the mediation will be conducted in person at SAET’s premises. The mediator may permit parties to attend by videoconference or teleconference. If parties have any questions, concerns or special needs for the mediation, they should raise them with the mediator as soon as possible prior to mediation. 5. Role of the parties Parties and their representatives will do all things reasonably necessary for the proper, expeditious, and cost-effective conduct of the mediation. Parties will comply with any direction made on procedural matters without delay. Parties will attend the mediation with full authority to make decisions themselves and reach settlement. The mediator may authorise the attendance of persons other than the parties and their legal representatives at the mediation. Parties and their representatives are expected to actively participate in the mediation, show respect and courtesy in communicating, and negotiate in good faith with a view to reaching settlement. The parties are encouraged to communicate openly. Mediation attracts the same privilege to defamation as court and tribunal proceedings. Evidence of anything said or done during mediation is inadmissible in proceedings before the Tribunal, except by consent of all parties to the proceedings.

opening introductions in turn setting out the relevant background, identifying the issues in dispute from their perspective and outlining what outcome they seek to achieve. During their opening, each party will have the opportunity to speak without interruption. The mediator may assist the parties by asking them questions to clarify specific points. After each party has made their opening, the mediator will facilitate direct communication between them and assist them to understand each other. The mediator will encourage an open discussion about the issues raised. The mediator will ensure that breaks are taken during mediation, if necessary, to enable parties time to consider the issues and their positions. The mediator may meet with the parties separately from each other in private sessions. These private discussions are an opportunity to confidentially explore the issues in dispute, party interests and positions, discuss strengths and weaknesses, benefits and risks, and to develop options for resolution in preparation for negotiation. The mediator may also meet with the parties without their representatives present. The mediator will facilitate direct negotiations between the parties and may lead discussions with all parties together in joint session or may relay offers between the parties. The mediator may adjourn the mediation to a later date, either under the conduct of the same or a different mediator.

6. Mediation Day The parties are required to attend the mediation at least 15 minutes prior to the allotted start time and are to wait to be shown into the mediation room. The mediator will: • commence mediation in joint session, unless good reason exists not to; • commence by welcoming the parties and introducing those in attendance to each other; • explain the mediator’s role; • explain that mediation is a confidential and without prejudice process, and will seek a verbal undertaking in that regard from those present; and • explain the mediation process. Parties are expected to make brief

7. Reaching agreement If an agreement is reached, in whole or in part, it will be recorded in writing for the parties to sign on mediation day. Orders may be made at a later time to finalise the proceedings. If an agreement is not reached, the mediator will discuss with the parties what the next steps in the proceedings will likely be including how to prepare for trial. The mediator will not hear and determine the proceedings after conducting a mediation unless all parties agree to his or her continued participation. These Guidelines have been approved by the President of the South Australian Employment Tribunal in accordance with r 10(2) of the South Australian Employment Tribunal Rules 2022. B

CLOUD COMPUTING

An analysis of the Law Society’s Cloud Computing Guidelines: The security risks of cloud-based systems versus on-premises systems MARK FERRARETTO, SOLICITOR, EZRA LEGAL

his is the last of five articles that analyse the Law Society’s Cloud Computing Guidelines against candidate cloud systems and on-premises systems. My thesis is that the caution expressed in the Guidelines should be applied as much to on-premises systems as cloud systems to obtain the best risk profile for a practice’s information systems. In the previous articles we evaluated six candidate cloud systems, and an onpremises system, against the Law Society’s Cloud Computing Guidelines. We saw that cloud services can provide better management of security and confidentiality issues while also providing a more reliable service than on-premises systems. In this article we summarise our analysis. In my view, the Law Society’s Cloud Computing Guidelines should be re-named to ‘Information System Guidelines’. Doing so recognises that the risks and issues the Cloud Computing Guidelines discuss are just are relevant to the on-premises context as the cloud context.

It is important to bring the caution and diligence in the Cloud Computing Guidelines to the on-premises realm. A perceived bias against cloud systems has the effect of potentially lulling practitioners into a false sense of security with respect to their on-premises systems. There is a risk on both sides. We need to be aware of this. In my view at least, in many circumstances a cloud solution is the better option when compared against an onpremises system. This is particularly the case for services that provide for control over data location and robust security and incident management practices. For storage of non-practice management system data, that is emails, files and so-on, I would venture to say that cloud is best practice. Cloud services provide a lower risk profile than managing that same data on premises. However, I do not extend my conclusion to the free and/or consumer services, such as Dropbox. These services invariably do not give their users any control over data

location and may re-sell data. Google, for example, reads the contents of emails stored in Gmail. It is the enterprise systems that should be used. Confusingly, many cloud providers use the same product names for their consumer and enterprise offerings. Generally, if a service is available for free, or has a free component, it should not be used. For practice management systems, the overriding issues are governed by the software provider. Some don’t ‘do cloud’ for example. Data portability issues exist in this context not because of the cloud/ on-premises question but because of the proprietary storage of data in practice management systems. My hope, as an avid cloud services user, is to dispel wariness of cloud systems. Cloud systems bring with them advantages in risk, availability and data security, not to mention the convenience of having data at your fingertips. At the very least, on-premises systems should be evaluated with the same scrutiny as is recommended for cloud systems. B August 2022 THE BULLETIN

ADVOCACY

ADVOCACY IN THE PROFESSION – IS IT STILL JUST AS RELEVANT? The Law Society’s Advocacy Committee sat down with Justice Livesey, President of the Court of Appeal, to discuss the modern Advocate. ADVOCACY COMMITTEE (AC): Justice Livesey, how did you start your advocacy career? USTICE LIVESEY (JL): After making enquiries I went to a firm which I knew encouraged people to go to Court. That was a firm called Ward & Partners. It had a very large amount of personal injury and insurance litigation and many members of the firm in the late 80’s did trials every week. There were other firms doing it too, such as Fisher Jeffries, Wallmans and of course the Crown Prosecutors Department. I got the job at Ward & Partners after I spent just under a year as a Judges Associate.

AC: How did those firms encourage you to actively advocate on behalf of their clients? JL: It was just part and parcel of how the firms worked. When I started out I was only allowed to do dog and parking prosecutions for a year. I was a bit annoyed about that but a couple of those went on appeal to the Supreme Court so that was quite exciting. The firm just assumed that I would do those appeals. Then after a year I was allowed to do whiplash cases and after another year or so more serious issues and injuries and it went from there. I suppose 5 years out I was doing nervous shock, brain damage cases and small insurance cases. The Bar was a lot smaller and by and large it was the senior partners that had left the firms and gone to the Bar that we would brief on the big cases. There were silks such as John von Doussa QC, John

28 THE BULLETIN August 2022

Mansfield QC, Bruce Lander QC, Terry Worthington QC and Tim Anderson QC. Most of the trials in those days were in the District Court and most of the trials were being done by people in firms. As I picked up my trial work I started doing cases against people like David Smith, David Lovell and Richard White. They were all at the bar but they weren’t QC’s at that stage. Later I juniored silks such as Tony Besanko QC, Robert Lawson QC and Tom Gray QC. AC: By having an employer that encouraged you that way, did that help you stay at the firm as this might be important for employers presently? JL: I think it did. It was easier in that that was the expectation that you wouldn’t go to the bar until you had been a partner in a firm. That has changed markedly in the last 25 years. But I do think that contributed to the job satisfaction. Now you shouldn’t think that everyone stayed in the trial list. A number of people said we don’t want to do trials anymore and we don’t want to do appeals. So it was really very much a question of choice but a choice made after having had the experience of doing it. That was the way the firm was set up - it wasn’t set up to brief everything out that was thought to be an unnecessary expense. AC: What advice can you give to new advocates or those experienced practitioners that are a bit rusty and reluctant to argue things like Interlocutory Applications or Guilty Pleas?

Justice Livesey, President of the Court of Appeal

JL: Well the first thing is to do it. You have to start doing it and keep doing it. There is no substitute for having the experience of actually putting an argument, having the argument criticised by your opponent or by the Court and having to deal with that in the course of the argument. The second thing is to prepare thoroughly and there are ways of going about preparation. You start with the Act or Rules under which you are operating, the leading authorities, what the key facts are and how you say the law should be applied to those and then you think about how you are going to persuade the Court to make the order your client requires. Now if you are rusty then you need to put in more preparation than you would if you are practised at doing it. So that is one of the things to bear in mind - that you have to prepare more than you would if you are doing it routinely. You cannot expect to charge for that or get paid for it, it’s part of your own development that you over-prepare so that you are well prepared and confident when you get into the Court room.

ADVOCACY

AC: Looking back on your career as an advocate but in particular as a solicitor advocate what advice would you give to your younger self ?

bodies, some environment stuff, some commercial cases, so all sorts of cases. Eventually we got work from Lloyds of London syndicates, so we got directors and officer’s liability cases and things like that, so just getting a chance to do a range of things and putting yourself out to do a range of things was really helpful.

JL: I was very keen about wanting to be in Court, perhaps a bit too keen, but I just kept doing it and I kept practising it and I took up as many advocacy courses as I could and did a number of those Law Society advocacy courses that were being run on weekends. I went to a couple of interstate ones. I read up about advocacy and advocates and just tried to keep immersed in the topic. I was doing that at the same time as I was taking as many briefs as I could in the firm. So we had a group in the firm that were partners that were doing briefs a lot and whilst we might have started in insurance I was lucky in those days to get chances to do cases for bank clients, local and district councils, some statutory

AC: Throughout courts and tribunals there appears to be a direction towards written submissions. How do you think this has changed if at all in the role of a solicitor advocate? JL: I think it’s got harder in the sense that, like everything, standards and expectations have risen. So it’s harder to meld running files or managing teams with being in Court a lot. I was fortunate because there was an expectation that would happen. As there were a number of senior people in the work group I was in I was able to delegate a bit, nick off to Court and do

cases. I think it’s really just a question of how you structure your practice. In terms of written submissions, it’s really just a question of recognising that because expectations have risen, more work is required. When I say required, required to be done before getting into the Court room. That’s not just the oral advocacy, it’s about setting out very clearly what the basis for the case is and what the justification for the orders or outcome you seek might be. I have to emphasise that when you start doing that it’s hard and you are not going to do it well or quickly. You just have to practice it. Doing it and doing it repeatedly helps you improve. You get to see how other people do it, you read the judgments that come down based on the arguments and you can see what works with the Judges and what doesn’t, but it’s really just about continuing to do it. You have to do it routinely and by doing it routinely you improve.

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9 Springbank Street, Tullamarine, 3043 August 2022 THE BULLETIN

ADVOCACY

AC: As you sit as the President of the Court of Appeal is there a difference skill set to appellant advocacy as opposed to Trial advocacy? JL: Yes and no. Some of the basics are the same across the board. It doesn’t matter if you are putting an argument in the Magistrates Court or the Workers Compensation Tribunal or the Court of Appeal. The argument has got to be well thought through, well planned, wellstructured and clearly articulated. What is very different is that with an appeal everything has happened and as Chief Justice Allsop said to me a while ago, working as an appeal judge is a little bit like working as a pathologist in a mortuary as you are picking over the corpse and working out what happened or should have happened. Whereas in a trial the trial judge is documenting things as a matter of history about what has happened, making factual findings. So, for example in a trial it’s necessary to give very clear thought to what findings you will need and what the reason is for making those findings might be. That’s the emphasis at trial. On appeal the findings are there and the question is whether they should have been made or open to be made. So it’s necessary to focus more on what the error may or may not have been and how that error can or cannot be corrected. Now that requires thinking about the case differently but using the same skills. In both trials and on appeal, the

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advocate has to be flexible. They are both fairly dynamic processes. You are never going to know exactly what a witness will or won’t say. And likewise on appeal you are never going to quite know what each Judge is going to say. However with appeals Chief Justice Doyle explained that the process is in a sense easier for the advocate because there is only so much of the case that’s available to the parties and to the Court; it’s all in the appeal books. So you can read that and reread it and know it and then think about what the issues are that arise on those materials and thoroughly prepare, if not over prepare, on what those issues are before making decisions about how you are going to present the case, whether it be for the appellant or the respondent. Ultimately, despite those differences, I think the skill sets are largely similar. AC: Since your time on the bench on the opposite side of the bar table have you picked up any particular attributes or nuances of the best advocates that appear before you? JL: I think the skill set of the best advocates is largely common across the board and that is doing a lot of work to prepare the case so it is well known. The work goes into how to distil the essence of the case, and then being succinct and clear in Court. It’s very hard to be succinct and clear without a lot of effort. The best advocates are the ones that make it look simple and easy because they have thought about it more than

the advocates that haven’t done the work. When the well prepared advocates explain what the case is about from their perspective it comes across very easily because it’s been rehearsed. I don’t mean the lines have been rehearsed or that the submissions have been practised repetitively but the key concepts are very clear in the advocate’s mind, so that when a question comes, the answer seems to come more easily from the better prepared advocate. And, of course, the really top advocates seem to just be chatting to the Court rather than formally presenting because they are completely at ease with the subject matter and the topics and they are going straight to it. No one is wasting time by going to the basics of the case, that’s all assumed - that’s the point of the written work, to lay that out. The really top advocates go straight to the key points. They might only be addressing 3 points in the appeal. AC: In your career in private practice both as a solicitor advocate and later at the Bar you were involved in lots of alternative dispute resolutions, such as mediations. With the increasing emphasis on alternative dispute resolution, do you think there is still a place for advocates with ADR and if so, in what way? JL: I think it is critical. It’s very hard to have a mediation going well for the client if the advocate for the client hasn’t got to grips with the case and clearly understood the strengths of the case as well as its

ADVOCACY

risks. So understanding the strength of the case means that the opening statement will be short, concise but compelling, understanding the risks means that concessions can be made in private with the Mediator and the advocate has a very clear idea about where this case will end up if it gets litigated. That’s important because the client needs to understand what the likely outcome is going to be or what the range of outcomes might be. The contrast with that is where the advocate is not well prepared and simply mouthing what the client wants or mouthing in a superficial way the advantages of the case. That case is very hard to settle because the risks won’t be appreciated and the offers won’t be properly evaluated. It really is all about clarity of thought and expression. If the case is being explained simply and clearly enough then that will be understood by the other side and by the mediator. AC: With the distribution of COVID in the legal industry, the legal industry has had to adapt extremely quickly. How have advocates had to adapt if at all? JL: In the Supreme Court we made a decision very early on that we would continue to keep sitting as much as possible. That meant that we had to adopt a number of new or slightly different practices. Fortunately, we have continued to sit with very few interruptions throughout the two year period. What

that has meant is that telephone attendances have been used much more frequently. Video appearances are much more common than they used to be. I have just heard a matter as part of the general list which has gone over about two weeks where two of the parties have been appearing by telephone, the experts generally on video or telephone. That creates challenges because sometimes the technology is not up to the mark and for the advocate it’s much more important that all of the things I have mentioned are done, that the advocate really thinks through very clearly what the case is about and distils the essence of the case and is succinct. It’s very hard to talk to the point on the telephone or on video. It’s much harder to listen to so it’s even more important that good advocacy be used during COVID. AC: Do you think these changes for advocates are here to stay? JL: I think they are here to stay. I think people have changed their practices. Having said that, the Court of Appeal has never discouraged personal appearances, subject to all the proper protocols being observed. By that I mean social distancing and masks and so forth. But we have had a number of interstate barristers coming into Adelaide for appeals. Having said that we have a number of barristers not only interstate but also locally who are appearing by video where it’s necessary. I think we have just become more flexible and I think that will stay with us.

AC: Are you positive for the outlook of future advocates? JL: I’m extremely positive and optimistic that there will always be a role for good advocates whether they are in firms or at the bar, because the Court will always value an advocate who is able to clearly articulate the client’s case and clearly articulate what the problems with the opponent’s case might be. That’s invaluable. It’s very hard to decide a case without good assistance from both sides of the bar table and even harder when there are multiple parties. The Court values that assistance, particularly when the advocate has been careful about how to articulate particular points, not being too broad about those points, supporting them by reference to the evidence or legal authority, demonstrating where the difficulties in the other case lie. That’s just critical and the better advocates do that. I see this being something that will stay with us. If anything, the use of the different media over the last two years has ensured that just because we don’t have the traditional trial or the traditional appeal with everyone in the same Courtroom, that doesn’t mean that hearings won’t continue. I think, if anything, that’s ensured the longevity of Court processes, whether they be trials or appeals. The Advocacy Committee runs educational workshops for all practitioners to introduce and advance advocacy skills in the criminal and civil jurisdiction. B August 2022 THE BULLETIN

TAX FILES

Disclaimers and some taxes BERNIE WALRUT, MURRAY CHAMBERS

INTRODUCTION TO DISCLAIMERS

disclaimer is simply a refusal to accept a benefit, usually some form of gift of property or right,1 though it may extend to disclaiming a position, such as the appointment as a trustee,2 or some form of power, whether coupled with an interest or not.3 In FCT v Cornell4 Latham CJ quoting from Holroyd J in Townson v Tickell5 described the basic principle that underpins the ability to disclaim a gift or benefit: ...an estate cannot be forced on a man .... he is supposed to assent to it, until he does some act to show his dissent. The law presumes that he will assent until the contrary be proved; when the contrary, however, is proved, it shows that he never did assent ... and ... that the estate never was in him. Any evidence of actual dissent to the benefit is sufficient.6 Further as a disclaimer acts by way of avoidance the general requirements as to writing for dispositions do not appear to apply,7 though in some situations a disclaimer may require a deed.8 As the disclaimer operates by way of avoidance rather than by way of disposition or conveyance,9 the benefit the subject of the disclaimer does not vest in the person disclaiming the benefit.10 Whilst the disclaimer is often described or may appear to have a retrospective effect, what it does is cause a cesser of the gift from the time of the disclaimer, in effect extinguishing the right to the benefit, as though it never existed.11 The disclaimer can only be made with knowledge12 and must be made within a reasonable time of the person entitled to the benefit becoming aware of the benefit, at least in general terms.13 There may be a difference when the time runs from in the case of an inter vivos gift and a testamentary gift.14 In most situations, once assent is given to the benefit it is too late to disclaim it.15 The assent may be by elapse of time, conduct16 and an agent may assent to the benefit.17 There must be an

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act showing dissent18 and the disclaimer must be communicated to the donor or those passing or creating the benefit.19 A disclaimer is generally regarded as irrevocable once made.20 It cannot be made in respect of part of the benefit, if the benefit is indivisible.21 However, if there are two or more independent benefits, a disclaimer only operates with respect to the specific benefit disclaimed,.22 The disclaimer should be simple and unqualified.23 The effect of the disclaimer cannot be the subject of a direction by the person disclaiming. The disclaimer simply operates to avoid the benefit, the benefit then accrues to the other persons that are entitled at law to share in the benefit, apart from the person disclaiming.24 Any attempt to effect where the disclaimed benefit is to go may be regarded as an acceptance and a disposition of the benefit.25 There may be some differences in treatment between disclaiming the rights as a beneficiary of a trust, disclaiming a particular appointment of income or capital of the trust and the rights of a beneficiary as a taker in default.26 In most respects the rules applicable to a disclaimer of a position or a power are similar to those applicable to a disclaimer of property, notwithstanding a position or power is not property.27 However, two recent decisions28 and a legislative change in the stamp duty context have limited the effectiveness of disclaimers from a tax perspective in the situations described in the following paragraphs.

DISCLAIMERS AND SOME TAXES Income Tax In FCT v Carter29 the trustees of the Whitby Family Trust failed to appoint or accumulate the income of the trust for the 2014 income year and therefore the income was distributed to the default beneficiaries in accordance with default income provisions of the trust. Consequently, the income was held on trust for those beneficiaries.30 In October 2015 the Commissioner of Taxation

issued amended assessments to each of the default beneficiaries. In November 2015 they disclaimed31 their interest in the default distributions and in September 2016 they executed further disclaimers of their rights under the income default provision. The AAT held the 2016 disclaimers to be ineffective. The Full Federal Court held that the 2016 disclaimers were effective. The Commissioner contended that even if the disclaimers were effective, they did not retrospectively disapply section 97(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA36). That section provides, inter alia, for the inclusion in the taxable income of a presently entitled beneficiary not under a disability of their share of the income of the relevant trust estate. It was the view of the Full Federal Court that there was nothing in section 97(1) to indicate that a beneficiary’s liability was to be determined once and for all at the end of the income year by reference to the legal relationships then in existence. In the High Court the majority32 decided that the present entitlement of a beneficiary to income of a trust must be tested and examined at the end of the tax year, not some reasonable period of time after the end of the tax year. In doing so they stated that to do so was contrary to the text of section 97(1) and the object and purpose of Division 6 of ITAA36. Further the uncertainty created by any other approach would not only apply to the Commissioner but also the trustees and the beneficiaries and even possibly settlors.33 The majority also indicated that there was a distinction between legal and evidentiary presumptions and said as to the presumption of assent:34 The presumption of assent – that when there is a transfer of property to a person, the donee assents even before they know of the transfer – is a “strong presumption of law”. Recognising that a gift “requires the assent of both minds” and that the subject matter of a gift can vest in a donee before the donee actually assents, the law supplies that assent based “on fundamental attributes of human

TAX FILES

nature”. It “presumes a donee’s assent until disclaimer”. That presumption takes a basic fact – a transfer of property – and gives additional force to that basic fact by supplying the assent to the transfer of that property. It is not an evidentiary presumption in the sense of an inference drawn from basic facts. It is a presumption of law, and Div 6 – and, in particular, the criterion of “is presently entitled” in s 97(1) – is consistent with, and operates on, the presumption of law of assent. On the facts in this appeal, that presumption applied immediately before the end of the 2014 income year to the operation at law… In effect, the retrospective operation of a disclaimer has no effect in determining who is presently entitled to the income for income tax purposes, at least where the disclaimer is made after the end of the relevant tax year. However, the majority did note that the “[a]rgument proceeding as it did, this is not the case to examine whether any wider questions arise about distributions or disclaimers.”35 Further, in most cases involving capital gains and franked distributions passing through trusts, the return of the gain or a franked distribution is to be determined by reference to a specific entitlement36 rather than a present entitlement (as discussed in this case). Obviously in respect of such specific entitlement, like a present entitlement, it is usually determined in respect of a tax year at the end of a tax year.

Payroll Tax In Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd37 the Chief Commissioner had grouped certain companies under the Payroll Tax Act 2007 (NSW) (PTA(NSW)). The grouping provisions, in particular section 72, allowed the Chief Commissioner to group certain commonly controlled businesses and in effect to allow only a single payroll tax exempt threshold for the grouped entities. In addition, members of the group were jointly and severally liable for the payroll tax payable by a group member.38 Under section 72 one basis of grouping, occurs

where a person (or a set of persons) is a beneficiary in respect of more than 50% of the value of the interests in a trust that conducts a business.39 A further provision provided that where a person could benefit from a discretionary trust the person was taken for the purpose of the grouping provisions to control the business conducted by the trust.40 Smeaton Grange Holdings Pty Ltd (Smeaton) was trustee of a discretionary trust.41 One of the persons (Michael Gerace) who could benefit from the discretionary trust (an object) controlled another business owned by a company in liquidation that had a significant payroll tax liability arsing from a payroll tax audit. Consequently, the two businesses were grouped. In June, 2014 Michael Gerace executed disclaimers of his interest in the trust of which Smeaton was the trustee. Smeaton contended that the effect of the disclaimers were that they operated retrospectively and that consequently Michael Gerace was never an object of the discretion of the trust that Smeaton was the trustee. In effect the grouping nexus was broken and the disclaimer operated from the time the trust was constituted.42 At first instance this was held to be the case as it was said that revenue statutes were to be construed having regard to the principles of the general law and therefore there was no reason why the retrospective effect of a disclaimer should not apply.43 On appeal the Court of Appeal held44 that the construction of the language of section 72 strongly implies that the existence and composition of a group must be determined according to the circumstances as they existed during the relevant tax period or periods.45 Further, the PTA (NSW) only allowed for one situation where a group liability could be retrospectively altered, namely on the Chief Commissioner determining to exclude a member of the group from the group pursuant to section 79.46 Subject to that exception, “the legislative scheme can only be given effect if the existence and

composition of any group of which the employer forms part can be determined at the same time as the employer becomes liable to pay payroll tax to the Chief Commissioner.”47 Whilst it is recognised that as between Smeaton and Michael Gerace the disclaimer may have altered their respective rights, 48 “…the consequence is not that Smeaton’s liability to pay payroll tax is retrospectively expunged. On the proper construction of the legislation, Smeaton became liable by force of statute at the expiration of a specified time after the end of each financial year (if not earlier). Smeaton’s liability under the legislation was to be determined once and for all by reference to the legal relationships then in existence (subject to s 79). A subsequent alteration of those relationships by the unilateral act of a discretionary object cannot change the operation of the legislation.”49

Stamp Duty In Probert50 the appellant appealed against an assessment of stamp duty imposed on a disclaimer of an interest in a deceased estate of her brother that was still in the course of administration. The appellant was successful on the basis that the estate was in the course of administration51 and that the disclaimer operated by way of avoidance rather than disposition or vesting.52 The effect of Probert has been overturned by section 71AA of the Stamp Duties Act 1923 (SA). Section 71AA provides that an instrument whereby a person disclaims an interest in an estate of a deceased person which the person is or may be entitled to share in is taken to be a conveyance of property operating as a voluntary disposition inter vivos. There is no definition as to what may constitute the disclaiming of an interest. In addition, for the purpose of calculating ad valorem duty payable on an instrument to which the section applies, the value of the interest subject to the conveyance is to be determined as if the estate had been distributed and the interest were an interest in possession. August 2022 THE BULLETIN

TAX FILES

In Circular No 209 Stamp Duties (Land Rich Entities and Redemption) Amendment Act 2000 the Commissioner said that the purpose of the amendment was to ensure the status quo was maintained, that is the Commissioner may assess “Deeds of Disclaimer and Arrangement” with duty and thereby protect the revenue base. There is little further guidance provided by the Commissioner as to the application of the section. Section 71AA applies not only to disclaimers but also to assignments of interests in deceased estates still in the course of administration. In practice, because of the width of section 71AA in particular, care needs to be taken in drawing deeds of family arrangement because, in disallowing an objection, the Treasurer has taken the view that where A and B are entitled to share in an estate and under a deed of family arrangement A takes one property and B takes another property there is either a disclaimer or an assignment of their interests. How such an arrangement may constitute a disclaimer is simply not clear, having regard to the requirements for a disclaimer to be an outright avoidance of an interest with no direction.

SUMMARY In summary, whilst a disclaimer may have a retrospective effective for most purposes, when it comes to some revenue laws, in particular those that impose a liability by reference to a state of facts at a point in time, commonly the end of a taxing period, a disclaimer executed after the end of the relevant taxing period may be ineffective to alter the existing revenue incidence. That may not be the case if the disclaimer is effected prior to the expiration of the taxing period. However, where the transaction that is taxed is the disposition, then unless the taxing provision expressly extends the concept of disposition to a disclaimer, the disclaimer will operate by way of avoidance rather than disposition.

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By Bernie Walrut, Murray Chambers. 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 LexisNexis Australian Legal Dictionary (2nd ed) 474. It may include property, income, an interest under a will in the course of administration or an interest on an intestacy and interest as an object of a discretionary trust. See In the Estate of Simmons dcd (1990) 56 SASR 1 (Simmons); Probert v Commissioner of State Taxation [1998] SASC 6896 (Probert); Ramsden v FCT [2005] FCAFC 39 (Ramsden). Some articles discussing disclaimers include: N Crago “Principles of Disclaimer of Gifts” (1999) 28 University Western Australia Law Review 65 (Crago); D Marks Disclaimer of Testamentary Gifts STEP Australia Conference 2019 Brisbane Queensland (Marks); Alan Krawitz, Disclaimer in the Context of Taxation of Trusts in Australia, (2006) 13 eLaw J 1. 2 A person who is appointed as a trustee does not assume that office until the person has accepted that appointment as trustee, see J Heydon and M Leeming Jacobs’ Law of Trusts in Australia (8th ed) [15-73]. 3 Section 57 Law of Property Act 1936 (SA). 4 [1946] HCA 32, (1946) 73 CLR 394, 401 (Cornell). 5 (1819) 3 B & Ald 31, 38; 106 ER 575, 577. 6 Cornell. 7 Re Stratton’s Disclaimer [1958] Ch 42 (Stratton); Standing v Bowring (1886) 31 Ch D 282 (Standing); Crago 70-76. 8 E.g. Section 57 Law of Property Act 1936 (SA). 9 Probert [29]-[30] and [37]-[39]. 10 Simmons 5. 11 Stratton; Standing; Crago, 70-76. There may be a difference between a situation where the benefit is yet to vest and those where it has vested, and where the interest is equitable rather than legal. 12 Tantau v McFarlane [2010] NSWSC 224 [107][114] (Tantau). 13 Confidential and Commissioner of Taxation [2008] AATA 927. 14 Marks [134]-[140]. 15 Re Hodge [1940] Ch 260 (Hodge); Crago 76-77; though it is suggested that may not apply to testamentary gifts, Lewis v Lohse [2003] QCA 199; Marks [153]-[169]. 16 Hodge; Lady Naas v Westminster Bank Limited [1940] AC 366; Crago 77. 17 Confidential and Commissioner of Taxation [2008] AATA 927; Marks [113]-[123]. 18 Hodge; Lady Naas v Westminster Bank Limited [1940] AC 366; Crago 77.

19 I.e. the executor, administrator or trustee. 20 Re Paradise Motor Co Ltd [1968] 2 All ER 625; Re Bisset (deceased) [2015] QSC 85, [2016] 1 Qd R 211. However, see Re Young [1913] 1 Ch 272 and Re Cranstoun [1949] Ch 523. Crago n 60 suggests those decisions do not support revocability, however see the discussion about this proposition in Tantau [108]. 21 An interest in a residuary estate can only be disclaimed in its entirety, Hawkins v Hawkins (1880) 13 Ch D 470; Crago 78-79. 22 Hodge; Crago 80. 23 Re Boyd [1966] NZLR 1109; Crago 78-79. 24 Rex v Skinner (1883) 22 Ch D 373; Marks [56]. 25 Ibid; Marks [56]-[57] and [104]. 26 Pearson v FCT (2005) 58 ATR 502; Ramsden; Marks [141]-[152]. 27 Ramsden; Cornell; Ex p. Gilchrist In Re Armstrong (1886) 17 QBD 521. 28 The two recent decisions described below are not reflected in the foregoing discussion. 29 [2022] HCA 10. 30 Commissioners of Inland Revenue v Ward (1969) 1 ATR 287. 31 There were two disclaimers for the respondents on different days. 32 Gaegler, Gordon, Steward and Gleeson JJ. Whilst Edelman J concurred with their reasoning as to the operation of section 97(1) he then provided his own reasoning on the assent issue and distinguished between common law and equitable rights. 33 [2022] HCA 10 [24]-[25]. 34 Ibid [30]. 35 Ibid [31]. 36 Subdivisions 115-C and 207-B of the Income Tax Assessment Act 1997 (Cth). 37 [2017] NSWCA 184. 38 Section 81 PTA (NSW). 39 Section 72(2)(g) PTA (NSW). 40 Section 72(6) PTA (NSW). 41 There was no definition of a discretionary trust in the PTA (NSW), see [2017] NSWCA 184 [110]-[113]. 42 [2017] NSWCA 184 [78]-[80]. 43 Ibid [82]. 44 The primary judgment was given by Sackville AJA with whom Gleeson and Leeming JJA agreed. Leeming JA also discusses a number of the general principles relating to the operation of disclaimers described earlier. 45 [2017] NSWCA 184 [138]. 46 Ibid [142]. 47 Ibid [143]. 48 [Ibid 145]. 49 Ibid [146]. 50 Probert v Commissioner of State Taxation [1998] SASC 6896 51 Ibid [18]-[30]. 52 Ibid [36]-[39].

WELLBEING & RESILIENCE

The grateful grumbles of a community lawyer GEORGINA PORTUS, COMMUNITY JUSTICE SERVICES SA

s lawyers, we are a cohort that work across significantly differing workplaces, each with individual demands and wellbeing considerations. Maintaining our wellbeing must address the stressors unique to the individual and our vastly different workplaces. The sole family law practitioner’s answer to work/life balance will not match that of a junior commercial lawyer at a large firm. My experience rests in community law, an area that certainly presents its unique pressure points and wellbeing challenges. As community lawyers, our KPIs are dictated by funding requirements that must be met for the service’s survival and our continued employment. Promises of further employment and our financial wellbeing depend on the promises of such funding. We do not have to prove our billable hours to the principal but rather the value of our service to the community. It can be challenging to distil a community service down to the raw statistics to prove that the value of our work translates directly to key indicators. There tends to be a high proportion of clients that present with mental health barriers, homelessness or housing instability, and substance abuse. Community lawyers, particularly those working in generalist practice, can quite quickly begin to blur the boundaries between lawyer, advocate, and support worker. The needs of the clients frequently demand this holistic approach. A funding gap in another support area can impact heavily on the work of a community lawyer. The nature of the clientele also presents a different kind of client/ lawyer relationship. In my experience, my colleagues tend to have higher levels of contact with clients. Mainly where mental health issues are prevalent and external supports are not always available, this can create some taxing relationships. As these boundaries blur, the community lawyer must be reminded that their services are limited by their expertise.

In my own experience, a community lawyer quickly becomes adept at wearing many different hats. Particularly in rural, remote, and regional areas where other services may be underfunded or sparse, the role can quickly expand beyond that of a ‘lawyer’. Not every hat fits my head perfectly or indeed suits me! It took some time before I realised I was the only one with the expectation that all hats fit. So, to mitigate the stress, one learns to work within a trusted ensemble of professionals and refer clients to seek assistance from a practitioner with a better-suited head for that hat. Consequently, community engagement is a constant requirement that works parallel to everyday practice and requires considered attention. Community lawyers work with local advocates, mental health services, counselling, and domestic violence services (to name only a few). Avoiding burnout and ensuring staff retention in all these allied areas takes on an additional level of importance where continuity in community relationships is a crucial service tool. High rates of burnout certainly create impediments to the maintenance of these relationships and, in turn, the ability to work for your community. The community services arena can feel transient, causing vulnerable clients

to become stuck in endless round robins of referrals in which no cycles are broken. Supporting the practitioner’s wellbeing is necessary for the community, client, and most importantly, us, the professionals. I say the above to offer a realistic viewpoint of wellbeing considerations within community law; however, my experiences working within this sector have been overwhelmingly positive. I am grateful to work within the community sector and promote ongoing conversations regarding wellbeing and resilience, which will serve us all. Any role requires an appreciation of your limits and the understanding that you are not capable nor expected to fix every possible problem. One assurance that can be made, no matter where you sit in the complex ecosystem of the legal community, is that bespoke help is available. So, a reminder must be given to reach out regularly to the available resources to figure out how best to manage the unique stressor in your world. LawCare Counselling is a counselling service available to legal practitioners, members of their immediate family and law students. For assistance, don’t hesitate to get in touch with the LawCare paging services number, which is (08) 8110 5279. August 2022 THE BULLETIN

RISK WATCH

Costs ramifications in testamentary claims: further erosion of the “Probate Costs Rule” KATE MARCUS, RISK & CLAIMS SOLICITOR, LAW CLAIMS

he recent Supreme Court decision of Kocini v Kambanaros (No. 2) [2022] SASC 50 serves as a timely reminder to practitioners practising in testamentary matters to take heed of the potential for costs ramifications. An earlier decision1 had considered whether the applicant, an adult daughter of the deceased, should be entitled to receive further provision from her mother’s estate. The testator had executed two Wills, one dealing with her assets in Greece and the other with her assets in South Australia. The applicant daughter was one of four surviving children of the testator and shared the assets located in Greece equally with her three siblings. The daughter had already received substantial monies from her mother. The provisions of the Australian Will left the deceased’s Australian assets entirely to one son, to the exclusion of the applicant. Judge Dart determined that the applicant had a financial position sufficient to support herself comfortably. It was further noted that the applicant had received a ¼ share of her father’s estate. His Honour indicated that it is not just an economic test which needs to be considered under the Inheritance (Family Provision) Act 1972 (SA). Testamentary freedom is an important consideration and held that ‘it is only appropriate to intervene where there has been a failure in relation to the moral duty and then, only to the extent necessary to rectify that failure.’ [at 32] In this he had regard to the comments of Ormiston J in Collicoat v McMillan (1999) 3 VR 803, “Those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support.” [at 47] On this basis the court was not satisfied

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that the testator failed to provide adequately for the applicant and the claim failed. The subsequent argument as to costs is reported as Kocinci v Kambanaros (No. 2). The starting point for any consideration of costs order is of course that they in the discretion of the Court or Judge (e.g. Section 40(1) of the Supreme Court Act 1935 (SA)). This needs to be read in conjunction with Rule 194.5 of the Uniform Civil Rules 2020 which provides inter alia that, as a general principle, costs follow the event. Rule 194.6 also identifies a number of discretionary factors to which the Court may have regard. There has been, however, a different position regarding costs in testamentary matters, the history of which was summarised by Kourakis CJ in Fielder v Burgess [2014] SASC 98. “There is a long line of authority to the effect that where probate litigation has been caused, or contributed to, by the way in which the testator made his testamentary intentions known it is appropriate that costs be ordered to be paid out of the estate (the probate costs rule)… [at 57]… However, the bottom line is that the disputes are between private parties advancing competing claims to the testator’s bounty for their private financial benefit. Of even greater contemporary significance is the effect of the old probate costs rule on parties to litigation of this kind. The probability of the payment of the costs of all parties out of the estate irrespective of the result gives the parties little incentive to make appropriate decisions as reasonable self-funded litigants about their prospects of success, and the proportionality of the expense incurred in bringing or defending proceedings. [at 62] I cannot see any utility in putting the beneficiaries to the expense of a contested hearing and depleting the estate in cases in

which the ultimate result of litigation is clear notwithstanding the suspicion or ambiguity clouding the Will.” [at 63] Further: “The probate costs rule is arguably anachronistic in modern times in which there is a greater concern with the need for proportionality in litigation. It may soon be necessary to reconsider it.” [at 65] The probate costs rule has also been applied in IFP matters and runs counter to the usual “loser pays” rule we are familiar with from other areas of litigation. In Kocini v Kambanaros (No. 2) Judge Dart addressed the conflict as follows: “The Court should not adopt an approach to costs that creates a barrier to the commencement and prosecution of legitimate claims.” [at 11] and yet “…the Court must also have regard to the fact that a party who brings an unsuccessful claim has put a respondent to significant legal expense. It is generally undesirable in such circumstances that an applicant can walk away without meeting any of the costs of the respondent.” [at 12] Ultimately, his Honour determined that the justice of the case required that the unsuccessful applicant pay $50,000.00 towards the costs of the respondent; the applicant was financially stable and not impoverished. She had pursued the matter for her own private benefit. Judge Dart’s decision is the latest in a series of cases over the last few years (including Fielder v Burgess) where the courts have noted that the probate costs rule is not to be applied in every case and that, in appropriate cases, different orders can be crafted to meet the justice of different cases.

RISK WATCH

These cases include the following: In Hall v Carney & Ors (No 2) [2012] SASCFC 105 by a majority of 2-1 Vanstone J and Stanley J held that notwithstanding the appellant’s success concerning rebutting the presumption of due execution, the appeal was destined to fail. The appellant had no realistic prospect of overturning the trial Judge’s findings. As the evidence clearly established knowledge, approval and testamentary capacity – costs should not be awarded in favour of the unsuccessful party: the estate should not be further eroded by the appellant’s costs. • Frances Ponikvar (Deceased) (No. 2) [2016] SASC 166 (Stanley J) concerned costs in relation to an unsuccessful claim which had been brought by a niece against her late uncle’s estate. The deceased uncle had made two Wills, one in 1993 and a second in 2007. Despite searches of the deceased’s home the original Will from 2007 could not be located and a copy was admitted to probate. The 2007 Will prejudiced the interests of the niece and she opposed the grant of probate that was sought of the 2007 copy of the Will. The niece was unsuccessful at trial. Stanley J held that the niece should bear her own costs. He further found that the trial was longer than it would have been but for the niece’s opposition of the application. Consequently, Stanley J held it was just and reasonable that she be ordered to pay the additional costs that were incurred as a result of her opposition of the orders sought. The niece was ordered to pay 25% of the applicant’s costs of the trial on a party/party basis. • Stanley J’s decision in Public Trustee v Taylor & Ors (No 2) [2020] SASC 213 also saw costs being paid by the •

•

unsuccessful litigants. Mr and Mrs Todt died commorientes- evidence could not establish whether either of Mr or Mrs Todt had pre-deceased the other. As a result, there was no proof of survivorship. The first respondent was the sole beneficiary under Mr Todt’s last Will and the second respondent was the sole beneficiary under Mrs Todt’s last Will as well as being her next of kin. The third and fourth respondents were the next of kin of Mr Todt. They took a 50% share of the joint estate of Mr and Mrs Todt on the intestacy arising from the commorientes. The second respondent took the other 50% of the joint estate on the intestacy as the next of kin of Mrs Todt. Of the first respondent, Stanley J noted the self-interested nature of the part he played in the proceedings. The first respondent was acting in an adversarial manner and Stanley J found he was not entitled to have his costs met from the joint assets. It was held that the first and second respondents were jointly liable for the costs of the third and fourth respondents. In the Estate of Amuso (No 2) [2021] SASC 61 is another decision of Stanley J which involved an applicant who was held to have acted in wilful disregard of the facts. He had sought to pursue his own financial benefit at the expense of the other beneficiaries. The document upon which he sought to rely was not the deceased’s last Will and Testament. The conduct of the testator had not resulted in the trial rather it was caused by the applicant. Stanley J ordered the unsuccessful applicant to pay the costs of the other parties on an indemnity basis. The decision of Stanley J In the Estate of Colin William Brown (Deceased) (No 2) [2021] SASC 129 is a further example

of costs following the event. The applicant nephew of the deceased brought proceedings seeking the admission to probate of a “lost” Will made by the deceased or alternatively an informal Will. The nephew was unsuccessful and the court dismissed his application. The nephew contended that the need for the proceedings was caused by the deceased due to misrepresentations that the deceased had made during his lifetime. The nephew sought his costs of the proceedings to be paid from the estate on a solicitor/client basis. Stanley J held that costs should follow the event and the unsuccessful applicant was ordered to pay the respondent’s costs. Kocini v Kambanaros (No. 2) [2022] SASC 50 is therefore a reminder that it must not be automatically assumed that the probate costs rule will come to the rescue of an unsuccessful litigant in a testamentary cause. It may do if the cause and conduct of the litigant was reasonable (albeit ultimately unsuccessful), however, it might not, especially in unmeritorious IFP claims where the applicant is unable to establish “need”. All practitioners need to be aware of this and to be robust in their advice to potential claimants in testamentary matters about the potential for costs to follow the event. Practitioners should give careful consideration of the merits of claims when bringing IFP claims. Unmeritorious claims potentially resulting in unnecessary diminution of an estate may not succeed in having costs paid for by the estate. In fact, practitioners should reflect carefully on costs consequences before embarking on IFP claims, as they would in any litigious matter.

Endnotes 1 Kocini v Kambanaros [2022] SASC 25

August 2022 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK

CHILDREN – CONTRAVENTION – MOTHER’S “TIT-FOR-TAT” WITHHOLDING OF CHILD TO MAKE-UP FOR FATHER’S EARLIER NONCOMPLIANCE IS NOT A “REASONABLE EXCUSE”

n Bircher [2022] FedCFamC1A 59 (11 May, 2022) the Full Court (Aldridge, Bennett & Howard JJ) considered a decision where the mother had contravened parenting orders in relation to a 13 year old child “C”. The mother argued that the father had withheld the child during her holiday time, such that she was entitled to make up time. The Full Court said (from [25]): “Whether the father’s retention of C for the first week of the … school holidays was appropriate is attended with some doubt ( … ) [26] … In Childers and Leslie [2008] FamCAFC 5, Warnick J confirmed that the circumstances described in s 70NAE(1) of the Act are not the only circumstances in which reasonable excuse may be found. However, even if the father contravened … that lack of compliance … does not entitle the mother … to over-hold C … It is not for one party to take these matters into their own hands and engage in selfhelp. [27] It is conceivable that a reasonable excuse may involve a reasonable belief … concerning the effect of the other party’s failure to comply … However … we are not persuaded that it was open to the mother to over-hold C and then claim that time as compensation for a previous wrongdoing … To accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and

38 THE BULLETIN August 2022

security of children. … [T]he father’s actions deprived C of the company of her brothers and spending the first week of school holidays in the mother’s household … [T]he consequence of the mother’s action was to replicate that situation in relation to the first week of the holiday period to which the father was entitled … Superficially, it was a tit-for-tat exercise as between the parents. In substance … the disruption and deprivation was doubled for C … On a more general level, self-help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts …” The appeal was dismissed.

CHILDREN – UNILATERAL RELOCATION ALLOWED WHERE CHILD’S CONNECTION WITH HER ABORIGINAL CULTURE BEST MAINTAINED BY LIVING WITH MOTHER In Pascoe & Larsen [2022] FedCFamC1A 64 (13 May, 2022) McClelland DCJ heard a father’s appeal from an interim decision dismissing an application for the return of the mother and child after the mother unilaterally relocated from City A to City B. The mother and child were Aboriginal and the trial judge concluded that the connection to the child’s culture was best maintained by the child living with the mother ([15]). McClelland DCJ said (at [30]-[31]): “ … [H]is Honour states that it is important for the child to live with her mother ‘in order to maintain and promote her connection with her Aboriginal culture’ … His Honour’s consideration of that issue was entirely consistent with his

obligation pursuant to s 60CC(3)(h) of the Act. [His Honour] … also took into consideration the [mother’s] evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter …” McClelland DCJ continued (from [57]): “… [I]t was entirely proper and, indeed, consistent with his Honour’s obligation … to have regard to the child’s right to enjoy her Aboriginal culture ‘with other people who share that culture.’ It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. … (…) [64] … [W]hat his Honour [found] was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the [mother] … [65] Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned … in circumstances where it would detrimentally impact upon the [mother] in terms of her employment and her new relationship. Having regard to those matters … his Honour rejected the [father’s] submission that orders should be made that resulted in that detrimental impact upon the [mother].” The appeal was dismissed and orders made for submissions as to costs.

PROPERTY – HUSBAND’S RIGHTS UNDER FOUR DISCRETIONARY TRUSTS “PROPERTY” – RIGHT

FAMILY LAW CASE NOTES

TO DUE CONSIDERATION AND DUE ADMINISTRATION CAPABLE OF VALUATION In Woodcock (No 2) [2022] FedCFamC1F 173 (30 March, 2022) Wilson J heard a wife’s application for determination of a preliminary issue: whether the husband’s interests in a collection of discretionary trusts was “property” and capable of valuation. The husband argued that his interests under the trusts amounted to no more than rights with respect to due administration and consideration of the relevant trusts and such rights were incapable of valuation ([2]). Wilson J said (from [73]): “ … [It] seems to me that according to existing statements of principle of the High Court, the equitable choses in action of due consideration and due administration under a discretionary trust … are in fact and in law ‘property’ within the meaning of s 4 and s 79 of the Act. I say that for several reasons. In each of the four trusts, the husband retained power permissibly exercised over a certain thing … He held what certain of the authorities describe as a ‘bundle of rights’. The husband enjoys a position of considerable influence … and historically the husband has received distributions of approximately $15 million. He also has the ability to block. To my way of thinking the husband enjoys a legally endorsed concentration of power over things or resources … “ (…) [112] … [I]n my view, not only should the debate in this litigation about whether the husband’s rights are property be fully ventilated at trial but the value of those rights should also be fully ventilated

at trial. I am not willing to hold at this interlocutory juncture in this litigation that [the husband’s expert valuer] … is necessarily correct when he asserts that the husband’s rights cannot be valued … [I] n my view, the husband’s contention that no arguable case can be advanced about the ability to value the husband’s equitable choses in action have not been made out, at least not on this application. The case, and that issue in particular, must go to trial.” His Honour determined that the husband’s interests under the trusts were property as defined in s 4(1) of the Act and were capable of valuation.

PROPERTY – JURISDICTION OF FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) TO HEAR CASES COMMENCED IN THE FAMILY COURT OF AUSTRALIA PRIOR TO 1 SEPTEMBER 2021 – INTENTION OF PARLIAMENT READILY INFERRED FROM REFORM LEGISLATION AS A WHOLE In Nevins & Urwin [2022] FedCFamC1A 57 (6 May, 2022) the Full Court (Alstergren CJ, McClelland DCJ, Austin, Bennett & Cleary JJ) considered whether the Federal Circuit and Family Court of Australia (Division 1) had original jurisdiction to hear and determine proceedings that were pending in the Family Court of Australia (“FCoA”) before 1 September, 2021 (“a legacy case”). After considering the transition provisions, the Full Court said (from [32]): “ … Parliament’s intention that Division 1 would retain original

jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole, in the manner urged by the High Court. (…) [38] … [T]he Explanatory Memorandum published to explain the Transition Bill stated this in the General Outline: 5. For the avoidance of doubt, any first-instance proceedings on foot in the Family Court ... as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) ... This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) ... under the FCFC Bill. [39] It is well accepted that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakeable … No such clear and unmistakeable implication is evident here. ( … ) [40] The primary judge observed … that, unlike the express transition provisions for appeals pending before the FCoA, the reform legislation contains no counterpart express transition provision for pending proceedings within the original jurisdiction of the FCoA. That may be so, but it is no proper basis for imputing an illogical intention to oust the original jurisdiction of Division 1 in legacy cases. The transition provisions especially for appeals were desirable, if not essential, because of the abolition of the Appeal Division of the FCoA.” The Full Court concluded that Division 1 of the Federal Circuit and Family Court had original jurisdiction to hear and determine legacy cases. B August 2022 THE BULLETIN

BOOKSHELF

CRIMINAL LAW ELEMENTS Abstract from LexisNexis

P Crofts 7th ed LexisNexis 2021 PB $69.00

Criminal Law Elements is a succinct introduction to the essential elements of criminal law in common law states. It provides a clear, accessible and current discussion of criminal offences in New South Wales, South Australia and Victoria. The author details and explains the basic elements of criminal law and provides examples of solutions to problem

questions. This book is a valuable resource for students and anyone wishing to understand the common law criminal law system, as well as a concise reference for practitioners. The seventh edition has been fully revised and updated with new leading cases from principal appellate courts in Australia and new legislative provisions that have effected significant changes to the criminal law.

DISCRETION IN CRIMINAL JUSTICE Abstract from LexisNexis

N Cowdery LexisNexis 2022 PB $160.00

Discretion in Criminal Justice explores the stages of the criminal justice process at which discretion is exercised, discusses the limitations on that exercise and identifies available options for review. The text discusses how and why discretion is applied at each stage (investigation, prosecution, defence, adjudication, sentencing and corrections) and also includes chapters that comprehensively survey the

exercise of discretion in regard to bail, juries and appeals. Drawing on the author’s extensive and longstanding involvement in criminal justice, including as Director of Public Prosecutions for New South Wales for over 16 years, the text provides an essential practical guide to both students and practitioners as to the principles to be applied and sources of information to assist in decision-making. It will also inform members of the public who may wish to know why and how such decisions are made.

LUNTZ & HAMBLY’S TORTS: CASES, LEGISLATION AND COMMENTARY Abstract from LexisNexis

9th ed LexisNexis 2021 PB $175.00

40 THE BULLETIN August 2022

Luntz & Hambly’s Torts: Cases, Legislation and Commentary delivers a critical and analytical approach to the law of torts presented through extensive commentary and selected materials from cases, legislation and academic writings. Detailed notes explain the significance of the key cases while questions stimulate critical thinking and learning.

Recent developments covered in this edition include discussion on: new legislation on the liability of organisations for child abuse; Aged Care Royal Commission recommendations on compensation for injuries in Aged Care; race and injury compensation; new NSW CTP scheme reforms; winding back of expansion of vicarious liability in the United Kingdom.

GAZING IN THE GAZETTE

3 JUNE 2022 – 2 JULY 2022 ACTS PROCLAIMED Termination of Pregnancy Act 2021 (No 7 of 2021) Commencement: 7 July 2022 Gazetted: 23 June 2022, Gazette No. 41 of 2022 National Gas (South Australia) (Market Transparency) Amendment Act 2022 (No 3 of 2022) Commencement: 23 June 2022 Gazetted: 23 June 2022, Gazette No. 41 of 2022

ACTS ASSENTED TO Supply Act 2022, No. 2 of 2022 Gazetted: 23 June 2022, Gazette No. 41 of 2022 National Gas (South Australia) (Market Transparency) Amendment Act 2022, No. 3 of 2022 Gazetted: 23 June 2022, Gazette No. 41 of 2022

APPOINTMENTS Auxiliary Judge of the Supreme Court of South Australia for a period commencing on 1 July 2022 and expiring on 30 June 2023 David Harvey Peek Gregory John Parker Rauf Soulio Geraldine Davison Graham Walter Dart Katrina Jane Bochner Sydney William Tilmouth Brian Patrick Gilchrist Auxiliary Master of the Supreme Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 Briony Kennewell

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

Auxiliary Master of the Supreme Court and Auxiliary Master of the District Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 Peter John Norman John Stephen Roder Christina Rose Flourentzou Auxiliary Judge of the District Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 Gordon Fraser Barrett Auxiliary Judge of the District Court and Environment Resources and Development Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 John Francis Costello Auxiliary Judge of the District Court and Deputy President of the South Australian Employment Tribunal for a period commencing on 1 July 2022 and expiring on 30 June 2023 Peter Dennis Hannon Dean Ernest Clayton Auxiliary Master of the District Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 Mark Nicholas Rice

for a period commencing on 1 July 2022 and expiring on 30 June 2023 Jodie Marieka Carrel Auxiliary Magistrate of South Australia and Youth Court of South Australia for a period commencing on 1 July 2022 and expiring on 30 June 2023 Derek Yorke Nevill Sprod Yoong Fee Chin Alfio Anthony Grasso Phillip Edward James Broderick Theodore Iuliano Clive William Kitchin Elizabeth Ann Sheppard Terence Frederick Forrest Barbara Ellen Johns Gazetted: 10 June 2022, Gazette No. 37 of 2022 Auxiliary Judges of the Court of Appeal Division of the Supreme Court of South Australia for terms commencing on 1 July 2022 and expiring on 30 June 2023 The Honourable Justice Michael John Buss The Honourable Justice Robert Anthony Mazza Gazetted: 10 June 2022, Gazette No. 37 of 2022

Auxiliary Magistrate of South Australia and Youth Court of South Australia and Auxiliary Master of the District Court for a period commencing on 1 July 2022 and expiring on 30 June 2023 John Gerard Fahey

President South Australian Civil and Administrative Tribunal from 4 July 2022. Judith Hughes, a Judge of the Supreme Court Gazetted: 30 June 2022, Gazette No. 43 of 2022

Auxiliary Magistrate and Auxiliary Deputy President of the South Australian Employment Tribunal

RULES Nil August 2022 THE BULLETIN

GAZING IN THE GAZETTE

REGULATIONS PROMULGATED (3 JUNE 2022 – 2 JULY 2022) REGULATION NAME

REG NO.

DATE GAZETTED

Private Parking Areas (Expiation Fees) Amendment Regulations 2022

26 of 2022