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

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 11 – DECEMBER 2020

WHAT HAS THE LEGAL PROFESSION LEARNT FROM THIS DIFFICULT YEAR? PLUS:

Tim White reflects on a presidential year like no other Get to know incoming Law Society President Rebecca Sandford Strategies to address workplace sexual harassment

How can we help? Search the knowledge base, join discussions and propose new ideas.

We ensure our clients can access the support they need. Our help centre provides a range of knowledge base articles, community discussions and the opportunity to give feedback and share ideas. Take advantage of a wealth of support options with LiveChat, live Q&A sessions and on-demand, online training courses.

leap.com.au/client-support

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (10) LSB(SA). ISSN 1038-6777

CONTENTS FEATURES & NEWS

FEATURES & NEWS

REGULAR COLUMNS

6 Lessons from lockdown: what the legal profession has learned from COVID-19 By Michael Esposito

22 Has the introduction of adult adoption in South Australia been a success? By Eva Bailey

From the Editor

President's Message

Risk Watch: Calculating time limits — you need to know where to start By Grant Feary

Tax Files: Storage land an active asset By Briony Hutchens

Family Law Case Notes By Keleigh Robinson

Q&A: President-Elect Rebecca Sandford

Bullying, sexual harassment and discrimination in the legal profession: What is the Society doing about it? By Amy Nikolovski

A tale of two systems – Chapter 11 and the insolvency reforms By Seamus Brand & Travis Shueard

Development program helps redress gender imbalance at the Bar

ASIC v Mitchell serves up guidance on directors’ duties By Allie Umoff

Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members N Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman

The legality of forced sterilisation of women and girls with disabilities By Sarah McInnes

Down with Mr Darcy: Hughes v Hill By Rebecca Scarabotti

36 How efficient and just is the process for contempt for disobedience of a judgment? By Lauren Fletcher 38

Reframing ASIC’s effectiveness By Daniel Calderisi

42 Law Society Gold Alliance Firm Program 41

44 Wellbeing & Resilience: Thank you 2020…? By Zoe Lewis

46 Legal service dedicated to assisting people who are homeless or at risk of 45 homelessness

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

Members on the Move

Gazing in the Gazette

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

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

PRESIDENT’S MESSAGE

2020: A MEMORABLE YEAR FOR UNIQUE & CHALLENGING REASONS TIM WHITE, PRESIDENT

t is hard to believe that the we are already in December, and that a year we will never forget is almost at an end. What a roller coaster of emotions it has been for all of us. Whilst we have thus far been fortunate in SA with the number of COVID-19 cases we have had, it has still been an incredibly challenging year. I write this last article with some sadness, as there remains only about three more weeks of my year as Law Society President. It has been far from the year I was expecting, but despite that, I have still thoroughly enjoyed the experience and the honour of representing the profession. Many of the outcomes I hoped to achieve this year needed to be shelved, overtaken by the daily demands caused by the pandemic. The Law Society staff have been remarkable this year and have worked incredibly hard for the benefit of our members. Thank you all very much for your commitment and efforts. Like all of us, they have had to be extremely flexible with the roles they fulfil week to week, transitioning between working from the office and at home, responding to increased inquiries from Members, as well as altering how they deliver services to the members. With the introduction of numerous bills and regulations into Parliament this year, it has been very busy with regards to making submissions. Compared with last year, this year has seen a 30% increase in the number of bills and regulations introduced into the parliament. The Society has been asked to comment on many of these. Added to the increased number of submissions has been the tight

4 THE BULLETIN December 2020

timeframes within which comment has been required, especially the pandemicrelated ones. No doubt, the Chairs and members of the committees are fatigued having received a high number of requests this year for comments on matters relevant to their committee. Thank you for your efforts and considerable input this year. It has greatly assisted us with the quality of submissions we have been able to make. Contributions from committees are essential to the Society’s advocacy, but I hope the load in 2021 will be reduced! Since March this year, the Law Society has been in frequent contact with the courts and tribunals to work through the implications of restrictions imposed by COVID-19. All jurisdictions have done incredibly well to continue operating in a modified form, thereby enabling ongoing access to justice. Given what I have learned from speaking with presidents of law societies in other countries, we have been very fortunate to have had such access to the courts. The Society’s working relationships with the Attorney General, the Legal Profession Conduct Commissioner and the President of the SA Bar Association have been highly productive this year. They have all been of great assistance to the Society, and more broadly the profession, and have all made themselves readily available which is greatly appreciated. Media comment, in all forms, remains a regular part of what the President and the Society is asked to undertake. For the most part, our comments this year have been reported fairly and in the full context in which they were provided. Both for the

benefit of the profession and the public, we should continue to voice our views through this avenue.

"Adversity often brings out the best in people, and that is what I have primarily seen this year. Lawyers are very stoic and resourceful, so keep up the great work for your clients and the community." Our regular article in the Advertiser was stopped for several months during 2020, as the paper chose to focus on COVID-19 related coverage. However, in recent months, we have been able to get back to publishing fortnightly articles. These articles provide a useful avenue through which we can connect and communicate to the public on a broad range of topics and build greater trust and respect. Socially, it has been an isolating year for many of us. Despite having a few in person events at the commencement of the year, since late March there has unfortunately been virtually no Law Society social events. Zoom interaction has been the default. The lack of personal interaction with Council, the Executive and all members of the profession has been the major disappointment for me as President. However, in comparison with the obvious current health and economic challenges we all face, this is a minor issue.

PRESIDENT’S MESSAGE

I was really looking forward to hosting the Legal Profession Dinner in late November, which was due to be held during our recent lockdown and was therefore cancelled. We had more than 250 people confirmed for the dinner, providing what would have been a wonderful opportunity to see many familiar faces and celebrate what has been achieved by the profession this year. The Law Society still hopes to be able to hold a number of functions in December, so please keep an eye out for them.

It has been a rewarding year for me and one I will remember for a very long time. Adversity often brings out the best in people, and that is what I have primarily seen this year. Lawyers are very stoic and resourceful, so keep up the great work for your clients and the community! Thank you for the opportunity to be your Law Society President in 2020. It has truly been a wonderful experience. I wish Rebecca Sandford, your President next year, all the very best and I have no doubt she will be outstanding in the role.. B

IN THIS ISSUE

NT barrister returns to SA as a District Court judge INSOLVENCY REFORMS

iles Crawley SC is SA’s latest judicial appointment. Mr Crawley has been appointed a District Court Judge and will serve as Deputy President of the South Australian Employment Tribunal. Mt Crawley replaces retiring Judge Leonie Farrell, and will begin his new role on 7 December. Mr Crawley practised as a barrister in SA from 1979 to 2009, but spent the last 10 years practising in Northern Territory, joining the independent NT bar in 2012. Mr Crawley was Chair of the Law Society of SA’s Costs Committee from 1997 to 2009, a Member of SA’s Joint Rules Advisory Committee from 20089, and has been President of the NT Bar Association and a Director of the Australian Bar Association since 2017. He has also been Chair of the Australian and New Zealand Association of Psychiatry, Psychology and Law (NT Branch) since 2015. Mr Crawley was appointed as Senior Counsel of the Supreme Court of the Northern Territory in 2017. In SA, Mr Crawley practised as a barrister and solicitor, conducting more than 200 matters to judgment in jurisdictions including the Magistrates Court, District Court, Supreme Court, Full Supreme Court, Workers Compensation Tribunal, Federal Court, Industrial Relations Court and Commission, Administrative

Introducing 'Chapter 11' insolvency laws in Australia

ASIC V MITCHELL High court provides guidance on directors' duties Miles Crawley SC

Appeals Tribunal, and the Coroners Court. When Mr Crawley joined the independent bar in NT in 2012, he had practised from William Forster Chambers, appearing regularly in the Supreme Court, Court of Appeal, Federal Court, Federal Circuit Court, Local Court, Coroners Court, Administrative Appeals Tribunal, Northern Territory Civil and Administrative Tribunal, Fair Work Australia and Work Health Court. The Law Society congratulates Mr Crawley on his appointment.

HUGHES V HILL Court rejects 'Mr Darcy' defence in sexual harassment case December 2020 THE BULLETIN

FEATURE

LESSONS FROM LOCKDOWN: WHAT THE LEGAL PROFESSION HAS LEARNED FROM COVID-19 BY MICHAEL ESPOSITO, EDITOR

n Wednesday 18 November, Premier Steven Marshall dropped the bombshell that South Australia would be going into a six-day lockdown that would be even more severe than Victoria’s. Supermarkets were inundated with panic buyers, restaurants had to dispose of thousands of dollars’ worth of produce, shops were forced to shut, parents were again made to work with kids underfoot, aged care visits were severely restricted, and weddings and other special events were cancelled. But most South Australians seemed to accept that, in order to contain this problematic cluster, we had to hole ourselves up for just under a week, knock the outbreak on its head and then we could go back to (relative) freedom again. The legal profession was also significantly disrupted. Courts adjourned all but urgent matters. Lawyers were unable to access clients in prison. Property transactions were limited. The formalisation of important legal documents (some potentially prepared in urgent haste) was put on hold, and law practices were required, once again, to rapidly transfer to a working from home arrangement.

6 THE BULLETIN December 2020

Hopefully the experience of the first wave made the second transition to the home office much smoother, but there’s no doubt a familiar feeling of anxiety would have descended on a number of practitioners worried about how this new outbreak would impact their livelihoods. For those who rely on court work, the news was a particularly nasty blow. And then, two days into the pandemic, Police Commissioner Grant Stevens announced a fast-tracked easing of restrictions. Someone who contracted COVID-19 within the cluster had lied to contract tracers about his movements and personal circumstances. His deception, according to the Premier, plunged the whole state into an unnecessary lockdown. By the Monday, workers could return to their offices (but were encouraged to work from home if they could). Courts reopened and re-listed previously adjourned matters. Crisis averted. From the time the lockdown was announced at 12.30pm on the Wednesday, to when the easing of restrictions was announced less than 48 hours later, the Society had sent seven alerts to practitioners advising of operational changes affecting the legal profession due

to the lockdown. Of course, the sudden implementation of the changes resulted in some confusion among the community about what they could and couldn’t do. This is an inevitable consequence of a rapid response to an emergency. We saw directions declared on the Wednesday be amended within hours, clarifying that people were in fact able to leave their house for reasons such as visiting vulnerable loved ones, adhering to shared parenting arrangements and caring for pets in unattended homes. The list of workers regarded as essential expanded considerably in the space of hours, providing fascinating insight into which occupations were deemed so invaluable to society that they needed to be exempted from emergency declarations. No doubt to the chagrin of a number of practitioners, the delivery of legal services was not classified as essential, aside from some caveats which are discussed later in this article. A number of practitioners asked for guidance as to what situations would permit them to leave home to, for example, collect files from the office for an urgent matter.

FEATURE

These questions of essential duties are difficult to answer given each matter comes with its own individual circumstances and official directions can be open to interpretation, meaning practitioners often need to rely on their own discernment. The November lockdown crystallised a number of the issues that arose out of the initial quarantine period in the first half of 2020. Let’s look at some of the lessons that have been learnt during the pandemic, and what should be done to enhance our response to the next disruptive emergency.

KEEP CALM, ADAPT & CARRY ON This is much easier to say than do, given how disruptive and in some cases, devastating, COVID-19 has been for legal practices, but it is clear that it’s far more effective to stay cool in a crisis rather than go into panic mode. When the first wave of restrictions hit in April, there was a huge amount of uncertainty as to how lawyers would be able to continue to deliver legal services. From both a commercial perspective and access to justice perspective, the ramifications were huge. When the initial restrictions came in, there was no guidebook for how to deal with them. All facets of the justice system, particularly the courts and correctional services, were doing the best they could to quickly adapt to this strange new world. Some of these measures generated angst among parts of the profession, and unavoidably caused further delays in the justice system which could ill afford any more setbacks. However, courts did what they could to keep the wheels of justice turning, using technology where possible to facilitate remote hearings, and prioritising urgent matters during the period of reduced capacity. The experience highlighted some key lessons. In a time of emergency, the starting point must be to prioritise people’s health and safety. This means following official health advice and implementing measures accordingly. Also, when there are numerous stakeholders as there are in the justice system, it’s critical that all do their best to collaborate and support each other towards achieving the same goal, which should be to administer justice as efficiently and fairly as possible within a

framework that prioritises the protection of public health.

IS THE LAW AN ESSENTIAL SERVICE? Lawyers should take pride in the fact that they belong to a profession that fundamentally contributes to the protection of rights and liberties. They facilitate access to justice and assist the judiciary – one of the three arms of Government and therefore a cornerstone of democracy - to interpret and apply laws. It therefore may seem somewhat deflating to learn that at no point this year were lawyers deemed essential workers under SA’s emergency regulations. It was the shelf stackers, truck drivers, petrol station attendants, teachers, farmers, factory workers, and, it goes without saying, health care workers among those classified as essential. During the first wave, the Society wrote to the State Attorney General expressing the view that that the justice system is an essential service and the legal profession is critical to the continuing functions of the justice system throughout the COVID-19 pandemic. The Society noted that the demand for legal services would in a number of practice areas increase and become more urgent during the pandemic, for example in family, succession, employment, commercial, property, and criminal law. COVID-19 has added a layer of complexity to shared parenting arrangements, it has increased the vulnerability of people in unstable and abusive relationships, it has caused huge disruption to business, led to job losses and reductions, thrown contract terms into disarray, brought about disputes between tenants and landlords, delayed criminal hearings, and increased demand for services around wills and other succession documents. In a number of these instances, the justice system has found ways to accommodate clients in need of these services, with courts prioritising urgent matters (such as those involving at-risk children), and adjourning or diverting less critical matters, while many law practices were able to assist clients remotely. Government financial relief measures and dispute resolution directions also mitigated the need for urgent legal assistance in some instances.

In the most recent lockdown, initial advice from the authorities suggested that no practitioner could travel to their workplace under any circumstance, with that advice being added to hours later to clarify that a person could leave home to fulfill a legal requirement that involves attending a police station or "court or other premises for purposes relating to the justice or law enforcement system”. This left the question of when it might be permissible for a lawyer to leave their home somewhat open to interpretation – perhaps deliberately so – but the courts also provided guidance by listing the types of urgent matters they would hear during the lockdown, and allowed for unspecified urgent applications to be considered by the court on a case by case basis. Whether or not the Official Directions should be more prescriptive is open to debate, but it appears that, assuming legal services will not be considered essential in the event of another lockdown, legal practitioners should use their judgment to consider whether a matter is sufficiently urgent to warrant leaving home, and should look to the courts for guidance as to what matters the judiciary may deem essential.

TECHNOLOGICAL SOLUTIONS Back in July, the Chief Justice wrote in the Bulletin that the legal profession had a responsibility to the public to provide legal services, and, in the context of COVID-19 restrictions, were “bound to consider more than their personal preferences when deciding how to modify their practices”. His Honour went on to say that it was necessary to “manage risks within acceptable limits in order to discharge professional responsibilities.” An example of the courts weighing competing considerations of a legal professional’s duties and public health advice was the decision to continue to require in-person witnessing of client signatures but to temporarily allow the filing of unsworn affidavits until the document could be regularised. In April, Law Society President Tim White wrote to the Attorney General asking if the Government would introduce regulations to allow the audiovisual witnessing of affidavits and other documents, as had been introduced NSW, Victoria, Queensland and ACT. But the December 2020 THE BULLETIN

FEATURE

response was that no modifications would be made to the process of attesting and witnessing documents on the basis that it could still be done in a safe manner by observing social distancing, and ensuring these documents were signed in person was an important step in protecting the integrity of the documents. SA’s restrictions were not as tight as those in other States during the first wave, and the COVID-19 threat did not loom as large, which is presumably a major reason SA did not embrace electronic signing as other states did. However, under the heavier restrictions during SA’s recent three-day lockdown, witnessing documents would have been nigh on impossible. Luckily the lockdown only lasted two business days, but what if it lasted as long as Victoria’s? It’s clear there needs to be contingency plans to deal with the signing of legal documents where physical contact is inappropriate or forbidden. Complicating matters further is the contentiousness of electronic signing in any case. There’s certainly no consensus among legal practitioners about the extent to which we should accommodate remote signing of documents, particularly with regards to succession documents such as Wills, Advance Care Directives and Powers of Attorney. Succession Law Committee Member Kym Jackson opined in the COVID-19 edition of the Bulletin that “it would be difficult in my view, if not impossible, to properly satisfy oneself that the testator has testamentary capacity and is not at risk of undue influence or similar without meeting that person face-to-face.” Mr Jackson’s Pt Augusta based firm set up an outdoor meeting area with appropriately spaced seating so that faceto-face meetings could still take place. However, in circumstances where not even that is permissible, the preference for faceto-face meetings will need to be balanced against the importance of finalising legal documents in a timely manner. Where technology really came into its own was in conducting hearings.

8 THE BULLETIN December 2020

The staff at Work Visa Lawyers conduct their team meeting via Zoom

Applications such as WebEx or Microsoft teams were successfully used to conduct hearings, and their ability to improve efficiency has been such that they will be retained in State and Federal jurisdictions. Of course, not all matters can appropriately be held remotely, and nor does there seem to be an appetite for completely virtual courts. Most courtroom trials, particularly jury trials, at this stage cannot be adequately replaced by virtual trials. The diminution of audio and visual cues is one major drawback of current remote technologies, which is no real problem for several types of hearings but an insurmountable problem for others. The Society has also invested in advanced technology to increase its remote service delivery capabilities, particularly in the delivery of continuing professional development. For most of the year the Society has held CPD sessions by webinar only, and the profession seems to have responded very positively to the flexibility

that virtual seminars provide. Of course, the Society intends to offer in-person sessions when it is able to, as face-to-face contact plays an important role in fostering the collegiality of the profession, however it will continue to offer virtual CPDs for those who prefer to access these services remotely.

HAVE A PLAN It is doubtful that many businesses had a plan for “global pandemic” in their crisis control manuals at the start of the year, but it would seem likely that most would now have a strategy in place for dealing with public health emergencies of COVID-19 level proportions. Australia has avoided the scale of devastation and disruption that many other jurisdictions have endured, and it would be rather cavalier to assume that this is the worst it’s going to get. It could have been, and may be in the future, much worse. So, an emergency plan is essential.

FEATURE

Each business has its own individual needs and circumstances, but there are some helpful general resources to help businesses develop sound processes and protocols for situations akin to the COVID-19 pandemic. The Safe Work Australia website has some particularly helpful resources for businesses dealing with COVID-19. The Society has also prepared a COVID-19 Law Practice Management Information and Strategies Paper, which is available on the Society’s COVID-19 Resources Hub. A non-exhaustive list of items to include in a crisis management plan may include: • Processes for promptly assessing and following public health directions • Processes for ensuring workers are safe and Work Health and Safety laws are observed • Assessing and mitigating risks of employees working from home (including injury risks, living arrangements of employees, mental health impacts etc) • Identifying tasks that can be performed at home/off-site and those that cannot • Processes to manage the transport of required work equipment to a worker’s home (particularly if the equipment cannot be transported in one car trip). • Ensuring there are adequate mechanisms for connectivity and communication between staff, clients/ customers and other stakeholders • Processes for communicating with stakeholders (eg clients) about any changes in the business’s operations that may affect them • Ensuring availability of appropriate health and safety products (eg PPE, sanitiser) • Ensuring workers are appropriately trained in any new processes (eg use of safety equipment, social distancing, data security) • Processes to protect sensitive data • Processes to maintain continuity of business as much as it is practicable to do so

To make working from home arrangements easier to carry out, and for several other practical reasons, firms that have not already done so could consider developing an internal e-filing system that holds all documents digitally. This may involve scanning reams of paper, but once a firm is paperless, it also becomes portable. Electronically storing documents comes with its own set of security issues, so it is vital to have good digital security protection. The Society’s Cybersecurity Risk Management Package (available to those insured under the Society’s Professional Indemnity Insurance Scheme) is a comprehensive resource to assist practitioners in keeping electronic material protected.

WORK-LIFE BALANCE? For many parents, juggling work and family responsibilities was perhaps the greatest challenge they faced during the pandemic. A great deal of effort will need to go into developing policies to support workers with school or childcare aged children in public health emergencies. In the recent lockdown, some childcare centres accepted children of non-essential workers if those workers were able to provide a written statement from their employer that they were required workers, which appears a sensible approach. Culturally, the pandemic has seemed to create a greater understanding and awareness of the pressures that work and family life place on each other, and hopefully this experience will create more accommodating and flexible workplaces in the long-term. A number of practitioners reported on the difficulties of distinguishing work time from down time, as having one’s worksite in the same place as their private abode made it difficult to “switch off ”. The Society has published an article entitled “An importance message about Wellbeing & Resilience – COVID-19” which provides some helpful tips about managing wellbeing in challenging times.

GET SUPPORT Anyone impacted by COVID-19 should not hesitate to reach out for support, whether that be professional or personal. From a business perspective, the Federal and State Governments have established several financial relief packages. These can be complex and time-consuming to apply for, but there are resources to help businesses navigate the application processes. For example, Business SA has a Business Advice Hotline where members of Business SA can speak to workplace advisors for free. Law Society Members can also visit the Society’s COVID-19 Resources Hub for a summary of the financial relief measures currently available. Practitioners who have any questions or concerns about their practice, such as ethical obligations or concerns about their capacity to deliver services during the pandemic, can contact the Law Society for support. The Society also provides a range of support services, including confidential counselling with Dr Jill, a Professional Advice Service, Young Lawyers Support Group, and Lawyers Complaint Companion Service. Practitioners can visit the LawCare and Support section of the Society’s website to find out how to access these support services. The Society also maintains a list of wellbeing and resilience resources and support services on its website. Search for “Wellbeing & Support Resources” from the Society’s home page.

CONCLUSION As the year comes to an end and we keep our fingers crossed that we see our loved ones (in Australia) for Christmas, let’s hope the new year brings better fortunes, and that, as a profession, we look out for each other and never be afraid to ask for support. B December 2020 THE BULLETIN

PROFILE

Get to know your next President

ebecca Sandford will assume the role of President of the Law Society on 1 January. In this Q&A, she talks about what has led her to this point, what she’s passionate about, and how the law can respond to the numerous challenges it faces – and how those challenges can be turned into strengths. Bulletin: Can you please give a brief overview of your career to date? Rebecca Sandford: I began as a clerk and then a lawyer in the dispute resolution team at DMAW Lawyers, where I worked on a broad range of commercial litigation matters. I moved to HWL Ebsworth in 2016, and am currently a Special Counsel in the litigation team there, practicing primarily in intellectual property law, media, technology and privacy law, competition and consumer law, and general disputes. Outside of legal work, I have been involved with the Law Society (Council and committees) since 2011, including past roles as Chair and Deputy Chair of the Women Lawyers’ Committee, and as a member of the Gender Equity Working Group and the Mandatory CPD Regulatory Committee. I currently chair the Legal Technology Committee and am a member of the Ethics and Practice, Corporate Governance and Audit & Risk Committees. I have also sat on boards and management committees for other organisations, including the Women Lawyers’ Association of South Australia, YWCA Adelaide, Spence Club Inc, and the Flinders Law School Board of Advisors, and was a co-founder of Women At The Table, a not for profit group established to foster business, career and leadership opportunities for South Australian women by creating networks and building relationships across industries and professions in SA. B: What drew you to a career in law? RS: Well my parents told me that I was good at arguing from a young age, which seems to have stuck! For me the practice of law often seems like a puzzle, and I find

10 THE BULLETIN December 2020

it fascinating how different elements of fact and law can fit together to generate solutions to people’s problems. It was a close call between law and teaching (I was a swimming instructor for over 8 years before becoming a lawyer) but I went to a Flinders University open day for Law and found myself nodding along with everything that was said, decided to give it a try, and have so far found it a rewarding choice. I also love that I get the chance to deeply understand lots of different industries and businesses, without having to change careers all the time. B: What drew you to your current workplace/area of law? RS: I am particularly interested in intellectual property because how people and businesses stamp their mark on the world intrigues me - there’s no one universal approach that applies for everyone, bundles of different IP rights get pulled together in unique ways, and I like that it keeps me connected with my creative side too. The media work is fun and interesting, rapidly changing and has given me great insight into what goes into news and current affairs reporting, and I find the competition and consumer area rewarding too because it lets me draw on my economics background and requires a deep understanding of my clients’ businesses and the markets in which they operate. B: Why did you nominate for Council? RS: I nominated because I was interested in learning more about how the profession operated, and a Junior Member position on Council seemed like a great place to do that - it was only after I joined Council that I really came to understand the breadth and depth of the Society’s role. I also was - and remain - interested in representing views and interests of those who might have difficulties getting to sit at that table, and working to make it easier for them to have a seat and contribute in future.

Rebecca Sandford

B: What have you got out of being a Council Member? RS: I attribute so much of how I work now to my involvement with the Council and the Society from the early days of my career. As a junior practitioner, to have close access to experienced practitioners from such varied practice areas and backgrounds was invaluable in shaping my approach to my own practice – often it’s easy to become focused just on the things that affect your own everyday work, but I have needed to understand a much broader range of matters affecting different aspects of practice, and of life and society in general, in order to deal with the varied issues which come before the Council, and that has meant my approach to my own practice often now involves more lateral thinking than I expect it otherwise would, which benefits my colleagues and clients. I’ve also made great friends through Council and had some interesting experiences due to my involvement with the Society, which I’m grateful for.

PROFILE

B: What do you see as the key challenges for the legal profession? RS: Dealing with and supporting mental health and wellbeing in the profession will be increasingly important, especially after events in 2020 which have affected us all in some way. Different sectors of the profession will and do face different challenges, but none of us are immune - lawyers consistently rate in the top few occupations with the highest prevalence of mental health problems, and some unique factors associated with the practice of law make it more likely that lawyers will face mental health challenges when compared to other types of work. Awareness and understanding of those issues has increased over time, and the work that has been and continues to be done by the Wellbeing and Resilience Committee in this space is to be commended (as are the support services offered by the Society including Law Care and the Young Lawyers’ Support Group), but I think we can still do more to provide assistance - individually and collectively - to those dealing with mental health difficulties in the profession, and to identify contributing factors and change some of the habits and behaviours which are prevalent in legal practice but can prevent us from operating at our best. We will also need to keep grappling with how we meet expectations of clients and the broader public whilst dealing with rapid technological change which affects how we work. The need to pivot quickly to online and remote solutions to continue delivering high quality service to clients during the COVID-19 pandemic has demonstrated how important it is for us all to have at least a basic understanding of technology to address our clients’ needs. We will have to balance retaining the positive parts of the deep traditions that guide our profession, whilst ensuring we don’t find ourselves stuck doing things in outdated ways just because that’s how they’ve always been done or we think they will be too hard to change - clients

and stakeholders including the Courts are increasingly demanding different approaches to the delivery of legal services, and those who can’t or won’t adapt to those changes are likely to really struggle.

and help promote and embed positive changes so lawyers can improve and better maintain their mental health (and healthier lawyers are better able to create and take advantage of opportunities).

B: What do you see as the key opportunities for the legal profession? RS: Our challenges also present us with great opportunities to shift the ways we have historically worked to better support our clients, our colleagues and our profession into the future. The practice of law teaches us to think in creative problem-solving ways, and to quickly assess and make use of new information, which are useful skillsets when it comes to adapting to change. Everything I’ve done over the last decade in working with the Society has also shown me that lawyers can be some of the most passionate and giving people, and tend to be incredibly hardworking and generous in support of a good cause - knowing that, I have great faith that we will continue to identify and offer innovative solutions in response to our challenges.

B: What advice would you give to practitioners who are interested in serving or improving the legal profession? RS: Please get involved in whatever way you can! It’s immensely rewarding and beneficial to do both personally and for the profession, and your contribution will be appreciated. For example the Society has over 30 special interest committees, and numerous panels and support services, so there are many ways that you can meet and work with colleagues across the profession to improve the practice of law (and of course there are many other great organisations and bodies that you can support too). In my experience it helps to have a good understanding of your own strengths and interests, and to work with things you are passionate about and people you connect well with - you’ll get far further with things that light you up than by sinking time into something you think you “should” do but which causes extra stress or doesn’t bring satisfaction. Also, getting involved doesn’t always have to mean taking on a huge commitment - even a few hours can make a big difference, to you and to the cause or organisation you’re assisting.

B: What do you think the Society should be advocating for to increase opportunities and improve the standing of the legal profession? RS: In addition to the changes that are currently being discussed locally and nationally to address sexual harassment, bullying and discrimination in the profession, I also believe we need to keep actively working to increase all forms of diversity in the profession, particularly in our leadership - doing so means we can bring different perspectives to decision making, connect with and show the many varied faces and experiences of legal practice, and ensure our leadership is genuinely representative of the profession and broader society. The Society has also been advocating in recent years for mandatory CPD on mental health, wellbeing and resilience - this would increase education on this important topic,

B: What are some of your interests outside of the law? RS: I am an enthusiastic supporter of South Australian businesses, especially our great hospitality offerings, so a favourite way to spend an evening or a weekend is exploring our local markets, restaurants, bars, wineries, distilleries and cafes (subject to restrictions these days of course)! I also practice yoga, love to watch movies and read something other than Council papers whenever I can, and enjoy getting back in the pool for a few laps as well. B December 2020 THE BULLETIN

SEXUAL HARASSMENT

Bullying, sexual harassment and discrimination in the legal profession: What is the Society doing about it? AMY NIKOLOVSKI, CHAIR, EQUALITY DIVERSITY AND INCLUSION COMMITTEE & SA REPRESENTATIVE, LAW COUNCIL OF AUSTRALIA EQUAL OPPORTUNITY COMMITTEE

Amy Nikolovski reflects on how the legal profession has responded to the scourge of sexual harassment to date, announces funding for a new training package, and explains the National Action Plan on dealing with sexual harassment, which all law societies have signed up to.

he Society has acknowledged the systematic problems within the profession with respect to bullying, sexual harassment and discrimination. In 2018 the Society conducted a Bullying, Sexual Harassment and Discrimination survey, the results of which were concerning. As a consequence of the outcome of that survey a Bullying, Harassment and Discrimination Working Group was formed. The Working Group was made up of senior practitioners across the profession including a member of Bar Council, in order to make recommendations as to how to deal with these systematic issues. As a consequence, the Working Group (of which I was Chair), made the following recommendations that were adopted by Council on 3 December 2018: 1. Consider (on behalf of Council) and action applying for a Law Foundation grant to fund the initiatives of the Working Group; 2. Assess appropriate educational content and tools - engage with Dr Niki Vincent (Equal Opportunity Commissioner) on how best to proceed with educating the profession; 3. Report to Council following the

12 THE BULLETIN December 2020

meeting with Dr Niki Vincent for Council to consider an external report to be commissioned as to what processes and practice can be put into place to assist the profession (funding to be sought as part of the Law Foundation grant); 4. Agitate for a mandatory CPD unit on Bullying, Discrimination and Sexual Harassment and Well-being and Resilience to be included in the prescribed number of units for practitioners to complete; 5. The President/Chair to engage directly with the SA Bar Association (the President) to discuss the outcomes and proceed as a profession as a whole; 6. Facilitate a meeting with the respective heads of each jurisdiction to get them on board in addressing the issue, noting complaints of bullying from the bench and Bar table; 7. The Society combine all available resources on one easily accessible webpage (available to all of the profession not just Members) and then alert the profession to its existence; 8. Council considers reengaging with the Law Council/Conference of Law Societies regarding a potential Modern Award to cover practitioners (noting complaints of non-payment, underpayment etc. included in the commentary in the survey); 9. These recommendations be included in the Society’s 2019 Strategic Plan and followed up at 12 months, 3 years, 5 years and 10 years respectively; 10. Agitate the Legal Practitioners Education Admission Council (LPEAC) for amendment to LPEAC Rules to include a requirement for compulsory attendance at Bullying, Discrimination and Sexual Harassment training on re-entering the profession after absence, similar to the current Risk Management

and Trust Account Refresher Courses. The Society is pleased to confirm that as a result of ongoing advocacy all of these recommendations have now been met. The Society’s Council adopted Guidelines for Bullying, Discrimination and Harassment on 4 November 2019, which have been promulgated to the profession and are included on a dedicated page for Bullying and Harassment in the Workplace, on the Society’s website. The site also includes information about the Society’s support programs including the Practitioner Advice Service and Young Lawyer’s Support Group. Members of these two panels recently participated in a training program that included how to assist those who contact them in relation to bullying, sexual harassment or discrimination matters. LPEAC has decided that it will make it mandatory for practitioners to include one Continuing Professional Development point relating to Bullying, Discrimination and Sexual Harassment within the 10 Mandatory CPD points, making South Australia the first State or Territory to announce same. LPEAC is currently working to amend the MCPD Rules to effect this. The Law Foundation has approved a grant to for the development of educational content and tools by the Office of the Equal Opportunity Commissioner. The amount of the grant was unfortunately for an amount less than the cost advised by the Equal Opportunity Commissioner for doing so. An alternative proposal to the Law Foundation for a substantially similar project within the approved amount is being developed. The Society is of the strong view that the training and tools must be available to all of the profession (not just Society Members) at no cost to them. In addition to the being able to deliver

SEXUAL HARASSMENT

these results the Society has participated and delivered the following this year: 1. LSSA Forum: “Sexual Harassment within the legal profession in the era of the #metoo movement”, delivered by Amy Nikolovski, 13 February 2020; 2. CPD: “National Inquiry into Sexual Harassment, spotlight on the Legal Profession”, delivered by Kate Eastman SC, chaired by Amy Nikolovski, 2 June 2020 (free CPD); 3. Participated in the National Round Table into Sexual Harassment in the Legal Profession hosted by the Law Council of Australia, LSSA attendee Amy Nikolovski, 8 July 2020; 4. CPD: “Sexual Harassment in the Legal Profession”, delivered by Kate Eastman SC, Jane Needham SC, Legal Profession Conduct Commissioner Greg May and Amy Nikolovski, 8 September 2020 (free CPD); 5. Participated in the Flinders Law Students’ Association Panel on Sexual Harassment in the Legal Profession, Panel Members: Amy Nikolovski, Rebecca Sandford (President-Elect), Hon Justice Judith Hughes and Mark Ferraretto (lecturer at Flinders), 8 September 2020; 6. Next Steps Seminar Series: “Maintaining Integrity at Work”, Adelaide Law School, Panel Members, Hon Chief Justice Kourakis, Amy Nikolovski and Will Snow. The Society has also • provided commentary to countless radio stations and news media including most recently the High Court’s announcement of its investigation of allegations made against former Justice of the High Court, Hon Dyson Heydon AC QC. • published articles in the Bulletin, including in December 2019 a

report on the results of the survey mentioned above; a President’s Message by Tim White in August 2020 reporting on work being done; and in November 2020 an article by the Legal Profession Conduct Commissioner on the sexual harassment complaints process.

SO WHERE TO FROM HERE? On 26 November 2020 the Parliamentary Inquiry into harassment into the legal profession was launched, with the Inquiry set to be completed by February 2021. The Society will not be sitting on its hands awaiting the outcome of the Inquiry, as we have and continue to acknowledge that there is a problem with bullying, sexual harassment and discrimination in the legal profession. The Society in conjunction with the Equal Opportunity Commissioner’s Office will begin the delivery of a tailored CPD program and will continue to participate on the national stage with our involvement with the Law Council of Australia’s National Action Plan. The Society is fully supportive of and will work with other Law Societies to implement the National Action Plan which includes: 1. Advocating for reform of the Federal Sex Discrimination Act; 2. Supporting the work of the Australian Human Rights Commission, in particular advocating for the key recommendations of its Respect@ Work Report, namely recommendations 14, 16, 17, 20, 21, 26 and 40; 3. Driving cultural change in the legal profession, through the development of a national model sexual harassment policy; a centralised source of information and suite of educational tools; amendment to the professional

conduct rules; and driving change through the facilitation of a consistent complaints process across all jurisdictions; and 4. Supporting the need for a Federal Judicial Conduct Commissioner, noting that the South Australian Judicial Conduct Commissioner the Hon. Ann Vanstone QC, has no power over federal jurisdictions). The ongoing important work of the Society in this space will continue and I know it will also be a major objective of our incoming President Rebecca Sandford as it was in my Presidential year. Rebecca is representing the Society on the Courts’ Respectful Behaviours Working Group. Although there is a lot more to be done within the profession, I am encouraged that bullying, sexual harassment and discrimination is being called out by many, including those in positions of power, none more powerful than Chief Justice Kiefel. In her recent statement relating to the conduct of the Hon Dyson-Heydon she said “We’re ashamed that this could have happened at the High Court of Australia. We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed”. This statement was powerful in that it not only acknowledges the victims, but confirmed that they were believed, often one of the impediments to standing up and calling out harassment. I am also pleased to see that the behaviour is being addressed in our Law Schools, to ensure that our next generation of lawyers know that what has been seen to be a systemic issue within the profession is not acceptable behaviour and they shouldn’t accept it. B

December 2020 THE BULLETIN

INSOLVENCY LAWS

A TALE OF TWO SYSTEMS - CHAPTER 11 AND THE INSOLVENCY REFORMS SEAMUS BRAND, ASSOCIATE, LIPMAN KARAS & TRAVIS SHUEARD, ASSOCIATE, CHARLTON ROWLEY

uch has been written about the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 since Josh Frydenberg announced “the most significant reforms to Australia’s insolvency framework in 30 years” on 24 September, 2020.1 Mondaq described it as “a significant shift from the current ‘creditor-in-possession’ regime to a ‘debtorin-possession system’”,2 the Victorian Chamber of Commerce deemed the reforms a way for “small business to dig their way out of debt rather than calling in administrators”,3 and the Australian Restructuring, Insolvency and Turnaround Association (ARITA) published a practice alert summarising the proposed reforms and raising their own various concerns.4 The readily accepted narrative is that the Federal Government’s changes are based on the United States’ Chapter 11 Reorganization regime. However, there has been far less discussion on what this actually means and whether the US regime should actually be considered a standard to aspire to. In this article, we begin with a brief description of what Chapter 11 is and what its goals are. We will then move to consider whether Chapter 11 is seen to be successful in the US and conclude by

14 THE BULLETIN December 2020

examining whether the proposed changes can accurately be described as “based on” Chapter 11.

WHAT IS CHAPTER 11? A corporate restructuring or “reorganization” (to borrow the US term) was once described as a: “[A] combination of a municipal election, a historical pageant, an anti-vice crusade, a graduate-school seminar, a judicial proceeding, and a series of horse trades, all rolled into one - thoroughly buttered with learning and frosted with distinguished names. Here the union of law and economics is celebrated by one of the wildest orgies in intellectual history. Men work all night preparing endless documents in answer to other endless documents, which other men read in order to make solemn arguments.”5 It is with the above in mind when we consider the US Chapter 11 bankruptcy laws and their clear intent to bring order to what is otherwise a chaotic period in a company’s lifecycle. The United States Federal Code is a consolidated piece of legislation compiling US Federal law into one place. The Code is first divided into Titles and then each Title is further divided into Chapters. Title 11 of the US Code covers bankruptcy and, confusingly, Chapter 11 of that Title

is entitled “Reorganization.”6 It is this Chapter that the reforms are said to be based upon. To file for Chapter 11, a debtor or creditor files a Chapter 11 petition with the bankruptcy court serving the debtor’s domicile, which supervises the reorganization.7 A company which files for Chapter 11 is assigned a committee representing the interests of creditors and shareholders. The committee works with the company and develops a restructuring plan to reorganise the business, reduce its debt, and return to profitability. The debtor has 120 days to file its reorganization plan and 180 days to obtain acceptance of the plan by 2/3rds of creditors,8 although this can be (and often is) extended.9 Once the plan is confirmed, the debtor is discharged for debts before the confirmation and is bound by the provisions of the reorganization plan.10 Chapter 11 was designed “to reduce holdout problems and to facilitate a timely and value maximizing reorganization.”11 Similar to Australian counterparts, it achieves this by allowing for an automatic stay of proceedings against the company filing for Chapter 11 protection,12 creating a classification (or priority) of creditors,13 and requiring two-third majority voting

INSOLVENCY LAWS

rules.14 It is similar to administration, in that it is an attempt to reorganise, restructure and save a company before liquidation becomes necessary, but it differs materially in its “debtor-inpossession” model, in that the company remains in control of the business and is usually appointed the trustee for the duration of the reorganization. The debtor is required to prepare a plan for the reorganization of the company, culminating in the repayment of creditors and the ongoing running of the company, similar to voluntary administration but avoiding the disruption and expense of engaging an administrator.15

DOES CHAPTER 11 WORK? Whether the Chapter 11 laws work is a matter of much debate, both in the US and abroad. The conventional wisdom is that Chapter 11 reorganizations mostly fail before they even have a chance to

implement a plan. Empirical studies undertaken in the 1990s determined that (at that point) more than 8 out of every 10 Chapter 11 cases failed before a plan of reorganization could be put in place.16 In many cases, it is simply a strategic decision by the debtor-in-possession to delay the inevitable. Further, Heron, Lie and Rodgers found that firms who undergo a Chapter 11 reorganisation might reduce their debt burden, but would nonetheless emerge with higher debt ratios than what was typical in their respective industries.17 Whereas there is a degree of certainty of assets in a liquidation, a Chapter 11 reorganization lacks such certainty and often results in various classes of creditors haggling and negotiating to maximise the size of their respective claims. This often causes post-reorganization structures overburdened with debt because of claimholders who refuse to give up on their claims, resulting in greater debt by

the time the liquidator is appointed. Notwithstanding the above, there is also the issue of the “debtor in possession” preparing the plan for restructuring – whereas independent external administrators (nominally) have the impartiality to determine when a company should be liquidated, the “debtor in possession” has a clear interest in keeping the company alive, regardless of whether it is productive to do so. However, the benefits of the US Chapter 11 laws are also apparent: the automatic stay of proceedings and claims against the company is the most obvious, but other benefits are not as widely known in Australia. For example, “debtor in possession” financing allows a business to obtain financing to provide the business with liquidity to assist with its reorganisation. The US bankruptcy courts can grant lenders incentives to provide finance to debtors, such as “super priority” liens over assets that are pledged to other

MAKE AMAZING MEMORIES ON THE

MIGHTY MURRAY

We are excited to announce that the PS Murray Princess is back cruising, and our crew are looking forward to welcoming you onboard. Cruises depart Mannum in South Australia. Complimentary coach transfers are included from Adelaide, or secure car parking is available in Mannum (bookings essential).

We all can’t wait for Christmas after the year we’ve had! Join us for this very special festive cruise departing Renmark on Wednesday 23 December 2020.

What better way to bring in the new year than aboard the PS Murray Princess! Departs on Wednesday 30 December 2020.

7 NIGHT CRUISE

$2499PP

FROM

5 NIGHT 2020 NEW YEARS CRUISE

FROM

7 NIGHT 2020 CHRISTMAS CRUISE

7 NIGHT CRUISE

$1785PP

For more information, visit MurrayPrincess.com.au or call us on 1300 729 938 *Conditions apply. See website for details.

December 2020 THE BULLETIN

INSOLVENCY LAWS

lenders. This process has created its own pocket industry of finance. Another advantage is the opportunity under section 363 of the US Bankruptcy Code to clear claims, liens and other liabilities which may otherwise prevent a sale of the business – this incentivises potential purchasers of the business, providing more imaginative exit routes for companies under Chapter 11. Further, there are benefits for the existing management to retain control; familiarity with the business’s operations allow for a degree of efficiency in restructuring. Many companies hire special financial advisors or turnaround management consultants to assist in the restructuring – indeed, significant creditors may demand this as requirement for their cooperation.

ARE THE PROPOSED REFORMS TRULY CHAPTER 11? There are key similarities between the proposed insolvency reforms and Chapter 11, the most obvious being that both follow debtor-in-possession models which permit the company to continue trading throughout the process. Similarly, both require the production of a Restructuring Plan designed to address the company’s debts and be approved by its creditors. Unsecured and some secured creditors are also prevented from taking action against a company availing itself of both procedures. However, the Australian model substantially differs from the US precedent. Most notable is the role of the Small Business Restructuring Professional, a form of “quasi-administrator” who assists the company in developing its plan (for a flat fee) and then, if the plan is approved, is kept on to assist in its administration. The approval of the plan is also a key difference, requiring only a 50% endorsement by creditors to the US 2/3rd approach. There are also safeguards preventing the use of the Australian restructuring process more than once every seven years which do not apply to Chapter 11. Finally, the Australian restructuring process is available only to companies with liabilities of $1 million or less. There is no such restriction on the US process which, famously, allowed corporate titans like Enron and Lehman Brothers to avail

16 THE BULLETIN December 2020

itself of the protection despite limited chance of a successful restructuring.18 Whether or not this is desirable is open to debate, given that both General Motors, United Airlines and K-Mart all successfully utilised Chapter 11 to continue trading, despite their respective financial turmoil.19 The proposed reforms appear to be an attempt to emulate Chapter 11 but to leave behind the aspects of it which create the most risk: the lack of any restriction on which companies are entitled to the process and the lack of any independent advisor in charge of developing the restructuring plan. However, the proposed reforms will still present some of the risks inherent in Chapter 11. The $1,000,000 liability threshold potentially allows for more complex entities closer to the threshold to manipulate the restructuring process as a means of phoenixing.20 Finally, the adoption of a mere 50% of creditors to implement a plan creates an entirely new risk that does not exist in Chapter 11: that a number of less sophisticated and optimistic creditors will approve a plan that more seasoned but fewer in number creditors would reject, prolonging a company’s collapse and ultimately increasing its liabilities. Ultimately, the proposed reforms are, at least in principle, an Australian emulation of Chapter 11, manipulated to fit into an existing and vastly different corporate law and insolvency framework. Industry concerns with the model are best summarised by ARITA’s submission to the Federal Treasury, including a grave concern that these changes are rushed and do not embody the spirit of insolvency reforms long advocated by ARITA.21 While it may be said that the economic onslaught of COVID-19 has made the need for a restructuring framework that is friendlier to SMEs than voluntary administration more apparent, to do so by emulating another country’s system without thoroughly interrogating and addressing that system’s shortcomings would be a missed opportunity. B

8 9 10 11

12 13 14 15 16

17 18

19 Endnotes 1 Josh Frydenberg & Michael Sukkar ‘Insolvency reforms to support small business recovery’ (Media Release, 24 September 2020) <https:// ministers.treasury.gov.au/ministers/joshfrydenberg-2018/media-releases/insolvency>. 2 Mitchell Waters, ‘Australia: Sweeping changes to insolvency laws proposed’, Mondaq (online, 28 September 2020) <https://www.mondaq.

com/australia/insolvencybankruptcy/988750/ sweeping-changes-to-insolvency-lawsproposed>. ‘Insolvency law changes to save small businesses on the brink of collapse’, Victorian Chamber of Commerce (Web Page, 24 September 2020) <https://www.victorianchamber.com.au/newsmedia/all/2020/09/new-insolvency-laws-forsmall-business>. Practice Alert: Key points on insolvency reforms to support small business’, Australian Restructuring, Insolvency and Turnaround Association (Practice Alert, 24 September 2020) <https:// www.arita.com.au/ARITA/News/Practice_ alerts/Practice_Alert__Key_points_on_ insolvency_reforms_to_support_small_business. aspx?WebsiteKey=b816b009-db48-41fc-b61c3a924dda6f0f>. Harvey R Miller and Shai Y Waisman ‘Does Chapter 11 Reorganization Remain a Viable Option for Distressed Business for the TwentyFirst Century?’ (2004) 78 American Bankruptcy Law Journal 153 quoting Thurman Arnold, The Folklore of Capitalism (1937), 230. The authors employ the US spelling for the purposes of clarity of expression, albeit reluctantly. ‘Chapter 11 – Bankruptcy Basis’ United States Courts (Web Page) <https://www.uscourts.gov/ services-forms/bankruptcy/bankruptcy-basics/ chapter-11-bankruptcy-basics>. 11 U.S.C. § 1121. 11 U.S.C. § 1121(d). 11 U.S.C. § 1141(d)(1) Randall A. Heron, Erik Lie and Kimberly J Rodgers ‘Financial Restructuring in Fresh-Start Chapter 11 Reorganizations’ (2009) Financial Management 727, 730. 11 U.S.C § 362. 11 U.S.C § 507. 11 U.S.C § 1126. 11 U.S.C § 1123. See National Banker, Review Commission, Bankruptcy: The Next Twenty Years 610-612 (1997); Ed Flynn, Administrative Office of the US Courts, Statistical Analysis of Chapter 11 (1989); however, see Elizabeth Warren & Jay L Westbrook, “The Success of Chapter 11: A Challenge to the Critics” (2009) 107 Michigan Law Review 603, 626 where they characterise that Chapter 11 cases often move faster than what is commonly believed. Heron, Lie and Rodgers, above n 11, 730. Katy Stech Ferek, ‘Fed Says Lehman Brothers Chapter 11 Case is Costliest In History’ Wall Street Journal (Online) 16 January 2019 <https://www.wsj.com/articles/fed-sayslehman-brothers-chapter-11-case-is-costliest-inhistory-11547673357>. Maya Dollarhide, ‘Chapter 11’, Investopedia (Webpage, 26 May 2020) <https://www. investopedia.com/terms/c/chapter11. asp>. John Winter, Submission to Treasury, (12 October 2020) <https://www.arita.com.au/ ARITA/News/Submissions/Submission__ Insolvency_reforms_to_support_small_ business__.aspx>. Ibid.

STEP UP TO THE BAR

Development program helps redress gender imbalance at the Bar

emales make up over 50 per cent of legal practitioners in South Australia however very few pursue a career as a barrister. The Step Up to the Bar program is an equal opportunity initiative of the Chief Justice of South Australia and the South Australian Bar Association aimed at bridging the gender divide at the Independent Bar and judiciary. The program is a 12 month full time opportunity for female legal practitioners to gain experience within the higher court jurisdictions prior to pursuing admission to the Independent Bar of South Australia. The participant will be appointed within Chambers of the Supreme Court of South Australia. They will gain experience

and exposure to complex legal cases and will work closely with the judiciary and an appointed Judicial Mentor.

RECRUITMENT AND SELECTION To be eligible for the Step Up to the Bar Program, the applicant must: • be a female legal practitioner with an interest to pursue a career with the Independent Bar of South Australia; • have demonstrated legal competence and expertise; • have approximately five years postadmission experience; • be admitted to the Supreme Court of South Australia;

• have a current and unrestricted practising certificate; • have a National Police Check. Applicants are required to submit the following: 1. Cover letter 2. Up-to-date curriculum vitae 3. Copy of current and unrestricted practising certificate. Applications should be sent to dianne.mifsud@courts.sa.gov.au by 26 February, 2021. For more information, please contact: Dianne Mifsud, Executive Assistant to the Chief Justice, dianne.mifsud@courts.sa.gov.au B

Step up to the Bar program an invaluable opportunity BY MARISSA MACKIE, ANTHONY MASON CHAMBERS

was the third Step Up to the Bar program participant and started at the Court in July, 2019. I have largely worked in areas of commercial, taxation and regulatory litigation and was keen to develop my skills in other practice areas. I had the opportunity to work on some landmark judgments and other complex matters across both the criminal and civil jurisdiction and have since developed an interest in expanding my practice in other areas including estate litigation, employment and migration law. I was originally considering whether it may be more beneficial to spend another year in my previous role before commencing at the Bar and spoke to the previous participants about the opportunity which helped confirm that my decision was the right one. Despite feeling a bit out of my depth when a Supreme Court Justice would ask my views on a matter, I found the experience incredibly rewarding. I learnt so much from all the

judicial officers I worked with across the District, Supreme and Federal Courts who were more than willing to give up their time to provide mentoring, some very useful lessons in how to be a good advocate, and most importantly anecdotal experience about what life at the Bar really involves. Having predominantly worked in government, it also gave me the invaluable opportunity to further build my networks. Since finishing the Program in June I have joined the Independent Bar at Anthony Mason Chambers and have not looked back, often reflecting on the skills I developed during my time at the Court. The collegiality at the Bar is second to none and I have had great support from those within and outside my chambers as well as from my judicial mentors. I would strongly encourage any female practitioner considering pursuing a career at the Bar to apply to undertake the Program and more than happy to discuss my experiences with anyone who is interested. B

Marissa Mackie

December 2020 THE BULLETIN

CORPORATE GOVERNANCE

ASIC V MITCHELL SERVES UP GUIDANCE ON DIRECTORS’ DUTIES ALLIE UMOFF, SENIOR ASSOCIATE & KATIE WALSH, ASSOCIATE, LIPMAN KARAS

he recent judgment by Beach J in ASIC v Mitchell (No 2) offers helpful guidance on the role of the chairperson, the extent to which boards can rely on the judgment and expertise of management and the scope of the business judgment rule. The judgment arose out of a high profile legal battle over the $200 million broadcast agreement between Seven Network Holdings (Seven) and the peak tennis body, Tennis Australia Ltd (Tennis Australia). ASIC alleged that Mr Stephen Healy, the former chairperson of the Tennis Australia Board,1 breached various statutory directors’ duties under the Corporations Act 2001 (Cth) (the Act) in the course of negotiations between Tennis Australia and various networks (including Seven) in respect of the Australian Open broadcast rights. In the midst of the negotiations with Seven, the then-CEO of Tennis Australia, Mr Steven Wood, chose not to provide certain information to the board, which related to the other potential bidders for the broadcast rights. Mr Healy was also aware of this information and ASIC alleged that as chairperson, Mr Healy had a responsibility to disclose this information to the full board and that in failing to do

18 THE BULLETIN December 2020

so, Mr Healy breached his duty of care and diligence under s 180(1) of the Act.2 In defence of his conduct, Mr Healy contended that he was entitled to rely on Mr Wood’s judgment in respect of what information would be of assistance to the board at the relevant time, as Mr Wood was charged with managing the broadcast right negotiations and was accordingly best placed to make that judgment.3 In finding that ASIC had not made out any of its allegations of breach against Mr Healy, Beach J provided directors and chairpersons with useful direction in how to approach their roles and appropriately discharge their duties to their organisation.

DUTIES OF THE CHAIRPERSON As Beach J observed, the Act does not make any express reference as to the role or functions of the chairperson.4 Accordingly, chairpersons have previously had to turn to academic commentary and soft law principles for guidance, such as the ASX Corporate Governance Council’s Corporate Governance Principles and Recommendations. It is important to understand the proper scope of the role of the chairperson because their duty of care and diligence under s 180(1) of the

Act is to be determined by reference to not only statutory responsibilities, but also any other responsibilities they might have within the corporation, regardless of how those responsibilities come to be imposed.5 Justice Beach provided a comprehensive overview of the overarching powers and responsibilities of chairpersons, including: • presiding at board meetings and exercising procedural control;6 • setting the agenda items for board meetings, although this can be done in consultation with the CEO;7 • ensuring the board has sufficient information to allow it to meaningfully consider, discuss and decide on the agenda items, which may also be done in consultation with the CEO;8 • managing the board to ensure sufficient time is allowed for the discussion of complex or contentious matters, including arranging meetings outside of board meetings if necessary;9 • ensuring board members work effectively together and that their skill sets and personalities complement one another;10 • facilitating the effective contribution of each director;11

CORPORATE GOVERNANCE

• ensuring workable, productive and harmonious relations between the directors, the board and executive management, including dealing with any disrupters on the board;12 • defining, and ensuring that the board sets and implements, the corporate culture and corporate governance structure of the organisation;13 • assisting to identify new directors, induct new directors, ensure the continuing education and development of each director, and generally monitor the performance of the board, its members and committees;14 • ensuring there is appropriate communication with members, and that the interests and concerns of members are taken into account;15 and • playing a public relations role in representing the board and the organisation to outside parties. Further, Beach J identified matters specific to the particular organisation and the particular chairperson that would need to be considered in understanding the chairperson’s role in any given case. Those matters include:16 • the actual structure and allocation of responsibilities within the organisation

which inform that organisation’s expectations of its chairperson; • the normative corporate practices which should have been in place within the organisation; and • any representations or undertakings by the chairperson regarding what they would do or what personal skills or qualities they would bring to the role. Despite the enumerated list of responsibilities set out above, Beach J observed that the position of chairperson carries no greater authority than that of an ordinary director, even though the power and authority to manage board meetings may mean the chairperson has greater responsibility for the performance of the board as a whole.17 Indeed, the responsibilities unique to the chairperson can be seen to be procedural and facilitative in nature, aimed at enhancing the effectiveness of the board as a whole, rather than directed to giving any greater powers to the chairperson in any substantive matters.

to determining the amount and quality of information to be put before the board to deal with any one or more agenda items, Beach J had regard to the specific role and responsibilities of Mr Wood as CEO, as outlined in Mr Wood’s employment agreement, and the respective roles of the board and CEO as outlined in Tennis Australia’s annual report.18 Justice Beach held that, in performing his role as chairperson and a director of Tennis Australia, Mr Healy was entitled to take into account Mr Wood’s role as CEO and to act on the basis that, in the absence of good reason to suggest to the contrary, Mr Wood was adequately discharging his duties.19 While noting that the chairperson was not entitled to completely delegate to the CEO the function of determining the amount and quality of information to be put before the board, Beach J held that Mr Healy could and should consult with Mr Wood on that issue and was entitled to rely on Mr Wood’s judgment if satisfied that it had been exercised appropriately.20

RESPECTIVE ROLES OF THE BOARD AND THE EXECUTIVE

SECTION 189: RELIANCE ON OTHERS

In considering whether Mr Healy had discharged his responsibilities with respect

In defence of his reliance on Mr Wood’s judgment, Mr Healy invoked December 2020 THE BULLETIN

CORPORATE GOVERNANCE

s 189 of the Act, which establishes a presumption of reasonableness in respect of a director’s reliance on the professional or expert advice of others if that reliance is made in good faith and after having made an independent assessment of the information or the advice. Beach J held that:21 independent assessment requires no more than that the director, having listened to and assessed what his colleagues have said, must bring his own mind to bear on the issue using such skill and judgment as he may possess. Further, there must be evidence that he in fact relied on the information provided. After considering the evidence of both Messrs Wood and Healy on the issue, Beach J held that Mr Wood had appropriately exercised his judgment regarding what information to provide to the board and Mr Healy had reasonably relied on that judgment.22

SECTION 180(2): BUSINESS JUDGMENT RULE In obiter, Beach J considered the operation of the business judgment rule contained within s 180(2) of the Act. The question of who bears the evidentiary and legal onus to establish the four elements of s 180(2) is one that has plagued Courts since the provision’s beginning. Beach J expressed the strong view that it is the defendant who bears the onus of proving these matters, and voiced his disagreement with any single judge decisions to the contrary.23 In the opinion of Beach J, the fact that the statutory criteria are within the ‘purview, personal knowledge of and proof by the defendant’ suggests that the statutory intention is that the defendant bear the evidentiary and legal onus.24 Justice Beach also noted his view is strengthened by the fact that s 180(2) creates a presumption, necessitating that the defendant establish the criteria to enliven that presumption.25 Justice Beach agreed with Austin J’s interpretation in ASIC v Rich (2009) 75 ACSR 1 that the questions of whether

20 THE BULLETIN December 2020

the director has informed themselves about the subject matter of the judgment to the extent that they reasonably believe to be appropriate and whether they rationally believe that the judgment is in the best interests of the company, are to be determined by reference to what the director knew and not by reference to what they ought to have known.26 However, Beach J commented that, if he were required to consider the issue (which he was not), he ‘very much doubt[ed]’ that Mr Healy’s decision to include or not include information to be provided to the board would fall within the statutory definition of ‘business judgment’ in s 180(3) of the Act (‘any decision to take or not take action in respect of a matter relevant to the business operations of the corporation’).27 Although Beach J’s comments on this issue are only obiter and are not fully reasoned, they indicate a potentially narrower scope for the business judgment rule than may have otherwise been thought to be the case based on the expansive language in the statute itself. While not many decisions have yet directly considered this application of the business judgment rule, Beach J’s obiter is generally consistent with the comments made in other decisions where the issue has been raised. Justice Beach’s comments in this regard serve as a useful reminder to chairpersons (and directors) in their approach to similar decisions, that the scope of protection available under the business judgment rule may not be as broad as the language in the statute otherwise suggests.

CONCLUSION Justice Beach’s judgment will likely be well-received by directors as offering a remedy to the previous lack of guidance as to the duties and responsibilities of a chairperson by providing a comprehensive overview of such responsibilities, including confirming that chairs are entitled to rely on the expertise and opinions of executive management in discharging their duties. It further clarifies that the requirement that

directors conduct an ‘independent assessment’ of the information or advice they are relying on requires no more than the director, having listened to and assessed what their colleagues have said, bringing their mind to bear on the issue using their own skill and judgment. Similarly, the decision provides useful clarity and guidance with respect to the statutory business judgment rule contained within s 180(2) of the Act. It confirms that the legal and evidentiary onus of establishing the requirements of s 180(2) rests upon the director seeking to invoke the rule, and it offers a valuable reminder that the scope of the rule may not be as broad as the language in the statute otherwise suggests. B Endnotes 1 ASIC also brought claims for breach of duty against Mr Harold Mitchell, the former vice president of the Tennis Australia board, but those claims are not relevant to the issues discussed in this note. 2 Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098 at [1177] per Beach J. 3 Ibid at [1446]-[1447]. 4 Ibid at [1399]. 5 Ibid at [1406] (quoting Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465 at [18]). 6 Ibid at [1409]. 7 Ibid at [1410]. 8 Ibid at [1411]. 9 Ibid at [1412]. 10 Ibid at [1413]. 11 Ibid. 12 Ibid at [1414]-[1415]. 13 Ibid at [1416]-[1417]. 14 Ibid at [1418]. 15 Ibid at [1419]. 16 Ibid at [1421]-[1424]. 17 Ibid at [1409]. 18 Ibid at [1137], [1142]. 19 Ibid at [1138]. 20 Ibid at [1166]. 21 Ibid at [1459]. 22 Ibid at [1447]-[1464]. 23 Ibid at [1435]. 24 Ibid. 25 Ibid. 26 Ibid at [1437]-[1439]. 27 Ibid at [1441].

YOUNG LAWYERS

Young lawyers relish chance go have face to face fellowship at Premium Dinner

facebook.com/YLCSA

PATRICK KERIN, LYNCH MEYER LAWYERS

he annual Young Lawyers’ Premium Dinner for 2020 was held on Tuesday, 27 October, 2020 at the relatively new Bambini Cucina on Peel Street. The intimate crowd of around 45 attendees enjoyed a night of networking, socialising and fantastic food; as well as an informative and humorous speech from our special guest, the Honourable Justice Chris Bleby. Hand sanitiser was graciously supplied upon entry, with attendees then participating in informal and sociallydistanced networking before the entrée was served. Justice Bleby then spoke, conveying several key lessons about what the judiciary expects or assumes of young lawyers, at what his Honour mused was an apposite time given his relatively recent appointment to the bench. His Honour regaled the attendees with several stories spanning the course of his career to date, in a humorous and relatable manner, demonstrating his Honour’s characteristics which make him so well regarded not only as a legal personality. Main courses were subsequently served with most opting for Bambini’s famous gnocchi.

Madeleine Eaton (left) and Katrina Fitzgerald

Ben Clarke (left), Vanessa Camerlengo, Giorgia Maiorana and Ashlee Wachtel

Special thanks to Justice Bleby for taking the time out of his busy schedule to speak to young members of the profession, and for mingling with all attendees. In particular, his Honour was required to sit late on the evening of the dinner owing to a jury which had been out for almost a week in the trial of Freddy Quimby. For those of you playing at home, the jury was ultimately unable

to determine whether it is pronounced “chowdah” or “chowder”. The Young Lawyers’ Committee would also like to thank all of the attendees who supported the event and purchased all of the tickets quicker than toilet paper in Australia in April, 2020; Bambini Cucina for hosting and for their excellent hospitality; as well as our major sponsor Burgess Paluch Legal Recruitment. B

Chanel Martin (left), Bimaya De Silva, Lauren Willgoose

Justice Bleby flanked by Tim White (left) and Rebecca Sandford

December 2020 THE BULLETIN

FEATURE

HAS THE INTRODUCTION OF ADULT ADOPTION IN SOUTH AUSTRALIA BEEN A SUCCESS? EVA BAILEY, PARTNER, ANDERSONS SOLICITORS

n December, 2016 the South Australian Parliament enacted legislation that changed the Adoption Act 1988 (SA) (“the Adoption Act”) to enable adults to be adopted. In December, 2018 the Adoption (General) Regulations 2018 came into effect, enabling adult adoptions to proceed. The process permitting applications for the adoption of adults in South Australia has now been in place for approximately two years but has the change been a success?

WHY WAS THE ADOPTION ACT CHANGED? Since the changes to the Adoption Act have come into force I have been asked by a number of people as to why on earth an adult would want to be adopted? At first the idea sounds a little silly, however, when considered more closely the answer becomes clear... The South Australian Parliament’s review of the Adoption Act was conducted in 2014 and 2015. Through this review they found that: 1. There were adults who had lived their lives in foster care or under the guidance of a parental figure that was not their biological parent and, that; 2. Ultimately those adults wanted to legalise their relationship with the people in their lives who had in fact done the job of raising them. As we all know there are many

22 THE BULLETIN December 2020

instances in life when for some reason or another a biological parent is unable to properly care for a child or their circumstances are such that it is impractical or perhaps impossible for them to do so. As a result of this in some cases the child in question is fortunate enough to have someone else that steps in to take over the role of that important parental figure and they find themselves growing up with someone other than their biological parent. It is this quasi-parent who then provides them with the love and emotional support that should have been afforded to them by their biological parent. In many cases they also provide them with financial and other forms of support. In the last two years since the legislation came into effect, I have assisted families to achieve successful adult adoptions and I have found that the most common case where this has occurred is where the role of a parent has been undertaken by a foster parent or by a stepparent.

HOW DOES ADULT ADOPTION WORK? In order for an adult person to be adopted under the Adoption Act 1988 (SA) there must be a connection between the person wanting to adopt that person, and the person seeking to be adopted, to the State of South Australia. This is due to the fact that the legislation is state based and

each state has its own legislation relating to adoption in general. Some of the other states in Australia also allow adult adoption (not all of them) and the legislative requirements differ from state to state. There must also be a pre-existing parental relationship between the adopting parent and the adoptee adult child. In accordance with the terms of the Adoption Act the person being adopted is still referred to under that Act as a child despite the fact that the person may be an adult who has attained the age of 18 many years prior. In order for an adoption to be successful the applicant must apply to the Youth Court of South Australia (despite the fact that the subject of the adoption is an adult) and must supply supporting information to the Court to satisfy the legislative requirements of the Adoption Act. Under the Adoption Act the consent of the adult child and the adult child’s biological parents must be formally obtained by Adoptive Services and recorded in writing before the application can be granted.

WHAT HAPPENS IF SOMEONE DOESN’T CONSENT? As you can imagine there are situations when a biological parent does not consent to the adult adoptee child being adopted

FEATURE

by the person making the application to adopt them. Understandably it is not an easy decision to make to consent to giving up a legal parental connection with your biological child. However, in most cases any real connection between the biological parent and the adult child seeking to be adopted has been lost many years before the legal proceedings take place. The reluctance of a biological parent to provide consent to the court for the adoption of their adult child places the court in a difficult position as the court does not, without significant care and consideration, seek to sever the legal relationship between a biological parent and their child. Nevertheless, ultimately the object and guiding principles of the Adoption Act are “to emphasise that the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration in adoption law and practice”. The best interests of the child must take into account the child’s wishes and it is difficult to see how, in the face of clear and reasonable wishes by an adult child

eCon

to be adopted by someone who has acted in the stead of their biological parent, a court would not allow the adoption. The legislation does allow the court to dispense with the consent of a biological parent however it is not something that is done lightly.

HAS THE INTRODUCTION OF ADULT ADOPTION IN SOUTH AUSTRALIA BEEN A SUCCESS? Having practised in this area, it is my view that the introduction of adult adoption in South Australia has been a success. I understand that there have been a number of applications granted by the Youth Court over the last two years since the legislation has been in place. Having said this, it is my view that the legislation has been amended possibly without due consideration for the impact that the changes would have or should have on the legislative process. For example, one might question why an adult child wanting to be adopted by someone who has fulfilled the role of a parent should need to go through the

formal process of Adoptive Services obtaining their written consent when they could present at Court and directly inform the Court of their consent to the application. Obviously, such requirements are necessary when we are talking about the adoption of minor children (those under the age of 18 years). However, it does not appear necessary for someone who is an adult and who shows that they have given proper and due consideration to the nature and legal consequences of the application. I am pleased to see applicants and the Court coming to terms with the new legislation and applications being granted for adult adoption. It has been some of the most rewarding work of my legal career to assist families to achieve the legal recognition of a significant parental relationship in a person’s life through this new process. I only hope that in the future the parliament may revisit the legislation once again and consider whether or not there could be some additional changes made such that the process may become simpler and clearer for adults wanting to achieve legal adoption. B

your South Australian based Settlement Agents

P A R T N E R S E L E C T R O N I C C O N V E Y A N C I N G S O L U T I O N S

0413 854 234

settlements@econpartners.com.au

office: 5 / 22 -28 Melbourne Street. North Adelaide SA 5006

Are you concerned about the impact of mandating of electronic settlements on your business? Looking to outsource your settlements? Looking to outsource your conveyancing? We offer fully flexible alternatives to support your business with all aspects of the conveyancing process.

Fully Insured Conveyancers Fully Licenced Conveyancers Full Trust Account facilities

Just

Ask

Sandy

FEATURE

The legality of forced sterilisation of women and girls with disabilities SARAH MCINNES, BACHELOR OF LAWS STUDENT, UNISA

he practice of forced sterilisation of women and girls with disabilities garners attention and discussion; particularly surrounding the legality of such an exercise. Despite a plethora of sanctions from the disability community, their allies and international bodies to condemn and criminalise forced sterilisation, this practice is still very much legal in Australia.1 While it is widely recognised that the practice of forced sterilisation is identified to be a form of violence and violates several human rights outlined in a multitude of United Nations Treaties and Conventions,2 there are still some existing justifications in favour of the procedure.3 These rationales are protected, and in many cases reinforced by the lack of legislative action by the Australian Government.4 This essay examines Australia’s compliance with their international obligations surrounding this issue, Australia’s current legislative

24 THE BULLETIN December 2020

framework and the reasoning’s being used to justify this form of violence.

OVERVIEW The definition of ‘sterilisation’ is outlined by Women With Disabilities Australia (WWDA) as ‘the performance of a medical procedure which permanently removes an individual’s ability to reproduce, and/or the administration of medication to suppress menstruation.’5 WWDA also defined ‘forced/involuntary sterilisation’ as ‘the performance of a procedure which results in sterilisation in the absence of the free and informed consent of the individual who undergoes the procedure.’6 This delineation includes situations where sterilisation has been authorised by a third party such as a parent, legal guardian, court, tribunal or judge.7 The Convention on the Rights of Persons with Disabilities 2008 (CRPD)

defines persons with disabilities as those who have ‘long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’8 Procedures with the result of sterilisation can vary from permanent or irreversible procedures like a hysterectomy, tubal litigation and endometrial ablation. They also include non-permanent contraceptive measures such as oral contraceptives, diaphragms, intrauterine devices and long active reversible contraceptives such as injections or implants.9 There may be occurrences in which disabled men and boys are victims of sterilisation, however, all sources state that this is clearly a gendered issue simply because sterilisation disproportionately affects women and girls.10

FEATURE

AUSTRALIA’S COMPLIANCE WITH INTERNATIONAL OBLIGATIONS As of 2005, United Nations treaty monitoring bodies have regularly and officially urged the Australian Government to authorise national legislation prohibiting, except in serious circumstances, the use of sterilisation on girls regardless of whether they have a disability, and of adult women with disabilities in the absence of free and informed consent.11 By allowing this complete breach of international law to continue, consecutive Australian Governments have violated international law.12 The procedure of forced sterilisation breaches every international human rights treaty that Australia is a party to.13 Legally permitting forced sterilisation directly associates the Australian Government to the commission of torture against these vulnerable individuals.14 The particular international treaties breached include; the CRPD, with special attention on articles 12 and 16 respectively, the Convention on the Rights of the Child (“CRC”), 15 the Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW), 16 the International Covenant on Civil and Political Rights (ICCP)17 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).18 Australia became one of the first signatories to the CRPD when ratified in July 2008 and the Optional Protocol in 2009.19 Its ultimate objective is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.’20 Notably, after entering into the treaty, the Australian Government consolidated their position that the CRPD did include the sanctioning for alternative decision making and compulsory medical treatment.21 It should also be noted that while the CRPD (the committee) has the ability to make recommendations which the Australian Government should take certain actions,

the CRPD is not binding in nature, as the power lays with the Australian Government to enact legislation to uphold their international obligations.22

ARTICLE 12 EQUAL RECOGNITION BEFORE THE LAW According to Article 12, ‘persons with disabilities have the right to recognition everywhere as persons before the law’,23 this includes recognising that persons with disabilities ‘enjoy legal capacity on an equal basis with others in all aspects of life.’24 States party to the convention are required to take ‘appropriate measures to provide access for persons with disabilities to the support they may require to exercise their legal capacity,’ while ensuring that effective safeguards are implemented in all measures relating to the exercise of legal capacity to prevent abuse of human rights.25 People With Disabilities Australia dispute that the application of article 12 requires ‘establishing supported decision-making alternatives to substituted decision-making regimes [and] effective safeguards to be introduced in relation to supported decision-making arrangements to prevent abuse in accordance with international human rights law.’26 Therefore, by allowing substituted decision-making regimes to continue, specifically those outlined in the Guardianship and Administration Act 1993 (SA)27 or at common law relating to the sterilisation of girls with disabilities, Australia is in breach of their international obligations as stated in Article 12 of the CRPD.28

ARTICLE 16 FREEDOM FROM EXPLOITATION, VIOLENCE AND ABUSE Article 16 requires States ‘take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse, including their gender-based aspects.’29 It obliges States to provide information, education, assistance and support for persons with disabilities and

their families on how to avoid, recognise and report instances of exploitation, violence and abuse.30 States are ordered to enact effective policies and legislation, inclusive of those focused on the protection of women and children, to ensure the occurrences of exploitation, violence and abuse against persons with disabilities are ‘identified, investigated and, where appropriate, prosecuted.’31 As forced sterilisation is identified as a form of violence, and Article 16 requires States to protect individuals from such practices which constitute violence, it is evident that under the CRPD, Australia is again in breach of their international obligations.32

AUSTRALIA’S CURRENT LEGISLATIVE FRAMEWORK In order for Australia’s international obligations to take effect, they must be brought into domestic law; through federal, state and territory legislation.33 As there is no federal legislation governing the issue of forced sterilisation of women and girls with disabilities, there are many discrepancies between states and territories regarding the court processes and legislation.34 Marion’s Case 1992 Although there is currently no federal legislation to govern the issue of forced sterilisation, the High Court decision now referred to as Marion’s Case is the leading precedent utilised on the subject.35 In 1992 an application was made to the High Court on appeal from the Family Court by the parents of a teenage girl with an intellectual disability.36 The application was for a ‘non-therapeutic’ surgical sterilisation to control the girl’s menstruation and avoid pregnancy.37 In their findings, the High Court concluded that essential questions of human rights including the right to reproduce should be decided by courts instead of parents, carers or medical practitioners.38 Instead, parental power is limited to circumstances ‘where sterilisation is an incidental result of surgery performed to cure a disease or December 2020 THE BULLETIN

FEATURE

correct some malfunction.’39 At the time, this decision was seen as a significant step in the right direction regarding the rights of persons with disabilities, however, future judicial decisions and social practices have consistently failed to put into practice the findings of Marion’s Case.40 Despite the seemingly noteworthy progress, these failures can be seen during the proceedings of Marion’s own case. Marion was quickly deemed ‘legally incapable’ and nobody attempted to understand what her wishes were. Unfortunately, this is a common trend amongst cases of sterilisation, and there has been very little deliberation in the judgements of such decisions in comparison to decisions in cases that relate to the sterilisation of non-disabled children.41 In all Australian states and territories, they are required to obtain authorisation of either the Family Court of Australia or a state or territory guardianship tribunal, governed by the relevant act, before a child or adult with a disability can be involuntarily sterilised.42 The Australian Guardianship and Administrative Council published a Protocol for Special Medical Procedures (Sterilisation) with the aim of promoting consistency between the Australian jurisdictions when exercising power over the issue in 2009.43 The protocol outlines in Phase 2 that tribunals should adopt a two-stage inquiry process.44 First, the tribunal must consider whether an individual has the mental capacity to consent to sterilisation, however, even though the protocol requires tribunals to consider capacity as a ‘threshold question’ it does not forbid tribunals from hearing a case where the individual does have capacity.45 Secondly, before the procedure is authorised, the tribunal must consider whether sterilisation is necessary, including whether all other avenues have been explored and rejected.46 However, in their 2013 submission to the Senate Inquiry on ‘forced sterilisation’, the Australian Human Rights Commission reported their growing concerns that the current legal and regulatory frameworks built on the notion of court or tribunal authority had failed to protect women and girls with disabilities from forced or coerced sterilisation.47 They articulate that the system of court or tribunal authorisation has not prevented women

26 THE BULLETIN December 2020

and girls with disabilities from being involuntarily sterilised, either with or without court appointed authorisation.48 This has lead WWDA to ponder whether the ‘best interests’ of the child is judged according to human rights principles or whether it is the ‘best compromise between the competing interests of parents, carers, service providers and policy makers’.49 South Australia The South Australian Government has minimal accessible information on the issue of forced sterilisation in comparison to other Australian states and territories. The Guardianship and Administration Act 1993 is the governing legislation, and articulates the Tribunal will not approve the procedure without certain criteria being met.50 This Act’s purpose is ‘to provide for the guardianship of persons unable to look after their own health, safety or welfare or to manage their own affairs and for the management of the estates of such persons; and for other purposes.’51 Part 5 outlines ‘consent to prescribe medical treatment of mentally incapacitated persons’, specifically section 61 which articulates the laws surrounding substituted decision making regimes in South Australia.52 The use of substituted decision-making regimes is inconsistent with Article 12 of the CRPD and therefore puts the South Australian Government in breach of international obligations.

RATIONALES SUPPORTING FORCED STERILISATION WWDA categorises the leading reasons for the sterilisation of women and girls with disabilities into four extensive groupings: the eugenics argument, the good of the state, community or family argument, the incapacity for parenthood argument and, the prevention of sexual abuse argument.53 Each of these reasonings are deeply engrained in the medical model of disability.54 Currently, the medical model considers disability as a ‘tragic defect or disorder and causes dependence on others’,55 the focus is placed on ‘diagnosis and treatment of what are seen as cognitive and adaptive defects, measured against norms of intelligence and independent functioning’.56

Eugenics Argument This argument is centred around the misplaced fear that women with disabilities will produce children with undesirable genetic ‘defects’.57 Currently, this is demonstrated under the guise of ‘best interests’, distancing itself from any connection to the Nazi era of genetic cleansing.58 Historically, this justification was utilised with the aim to stop ‘nonproductive members of society from reproducing for the “benefit” of the rest of society’.59 Whilst this rationale has been eliminated from the legislation of most countries, fragments may still be seen in the attitudes of some areas of the national community.60 This justification can be seen in the recent case of BH v CCH [2004]61 where the Family Court authorised the sterilisation of a 12-year-old girl with an intellectual disability and Tuberous Sclerosis (“TS”). Whilst there was only a 50% chance that her child would be born with TS, the court still ruled for sterilising her, even though one in two people born with TS lead normal lives.62 Good of the State, Community or Family Argument This rationale concentrates on the ‘burden’ women and girls with disabilities and any potentially disabled children places on ‘resources and services provided by the state and community’.63 This includes the burden of ‘menstruation and contraception management’ set on families and carers due to ‘conditions’ such as challenging or unmanageable behaviour and hygiene issues.64 This reasoning can be seen in several court proceedings where the sterilisation of a young girl has been authorised on the basis of menstruation management, or, shockingly, even before the individual has begun menstruating.65 This is shown in the case of Re Angela [2010]66 where the Family Court authorised the hysterectomy of an 11-year-old with Rett Syndrome to prevent menstruation.67 It is argued sterilisation is often less costly, faster and easier than providing programmes and support services to educate girls and women and with disabilities to understand information about their bodies, sex, safety, rights and relationships.68 When parents and carers are given the necessary support and resources, this justification of menstrual management loses all standing.69

FEATURE

Incapacity for Parenthood Argument This justification focuses on the contemporary misconception that women with disabilities, particularly intellectual disabilities, are unable to be good parents.70 This harmful philosophy stresses to prevent the pregnancy of women with disabilities, which can be seen in an account given by an anonymous South Australian woman submitted to the Senate Inquiry of 2013.71 She details the extremely traumatic experience of being forced to terminate her pregnancy at 22 weeks due to the pressure she received from doctors and psychologists at the hospital she was held at until she made the ‘right decision’.72 These women are often seen as ‘perpetually childlike, asexual or over-sexed and therefore would be inadequate parents’.73 In her submission to the Senate Inquiry, Australian comedian, journalist and disability rights activist Stella Young details her own experiences with this misconception after she was ‘laughed at when telling a doctor that she was sexually active.’74 In Australia, parents with a disability are up to ten times more likely to have a child in their care removed compared to a parent without a disability, carried out on the basis of the parents Endnotes 1 Elliot, (2017) 1. 2 Australian Human Rights Commission (2013). Submission No. 5 to Senate Community Affairs Reference Committee; Sydney: Australian Human Rights Commission 3 [6]. 3 Elliot, (2017) 8. 4 Ibid. 5 Frohmader, (2013) 22 [18]. 6 Ibid. 7 Elliot, (2017) 2. 8 Convention on the Rights of Persons with Disabilities. (2008) art 1. 9 Elliot, (2017) 2. 10 Frohmader, (2013) 19 [21]. 11 Ibid 55 [107]. 12 Ibid 55 [108]. 13 Ibid 8 [6]. 14 Ibid. 15 Convention on the Rights of the Child. (1990) 16 Convention on the Elimination of all Forms of Discrimination Against Women. (1981). 17 International Convention on Civil and Political Rights. (1976). 18 International Covenant on Economic, Social and Cultural Rights. (1976). 19 Australian Law Reform Commission (2013) [19]. 20 Frohmader, (2013) 56 [110]. 21 Elliot, (2017) 4. 22 Elliot, (2017) 4. 23 Convention on the Rights of Persons with Disabilities. (2008) art 12(1). 24 Ibid art 12(2).

disability as prime facie evidence rather than an incapacity to care for the child.75 Prevention of Sexual Abuse Argument This rationale is based on the assumption that women and girls with disabilities are more susceptible to sexual abuse, and as a result should be sterilised to prevent both the abuse and any potential unwanted outcomes.76 An example of this is the case of Re Katie (1995)77, where the girl's ‘attractive looks’ formed part of the Court’s reasoning’s for authorising her sterilisation at 16-yearsold as they made her ‘more of a target of sexual predators’.78 The contradictory character of this reasoning is immediately apparent; it is not utilised to prevent sexual abuse from occurring, but instead averting any possible consequences from the abuse, namely, pregnancy.79 Research conducted has exposed that rather than protecting vulnerable girls from sexual abuse, sterilisation actually increases the risk as there is no possible chance of pregnancy, especially for women with intellectual disabilities residing in psychiatric or other institutions.80 Under this rationale, sterilisation is utilised as a ‘Band-Aid’ solution which disproportionately puts the 25 26 27 28 29

Ibid art 12(3-4). People with Disabilities Australia. (2013). Guardianship and Administration Act 1993 (SA). Elliot, (2017) 5. Convention on the Rights of Persons with Disabilities. (2008) art 16. 30 Ibid art 16(2). 31 Ibid art 16(5). 32 Elliot, (2017) 5. 33 Ibid. 34 Ibid. 35 Ibid. 36 Frohmader, (2013) 21 [26]. 37 Ibid. 38 Ibid. 39 Secretary, Department of Health and Community Services v JMB and SMB (Marion’s Case) (1992) [253]. 40 Ibid. 41 Elliot, (2017) 6. 42 Australian Human Rights Commission. (2013) 10 [36]. 43 Ibid. 44 Protocol for Special Medical Procedures (Sterilisation) (Cth) (2009). 45 Elliot, (2017) 7. 46 Ibid. 47 Australian Human Rights Commission. (2013) 10 [37]. 48 Ibid. 49 Ibid. 50 Guardianship and Administration Act 1993 (SA) s 61. 51 Guardianship and Administration Act 1993 (SA).

responsibility on vulnerable young girls instead of taking appropriate action to fight sexual assault at its roots.81

CONCLUSION Forced sterilisation is a form of torture and breaches every human rights treaty to which Australia is a party to.82 Despite significant attention and discussion surrounding this issue, with their inaction, successive Australian Governments have remained apathetic and indifferent to this clear violation of the human rights of vulnerable women and girls. Research shows that the current ‘rationales’ used to defend this practice are misleading and unnecessary. Allowing violence against women and children with disabilities is unacceptable and cannot be allowed to continue here in Australia.83 It is evident that substantial legislative reform beginning with a national legislative scheme criminalising this behaviour is in order, to not only ensure Australia’s compliance with all international law, but also to guarantee the protection of the most vulnerable individuals within our community. B

52 Guardianship and Administration Act 1993 (SA) s 61. 53 Elliot, (2017) 8. 54 Ibid. 55 Parker, Malcolm. (2012) 512–27.  56 Ibid. 57 Elliot, (2017) 8. 58 Ibid. 59 Spicer, Cathy, (1999). 60 Frohmader, (2013) 25 [24]. 61 BH v CCH [2004] 62 Elliot, (2017) 8. 63 Frohmader, (2013) 38 [57]. 64 Elliot, (2017) 8. 65 Ibid. 66 Re Angela [2010]. 67 Elliot, (2017) 8. 68 Ibid 9. 69 Ibid. 70 Ibid. 71 Name withheld. 72 Name withheld. 73 Elliot, (2017) 9. 74 Young, Stella, (2013) 75 Elliot, (2017) 9. 76 Frohmader, (2013) 47 [82]. 77 Re Katie (1995). 78 Frohmader, (2013) 47 [83]. 79 Elliot, (2017) 10. 80 Ibid. 81 Ibid. 82 Frohmader, (2013) 96. 83 Elliot, (2017) 16.

December 2020 THE BULLETIN

CASE NOTE

Down with Mr Darcy: Hughes v Hill REBECCA SCARABOTTI, ASSOCIATE, LIPMAN KARAS

n a legal profession still reeling from the findings of the independent investigation into allegations of sexual harassment by the former High Court Chief Justice Heydon, the Queensland Full Court of the Federal Court recently delivered a searing judgment to uphold an award for significant general and aggravated damages for sexual harassment against a junior practitioner. The Appellant submitted that his behaviour had ‘strictly honourable’ intentions, which he submitted was akin to Mr Darcy in Pride and Prejudice. The Appeal Court took a dim view of the Appellant’s submission and determined that whether or not behaviour is sexual harassment is not an objective test, but a matter of fact.

FACTS The Respondent was a legal practitioner who, after separating from her husband, settled in regional New South Wales due to custody arrangements. This was an area where there were few legal jobs available. Shortly after her admission in 2015, the Respondent was employed by the Appellant. Whilst working for him, the Appellant acted for the Respondent during her divorce and accessed confidential information in his representation. From mid-2015, the Appellant began sending emails to the Respondent, inter alia, professing his love and proposing a romantic relationship. The Respondent repeatedly and clearly rejected these overtures. While the emails continued, the Appellant’s behaviour also escalated to include: (i) propositioning the Respondent on an overnight work trip where the Appellant entered her bedroom on two occasions wearing his underwear and towel; (ii) emails asking the Respondent to be his lover; and (ii) further physical incidents. In late-2015, the Respondent confronted the Appellant asking him to

28 THE BULLETIN December 2020

stop sending her personal emails and told him that the behaviour was harassment, however the emails continued and became increasingly abusive. The Respondent sought medical assistance from a psychologist and subsequently resigned in 2016.

FIRST INSTANCE DETERMINATION At first instance the Respondent was successful in obtaining $120,000 in general damages and $50,000 in aggravated damages for sexual harassment.1 In coming to this award, Vasta J: 1. rejected the Appellant’s contention that his intentions were honourable and did not constitute harassment;2 2. determined that the behaviour of the Appellant met the definition of Sexual Harassment, as defined in s 28A of the Sex Discrimination Act 1984 (Cth);3 and 3. applied s 46PO of the Australian Human Rights Commission Act 1986 (Cth) to award general and aggravated damages, the latter on the basis that (i) the Appellant made threats to prevent a complaint and (ii) the Appellant used confidential information obtained during the Respondent’s divorce during the trial.4

BASIS FOR APPEAL The appeal was crafted on three submissions: 1. the evidence did not support the conclusion that he had sexually harassed the Respondent because he was to be seen as being “like Mr Darcy in Pride and Prejudice”; 2. the award of $120,000 was manifestly excessive; and 3. there was no basis for the award of aggravated damages.

APPEAL DETERMINATION Perram J’s judgment, with Collier and Reeves JJ concurring, upheld the trial judge’s decision and indicated that had it had an opportunity to revisit damages, these may have been increased. The court took a dim view of the Appellant’s actions and the appeal itself (at [17]): “This appeal is devoid of merit and I would infer was pursued for the same purpose [to further harass the Respondent]. Some of the submissions were, in my opinion, insulting. It should not have been brought and, in my opinion, should be emphatically dismissed.” Ground 1: conduct was mere protestations of love The Appellant submitted that the trial judge had erred in concluding that his conduct towards the Respondent was sexual in nature. Perram J rejected this submission and affirmed the trial judge’s finding that the overall pursuit of the Respondent was sexual in nature and was not merely protestations of love.5 His Honour rejected the submission that these were “actions of a Mr Darcy” and that his Honour could not accept that the court “should infer that the Appellant only wished to be the Respondent’s ‘platonic’ lover”.6 In coming to this conclusion, his Honour found it unnecessary to consider the correctness of the Appellant’s contention that misguided but loftyminded romantic conduct cannot constitute sexual harassment, but noted that precedent suggests that declarations of love may on their own constitute sexual harassment.7 Ground 2: manifestly excessive damages The second ground of appeal involved five contentions, all of which Perran J found were without merit. 1. Contention 1 – the award of $120,000 in general damages was manifestly excessive and

CASE NOTE

outside the range which was open to the trial judge: rejected on the basis that the Appellant called no medical evidence, nor did he dispute the Respondent’s medical evidence that the Appellant’s behaviour had caused psychological harm. In finding that the damages was within the available awards, Perram J stated “What is the ruin of a person’s quality of life worth?... I do not see the beginnings of an argument that the damages were manifestly excessive” (at [47]-[48]). 2. Contention 2 – the trial judge had erred in law by failing to consider any authority prior to the decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (Oracle): rejected on the basis that Oracle substantially increased the general damages which could be awarded for sexual harassment and therefore assessments pre-dating this decision were not useful (at [49]). 3. Contention 3 – the trial judge’s emotive language: rejected on the basis that while the language

of the trial judge was strong, this reflected the “quality of the Appellant’s own behaviour” (at [50]). 4. Contention 4 and 5 – the trial judge had erred by taking into account the objects of the Sexual Discrimination Act 1984 (Cth) in assessing damages, and gave no reasons for his award of compensation: dismissed on the basis for the former statutory objects were relevant for causation, and the latter had no substance (at [52]-[53]). Ground 3: no basis for aggravated damages The Appellant submitted that the trial judge had blurred the distinction between aggravated damages (which he submitted remained compensatory), and punitive or exemplary damages. First it was submitted that this blurring resulted in the trial judge erring in his conclusion that the Appellant had acted in a manner that could support an award of aggravated damages. Perram J rejected that there was an error on the basis that the trial judge’s findings were clear (i.e. extracting in the judgment the Appellant’s attempts to prevent the proceedings by threats, and laying out the “despicable” conduct during the trial). Second it was submitted that even if the trial judge had been right to conclude, he had erred in concluding that this behaviour had increased the suffering of the Respondent. Perram J found that the Trial judge was correct to conclude that an award of aggravated damages was appropriate on the basis that the Respondent at first instance suffered psychological damage from the harassment, and then was caused further suffering when threatened and again when her confidential information was used in the proceedings (at [63]).

CONCLUSION The determination of the Full Court continues a move toward awarding substantial damages to targets of sexual harassment. In the rare cases where proceedings are commenced, often harassment can continue as a target of harassment persues damages. This judgment importantly acknowledges that threats against commencing proceedings and the manner in which a party conducts its case can enliven an award of aggravated damages. However, it should be acknowledged that the Appellant’s behaviour was a clear and extreme example of sexual harassment, with equally apparent psychological harm. Many cases will have imperfect targets, significant cultural bars to proceedings or other factors which create significant challenges to recompense. Strong condemnation by leaders in the profession, including the judiciary, is necessary and welcome, however legal profession has far to go to stamp out sexual harassment. B

Endnotes 1 Hill v Hughes [2019] FCCA 1267. 2 Ibid, at [133]-[143]. 3 At [168]ff, applying the test in Clarke v Nationwide News Pty Ltd [2012] FCA 307. At a high level, the test being that (i) there must be a sexual advance; (ii) that sexual advance must be unwelcome; (iii) there must be evidence of offence, humiliation or intimidation arising from the conduct; and (iv) the offender would have anticipated the possibility that there would be offence, humiliation or intimidation from the conduct. 4 At [254]ff. 5 At [39]. 6 At [40]. 7 His Honour cited Spencer v Dowling [1997] 2 VR 127 and Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81 in support of this statement at [41].

December 2020 THE BULLETIN

RISK WATCH

Calculating time limits—you need to know where to start GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

he calculation of when proceedings need to be commenced so as not to fall foul of time limitations is a well-known feature of litigation practice. In order to know when the relevant time limit ends though, you have to know when and where to begin—when does the limitation period start? In many cases the question of the relevant limitation period will not cause too many problems. In an action based on the tort of negligence in respect of injuries suffered in a motor vehicle accident, for example, the relevant time limit will be three years from the accrual of the cause of action, which will be incurring of the relevant loss or damage. In most cases this will be the date of the accident itself. There are some areas, however, where the starting point is not so obvious. A good example of this is an action to recover a loan repayable on demand. The answer to the question “When does the cause of action accrue and the time period start to run for such an action?” may be surprising to many practitioners. Many people will think that the cause of action accrues upon a demand for repayment being unmet, but this is not the case. Where a loan is repayable on demand, it is actually immediately due and there is no need for a demand for the cause of action to accrue (Young v Queensland Trustees Ltd [1956] 99 CLR 560 at 566). Further, if a loan agreement is silent about repayment it will be treated as repayable on demand, thereby creating an obligation on the borrower to repay immediately from the time that the funds are advanced (Ogilvie v Adams [1981] VR 1041 and Gleeson v Gleeson [2002] NSWSC 418). This position of course needs to be contrasted with the position where the loan documents express a time for repayment. If for example it is actually

30 THE BULLETIN December 2020

provided that the loan is not repayable until a demand is made—then the making of the demand will be a necessary prerequisite to the right to repayment and therefore the accrual of the cause of action (Haller v Ayre [2005] QCA 224). In the situation where no such stipulation is made and the loan is merely repayable “on demand” (as outlined above) the cause of action will commence to run when the funds are advanced. This means that actions for recovery of funds advanced more than six years prior to the commencement of the proceedings will be statute barred (s. 35 Limitation of Actions Act 1936 (SA).1 Another example of the importance of getting the correct “start date” and of the difficulties that can arise in this analysis, can be found in the recent Victorian Court of Appeal decision in Orwin v Rickards [2020] VSCA 225. The issue in this case was whether or not a cause of action against a solicitor for negligence in drafting a financial agreement providing for the division of assets between the parties to a de facto relationship was statue barred under the Victorian Limitation of Actions Act 1958. The solicitor, Mr Rickards, had drafted the financial agreement in question which was signed on 12 March, 2010. The parties to the agreement Ms Orwin and Mr Sarah, separated in 2011, and 2015 Mr Sarah made an application in the Federal Circuit Court seeking to set aside the financial agreement and an order for the just and equitable alteration of property interests. The agreement was found to be defective and was not therefore capable of constituting an answer to the application for property division sought by Mr Sarah. Ms Orwin settled Mr Sarah’s claim and then sought to recover from Mr Rickard

the amount paid to Mr Sarah, plus the fees she had paid to Mr Rickard to prepare the financial agreement. The proceedings against Mr Rickards were commenced on 19 July, 2017, i.e. more than six years after the execution of the agreement and the payment of Mr Rickard’s fees. Ms Orwin conceded that her claim for breach of contract was statue barred, no doubt because the proceedings had been commenced more than six years after the relevant breach. Unfortunately for Ms Orwin the Trial Judge found that the proceedings in negligence were also statue barred because they had been commenced more than six years after Ms Orwin had first suffered loss by reason of the negligence. It was found that the relevant losses were the payment of Mr Rickards’ fees and the failure to obtain an “asset” – being a properly drawn agreement - which would have given her protection in the future from claims made by Mr Sarah. Ms Orwin appealed on the basis that her losses did not occur until the de facto relationship ended and Mr Sarah made his claim for an alternation of property interests. She relied on the decision of Wardley v WA (1992) 175 CLR 514 where the High Court spoke of it being “unjust and unreasonable” to expect a plaintiff to commence proceedings before a contingency is fulfilled and that in that case it was “fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled”. In Orwin v Rickards both the trial Judge and the Court of Appeal in dismissing the appeal contrasted this situation with the situation where the Defendant’s negligence results in the plaintiff being provided with “damaged goods” – in this case a defective contract – where the loss is treated as having been suffered immediately.

RISK WATCH

This reasoning found favour in the New Zealand case of Burton v Thom [2009] NZLR 437 where the distinction between the “damaged goods” and the “contingent loss” approaches was discussed. The facts of the Burton v Thom case were very similar to the facts in Orwin v Rickards and the NZ Supreme Court found that it was a “damaged asset” case and not an “exposure to a contingent liability” case because the prenuptial agreement in the Burton case was created with an inherent flaw. Despite the fact that the Victorian Court of Appeal recognised that the classification of loss in the Orwin case was one of real difficulty, and said that they saw real force in the argument that the loss suffered by Ms Orwin (apart from the fee payment) was a contingent loss. They also said that it could properly be said that it would be unjust and unreasonable to

expect a person in Ms Orwin’s position to have commenced proceedings at a time when she had no reason to suspect that Mr Rickards had been negligent. This was precisely because nothing had occurred which meant that she had to rely on the agreement. The Court also said however that, on the facts the “damaged asset” analysis seemed particularly apt and that “either characterisation might properly have been adopted” [63]. In the end, they found that the trial Judge’s conclusion had a secure foundation in existing authority and rejected the challenge to the trial Judge’s findings. The Court of Appeal said that it was unsatisfactory that the same facts should be open to alternative legal characterisations in this way, when the choice of characterisation produces such dramatically different answers to the

limitation question, and that this degree of uncertainty in an important area of law is regrettable [64].2 The “bottom line” is – it may sometimes be very difficult to ascertain when your client’s cause of action accrues in order to give you the starting point for the time limitation period - so extra care needs to be taken. B

Endnotes 1 An acknowledgement of the debt, or part payment may however have the effect of “restarting” the limitation period from the time of the acknowledgment or part payment. 2 The Court of Appeal all but flagged that this was an issue that should be resolved by the High Court but it is unlikely that Orwin v Rickards itself would be a suitable vehicle because of the other issues in the case which were sufficient to resolve it.

December 2020 THE BULLETIN Arts South Australia

TAX FILES

Storage land an active asset BRIONY HUTCHENS, DW FOX TUCKER LAWYERS

he decision of the Full Federal Court in FCT v Eichmann [2019] FCA 21551 provides an interesting contrast in statutory interpretation to the original decision of the Federal Court.2 The facts of the case were relatively simple. Mr Eichmann and his spouse controlled the trustee of the trust that carried on a business in building, bricklaying and paving. Mr Eichmann and his spouse personally owned a property adjacent to their home on which there were two sheds, a high block wall and a gate to secure the property. They used the property to store tools, equipment and materials including bricks, blocks, pavers, mixers, wheelbarrows, drums, scaffolding and iron. From time to time work vehicles and trailers were parked on the property. Tools and other items were collected and returned to the property daily and in some cases the property was visited a number of times a day in between jobs. Some preparatory work was also occasionally undertaken on the property. There was no business signage on the property. The property was sold, and

32 THE BULLETIN December 2020

Mr Eichmann applied for a private ruling from the Commissioner of Taxation concerning the application of the small business CGT concessions to the sale of the property seeking to confirm the availability of the concession applicable to active assets. While not specifically stated in the facts, it appears that the property was sold independently of the business. That is, the land was not sold as part of the sale of the business. Instead the business continued to be carried on by the trust, albeit without the use of this land. The Commissioner ruled that the concession was not available because the definition of active asset required that the asset be used, or held ready for use, in the course of carrying on a business. Mr Eichmann objected to that ruling but the objection was rejected by the Commissioner. Mr Eichmann then sought review of the objection decision in the Administrative Appeals Tribunal, who upheld the appeal on the basis that the business use of the property was not trivial or insignificant, but rather was “undoubtedly … for the purpose

of operating the business”, and that was sufficient for it to be used “in the course of carrying on a business.”3 The Commissioner appealed to the Federal Court where Derrington J found that the statutory test4 required that for an asset to be used “in the course of carrying on a business” it must have a direct functional relevance to the carrying on of the normal day to day activities of the business and be a constituent part or component of those activities. It was not sufficient, on this interpretation, that the use of the asset had some connection with the business. Instead, it was necessary that the use of the asset be “integral” to the business activities. As the business activities were mainly undertaken on work sites where services were provided, not on the land in question, it was decided by the Court that the use of the land did not have a direct functional relevance to the carrying on of the building, bricklaying and paving business. Mr Eichmann appealed to the Full Federal Court which allowed his appeal. In making its decision, the Full Federal

TAX FILES

Court considered that Division 152 of the ITAA 1997, including s152-40, should be construed beneficially and not restrictively in order to promote the purpose of the concessions in the Division. The approach taken by the Full Court was that it was necessary to firstly, determine the particular use of the asset, secondly, determine the course of the carrying on of the business and thirdly, see whether the asset was used in the course of carrying on that business. Specifically, the Court said, “These inquiries involve issues of fact and degree. But because s. 152-40 should be construed beneficially, no narrow approach to the consideration of these issues should be applied. We also observe that, for these purposes, the legislature has not used language which might confine these inquiries. It has not, although it could have, referred to the “ordinary” course of a business or to the “day to day” course of a business; it has not used the words “direct” or “integral” to qualify the word “in”. It is sufficient if the asset is used at some point in the course of the carrying on of an identified business.” In contrast to the Federal Court Judge

at first instance, the Full Court held it incorrect to read into Section 152-40 and the inference requiring there to be a very close, direct or integral connection between the use of the asset and the carrying on of a business. This section was held not to require the use of the relevant asset to take place within the day to day or normal course of the carrying on of the business, as this narrow interpretation of the provisions was not supported by the language of the provision and was inconsistent with the need to construe its language beneficially. The Full Court went further to say that even if its construction of Section 152-40 was incorrect and the previous construction preferred, it would still, “characterise the use of the appellant’s property as bearing a ‘direct functional relevance to the carrying on of the normal day to day activities’ of the business here”. In serving the function of being a necessary place for storage of plant and equipment of the business, the use of the land bore a direct relationship to the activities of the business. While on the facts of the case the position taken by the Commissioner and

Derrington J would appear particularly restrictive and, in broad view, the taxpayer is reasonably entitled to the benefit of Section 152-40 as found by the Full Court, what is particularly interesting is the broader decree of the Full Court that the provisions such as in Division 152 of ITAA 1997 should be construed beneficially and that no narrow approach to the consideration or the issues concerning them should be applied. There are various sets of relieving provisions within the Income Tax Assessment Acts where the possibility of such an approach could prove significant. B Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia

Endnotes 1 Justices McKerracher, Steward and Stewart 2 FCT v Eichmann [2019] FCA 2155 per Derrington J on appeal from the Administrative Appeals Tribunal 3 Eichmann v FCT [2019] AATA 16 4 Section 152-40 of the Income Tax Assessment Act 1997 (ITAA 1997)

We Are Forensic Experts In • Engineering Analysis & Reconstruction

• Failure Analysis & Safety Solutions

• Traffic Crashes & Road Safety

• Physical, Crash, Incident & Vehicle Dynamic Handling Testing

• Workplace or Mining Incidents • Reporting & Experts Court Testimony

Delta V Experts

DELTA-V EXPERTS

• Clarifies the facts in a situation

• Strengthens your communication

• Scientifically substantiates the evidence

• Diverse experience and expertise

03 9481 2200

www.dvexperts.net

9 Springbank Street, Tullamarine, 3043 December 2020 THE BULLETIN

FAMILY LAW

Family Law Case Notes KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – TREATMENT OF DEED OF GIFT – MAJORITY OF HIGH COURT REAFFIRMS WIDE DISCRETION OF TRIAL JUDGE

n Hsiao v Fazarri [2020] HCA 35 (14 October, 2020) the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) upheld the Full Court’s dismissal of a wife’s appeal against property orders. The parties’ relationship began in August, 2012. In 2014 the husband bought a property and gifted the wife a 10 per cent interest in it. In December, 2014, the husband, under pressure from the wife, signed a transfer of land giving the wife a further 40 per cent interest. The parties executed a deed of gift (“the deed”) which provided for the husband to pay a sum to the wife’s siblings in the event that she predeceased him while they remained joint tenants. The deed also provided that the payment should be taken into account if the parties separated or divorced ([21]). The parties married in August, 2016. The marriage lasted 23 days. Each party subsequently sought property adjustment orders. The wife did not appear at the hearing. Cronin J severed the joint tenancy and ordered the wife to transfer her interest in the property to the husband in exchange for $100,000, finding that the husband’s transfer was not a gift ([36]). The majority said ([53]): “His Honour is not to be taken to task for not making a close examination of the facts to determine whether the transfer of the 40 per cent interest was voidable by reason of vitiating factors… His Honour made no such finding. (…) The trial was the place to adduce such evidence and put such arguments as might favour a different finding as to the parties’ respective financial contributions…The trial was not some preliminary skirmish which the appellant was at liberty to choose not to participate in

34 THE BULLETIN December 2020

without consequence. Her right of appeal was a right to have the Full Court review whether the primary judge’s discretion … miscarried … It was not an opportunity for the appellant to make a case that she chose not to make at the trial. The Court is invested with a wide discretion… to make such order as it considers appropriate. … ”

APPEAL – CONSENT ORDERS CANNOT BE APPEALED ON THE MERITS – FATHER SOUGHT TO WITHDRAW HIS CONSENT In Melville (No. 3) [2020] FamCAFC 231 (18 September, 2020) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, dismissed with costs a father’s appeal from final orders made by consent on the sixth day of trial. The Court said (from [12]): “(… In Robinson & Willis [[1982] FamCA 16] Fogarty J observed: ‘ … [A]s a consent order is made as a consequence of the consent of the parties to the Court making that order and not of an adjudication by the Court, the order may not be challenged by an appeal which is directed to the correctness of that order … it cannot be appealed against on the merits. … ’ [33]… [T]he application of pressure upon a client to compromise litigation is recognised as a necessary and proper part of the function of legal representatives (…). [34] … [I]f a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client, then the client’s proper remedy lies elsewhere ( … ).” As to the father’s argument that he withdrew his consent by email to the Judge’s chambers after the orders were made but before they were entered, the Court said (from [71]): [71] (…)It would defy common sense and the practical realities of the demands

upon the already over-burdened FCC … to impose some additional requirement upon its Judges to monitor, after orders are made in Court, the potential operation of r 16.05(1) of the FCC Rules by reference to, not an application filed, but to informal communications that might be received … pending the entry of orders in the normal course. (…)”

CHILDREN – MEDICAL PROCEDURES – GENDER DYSPHORIA – ADOLESCENT FOUND TO BE GILLICK COMPETENT In Re: Imogen (No. 6) [2020] FamCA 761 (10 September, 2020) Watts J granted a father’s application for the court to authorise the commencement of stage 2 hormone treatment for his 16 year old daughter Imogen ([6]). The mother disputed the diagnosis by Imogen’s doctors that she was Gillick competent and opposed hormone therapy. The Court said (from [35]): “ … a) If a parent or a medical practitioner of an adolescent disputes: The Gillick competence of an adolescent; or A diagnosis of gender dysphoria; or Proposed treatment for gender dysphoria, an application to this Court is mandatory; b) …[O]nce an application is made, the court should make a finding about Gillick competence of an adolescent. If the only dispute is as to Gillick competence, the court should determine that dispute by way of a declaration, pursuant to s 34(1) of the Act … ; c) Notwithstanding a finding of Gillick competence, if there is a dispute about diagnosis or treatment, the court should: Determine the diagnosis; Determine whether treatment is appropriate … ; and Make an order authorising or not

FAMILY LAW

authorising treatment pursuant to s 67ZC of the Act … ; d) If a parent or … guardian does not consent to an adolescent’s treatment for gender dysphoria, a medical practitioner … should not administer treatment to an adolescent … without court authorisation. (…) [38] In circumstances where there is a dispute about diagnosis, consent or the nature of treatment, an application to the court is mandatory (see Re Jamie [2013] FamCAFC 110 (‘Re Jamie’)(…). [59] In this case, there is dispute about treatment and the form it should take. Whilst … what was said in Re Jamie was strictly obiter dicta, it was well considered … I conclude that I should follow the conclusions of Bryant CJ in Re Jamie …, in respect of the approach to be taken when treatment is disputed. Given there is a dispute about what form treatment should take, this court should determine that dispute pursuant to s 67ZC …. [T] he court should have regard to the best interests of the child as the paramount consideration and give significant weight to Imogen’s views ….”

CHILDREN – RISK ASSESSMENT AT INTERIM HEARING – MOTHER COULD NOT COPE WITH COST OF PROFESSIONAL SUPERVISION

MEMBERS ON THE MOVE

In Canfeld & Falkins [2020] FCCA 2570 (9 September, 2020) Judge Altobelli heard a parenting case in which a primary issue was the choice of supervisor for the mother’s time with the children. The three children of the relationship (aged 16, 11 and 8) lived with the father and spent time with their mother on a supervised basis. The mother sought that her time be supervised by “Mr L”. The independent children’s lawyer (ICL) supported this position. The father sought a professional supervisor. The Court said (from [20]): “(…) ‘[67] In Deiter & Deiter [2011] FamCAFC 82, … the Full Court suggested that s 60K (now s 67ZBB) … signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. (…) [70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However,

that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.’” The Court continued (from [23]): “For present purposes the real issue is under what circumstances should the children spend time with their mother. From the Court’s perspective, a way of looking at this issue is to ask this question: what risk of harm to the children cannot be addressed by supervision by Mr L that could be addressed by supervision by a professional supervised contact service? (…) [31] In terms of supervised time … there are practical issues that cannot be ignored. The Court accepts the mother’s case that continuing to pay for private professional supervision is not sustainable. The Court appreciates that private nonprofessional supervision such as Mr L means that there is no professional objective person and no written report. (…) It is ultimately a balancing exercise and one which the Court believes can be achieved by using Mr L.” The Court made orders for the mother to spend time with the children, supervised by Mr L. B

C MARK HENDERSON

ommercial & Legal are delighted to announce the recent appointment of Mark Henderson, Partner, to its Property & Projects team. Mark joins the Commercial & Legal team with more than 15 years’ prior experience in property and general commercial law at some prominent SA law firms and the UK. Mark’s experience will not only add to the strength and depth of the firms Property and Projects practice, but will provide a higher level of support to Principal Partner, Elias Farah and his team. December 2020 THE BULLETIN

FEATURE

How efficient and just is the process for contempt for disobedience of a judgment? LAUREN FLETCHER, HONOURS STUDENT, ADELAIDE LAW SCHOOL

fter failing to resolve your dispute through any number of alternative dispute resolution attempts, multiple interlocutory hearings, and a trial, you have finally got it: a judgment or order in your favour. And then someone breaches it. You would want that person to comply with the judgment or order with minimal time and expense on your part — that would be just and efficient for you. However, there are other interests involved. Civil contempt comes in many forms, but I will only look at disobedience of a judgment or order made in civil proceedings.1 Contempt is the process by which the court coerces a person to comply with a judgment or order and/or to remedy a breach.2 Two of the objects of the Uniform Civil Rules 2020 (‘UCR’) are justice and efficiency.3 Is the current civil contempt process in the Supreme Court of South Australia just and efficient? If justice and efficiency are at odds, or if justice and efficiency mean different things to different people, is the Court’s balancing correct? Four aspects of the civil contempt process will be examined through the lens of justice and efficiency: the quasi-criminal nature of the proceedings; the two-stage process; the applicant’s ability to waive the proceedings; and the judge’s discretion to dispense with the service requirements. Some aspects of the process promote both justice and efficiency for everyone involved. However, this is not always the case. Due to the quasi-criminal nature and the seriousness of civil contempt, when the two objectives or different interests are in conflict, I believe justice for the accused should be the primary interest considered when determining what the rules should be.

THE LEGAL FRAMEWORK The UCR set out the process for all civil contempts.4 Once a judgment or order takes effect, a person who has notice of it but does not comply will be in contempt of court.5 Contempt proceedings can only commence if the person allegedly

36 THE BULLETIN December 2020

in contempt (the accused)6 was served the judgment or order personally.7 Civil contempt initiated by a party is a twostage process. First, the party attempting to enforce the judgment or order (the applicant) must file an interlocutory application setting out the details of the alleged contempt.8 The Court will charge the accused with contempt if it ‘is satisfied that there are reasonable grounds to suspect that the accused committed the alleged contempt’.9 This threshold is said to be met if the evidence provided, if accepted, would prove the contempt.10 The second stage is either an admission of guilt or a hearing.11 Civil contempt must be proved beyond reasonable doubt.12 If the accused admitted guilt or is found guilty, then the Court will hear submissions as to penalty.13 The Court may issue a fine,14 a term of imprisonment,15 or may suspend a penalty contingent on an undertaking.16 Neither the fine nor prison sentence are subject to an upper limit.17 The process in the Supreme Court Civil Rules 2006 (SCCR 2006)18 and the Supreme Court Civil Rules 198719 are the same for the issues discussed here unless otherwise indicated. While justice and efficiency are both objects of the UCR,20 they were framed as opposing objectives in the SCCR 2006.21 While the two can certainly be in opposition, I agree with the new rules that they are not inherently in conflict. This is reflected by the maxim ‘justice delayed is justice denied’.22 But, when these issues do come into conflict, whose interests should be weighed?

A PRIVATE MATTER? Both the applicant and the accused have an interest in contempt proceedings being conducted in a just manner: the applicant wants the judgment or order that was made in their favour enforced, and the accused wants their defence to the charge heard. Whatever the result, both sides also want the process to be efficient. However, should public interest

also be a factor? There are two categories of contempt: criminal and civil. One of the main points of distinction between the two is the public/private divide. Criminal contempt is brought for the benefit of the public to ensure the proper administration of justice.23 Conversely, the focus of civil contempt is private, ensuring that a party can have a judgment or order enforced for their benefit.24 However, civil contempt still affirms and defends the court’s authority and so the public still may have an interest.25 Ensuring the proper administration of justice and maintaining the court’s authority are factors that are considered in many civil contempt cases.26 Further, the notion of civil contempt as a private matter is even stranger considering the Director of Public Prosecutions (DPP) has the power to commence civil contempt proceedings.27 The DPP was given this power as part of their responsibility to maintain the administration of justice.28 These factors inexorably lead to the conclusion that civil contempt is, at least partially, an issue of public concern. Hence, when analysing whether a process is just and efficient, the public’s interests may also have to be considered.

QUASI-CRIMINAL Civil contempt has long been considered quasi-criminal.29 Over time, this label has become more apt since many of the old distinctions between criminal and civil contempt, such as a punitive versus coercive purpose,30 have become less clear and have been criticised.31 The civil contempt process reflects that hybrid classification. The principle in Dietrich v The Queen, that if the accused cannot afford a lawyer a judge should grant an adjournment, postponement, or stay until legal representation is available,32 does not apply to civil contempt cases.33 Evidence can be given by oral testimony and the tender of documents, but it is primarily given by affidavit.34 The rules of evidence apply, but they can be waived by the

FEATURE

accused.35 This system is quite efficient, as many of the hallmarks of a criminal trial are burdensome. However, that burden has been imposed for a reason: to ensure justice is done. It is strange that many of the safeguards of the criminal system are removed from civil contempt proceedings considering that it can carry such severe penalties.36 This system is just and efficient for the applicant, since it reduces the amount of time and money needed to bring a case for contempt, but the benefit and the curse of civil contempt is how serious it is. In a civil matter, the stakes are lower, and so suing a person who does not have legal representation is acceptable. However, since the Court can imprison the accused and issue unlimited fines, I believe that justice for the accused should win firmly over justice and efficiency for the applicant. But, these streamlined processes are not necessarily unjust. Some accused may weigh efficiency over justice while others may believe the streamlined process is just. Hence, the principle in Dietrich v The Queen should apply to civil contempt proceedings, but the accused can choose not to exercise that right. The accused should be able to choose whether or not evidence can be given by affidavit and should retain the right to waive the rules of evidence. Civil contempt proceedings should be efficient, but they should not force the accused to give up the hallmarks of criminal justice.

TWO-STAGE PROCESS The two-stage process in civil contempt can in no way, shape, or form be considered efficient. The most recent contempt proceedings in the Supreme Court were the Maxilift cases:37 the breaches of the order occurred between January and June 2018;38 the applicant filed the interlocutory application on 19 November, 2018;39 Justice Nicholson charged the accused with contempt on 5 July, 2019,40 the accused pled guilty and was issued a fine on 28 January, 2020.41 The Temple cases provide an even more extreme demonstration of the process, with multiple defendants breaching different orders with a total of six cases.42 The first application was made on 1 June, 1998,43 and the last judgment was handed down on 1 February, 2001.44 In both, the time between the first application and the penalty being imposed was at least a year. The length of the civil contempt process

shows how unjust and inefficient this system is for the applicant, especially if the time taken to get the judgment or order in the first place is considered as well. However, this is another case where efficiency clashes with justice. The first stage mirrors committal proceedings for criminal cases,45 and acts as a safeguard for justice for the accused. Since civil contempt does not have a police prosecutor or the DPP deciding whether to pursue a case, this safeguard is crucial. Contempt is a serious charge and the first stage can prevent frivolous claims. In Lauro v Minter Ellison Lawyers [No 2],46 Lauro accused Minter Ellison of contempt. Justice Hinton dismissed the application at the first stage on the basis that there was no evidence that Minter Ellison was in contempt of Court.47 Lauro appeared to have made the accusation incidentally to ‘separate but loosely connected proceedings’ and attempted to place the onus of investigation on the Court.48 It would hardly seem fair for Minster Ellison to be accused of a very serious offence that would have almost certainly failed because someone made an accusation seemingly on a whim. While this is the only South Australian case where the first stage failed due to the applicant not satisfying the threshold, I do not think that means this issue should be dismissed. Civil contempt cases are not very common, and the first stage could prevent some applicants from commencing a frivolous or vexatious claim in the first place, which further supports justice and efficiency. The gravity of the consequences and charge of contempt mean the accused’s interest in justice should take precedence. Lastly, the length of proceedings is an issue for all civil cases. There is nothing so unique about civil contempt to require modification to the court’s usual prioritisation of justice and ensuring all parties have their say over faster proceedings. As there is no external organisation to determine whether a charge of civil contempt should be brought and since civil contempt is so serious, the inefficient two-stage process should remain to ensure justice for the accused.

WAIVER The applicant may waive proceedings for civil, but not criminal, contempt.49 If civil contempt is a private remedy, then the applicant should have this right. It would not be just or efficient to continue

the process if the only person who would benefit from it no longer wants that benefit. It is analogous to how it is clearly just and efficient to allow a person to waive proceedings for any other private issue, like breach of contract or negligence. However, as argued above, civil contempt is partially public in nature. The right to waive conflicts with the public’s interest in ensuring the administration of justice; if maintaining the integrity of the court requires that its judgment or order be obeyed, then it should not matter whether or not the applicant wants it enforced.50 It is comparable to criminal proceedings going ahead even if the victim no longer wants the accused punished.51 Waiver would be just and efficient for the accused, regardless of its classification or category. The Law Reform Commission of Western Australia advocates for the abolition of waiver for civil contempt and instead argues that ‘waiver’ by the applicant should be a sentencing consideration like it is in other criminal prosecutions.52 Since civil contempt is only partially public, the interests of the applicant and the accused should not be curtailed to that extent. In the spirit of civil contempt’s quasi-criminal nature, I believe a fusion of criminal and civil waiver would be the most just and efficient. The applicant should have the right to waive proceedings. However, if it would be significantly against the public’s interest in maintaining the administration of justice for the proceedings to be waived, such as if the accused has previously been found guilty of contempt, then the Court should have the discretion to not allow the waiver. The interests of the applicant and the accused, as the parties directly involved in civil contempt, should be given primacy. However, if the public interest is strong enough, it may be necessary to prioritise their interest in justice.

SERVICE Before contempt proceedings can commence, the judgment or order must be properly served.53 It is hardly just to punish a person for failing to comply with a judgment or order if they were not aware of it. However, the court has the discretion to dispense with this requirement as part of its general power to make orders in the interest of justice.54 There have been two South Australian cases where the applicant has sought to December 2020 THE BULLETIN

FEATURE

begin the civil contempt process without complying with the rules for service. In deciding whether to dispense with the service requirements, the primary factor the Court took into consideration was that the accused in both knew the judgment or order and its contents, even without being properly served. In Animal Liberation, a spokesperson for the accused told the Court in an affidavit that they were declining to comply with the order.55 In Zhao, the judgment was served on the accused’s solicitors,56 and the accused had sworn several affidavits in relation to the order.57 These decisions are clearly efficient — it would be a waste of time and money if the applicant had to restart contempt proceedings after serving the judgment or order properly when the accused was already aware. The Court currently requires a very high level of proof of the accused’s knowledge before it will exercise the discretion, which significantly reduces the chance that a person will be charged with contempt when they were actually unaware of the judgment or order. Maintaining this discretion as it stands is both just and efficient.

CONCLUSION Ensuring that the civil contempt process is just often goes hand in hand with making sure it is efficient, but sometimes those objectives are at odds. Since civil contempt is a quasi-criminal issue with serious ramifications, when the two objects come into conflict, justice for the accused should generally prevail, but that principle should not be applied rigidly. Therefore, the standard criminal procedural rights should apply to the civil contempt process unless the accused wants to waive them. The two-stage process should stay, even if it is very inefficient, to ensure the accused is not charged with contempt when it is not warranted. While the applicant’s right to waive proceedings should mostly stay the same, since it is just and efficient for both the applicant and the accused, the public’s interest should sometimes take precedence. The judge’s discretion to dispense with the service requirements if they have a very good reason to believe the accused knows about the judgment or order is both just and efficient, and so it should be retained. Creating a civil contempt process that is

38 THE BULLETIN December 2020

just and efficient for the applicant is easy: make it fast and simple. However, what is just and efficient for the accused and the public should also be taken into account. While the applicant should be able to get a judgment or order made in their favour enforced, the severity of that enforcement mechanism means their interests should not be given priority. Successfully bringing a contempt charge will eventually be just for the applicant, but, unfortunately for them and the public, the process should prioritise the interests of the accused. B Endnotes 1 Witham v Holloway (1995) 183 CLR 525, 530 (‘Witham’). 2 Ibid 531; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (‘Mudginberri’); Hearne v Street (2008) 235 CLR 125, 136 [25] (Kirby J). 3 Uniform Civil Rules 2020 r 1.5 (‘UCR’). The UCR came into operation on 18 May 2020: South Australia, South Australian Government Gazette, No 39, 14 May 2020, 1200; South Australia, South Australian Government Gazette, No 41, 18 May 2020, 1391; UCR (n 3) r 1.2. 4 UCR (n 3) r 205.2. 5 Ibid rr 103.2, 182.2 6 Ibid r 205.1. 7 Ibid r 201.2(3). 8 Ibid r 205.5(1). 9 Ibid r 205.5(2). 10 Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8, [11] (‘Maxilift [2020]’), quoting Mane Market Pty Ltd v Temple (Supreme Court of South Australia, Debelle J, 27 November 1998), [5] (‘Mane Market 1998’). 11 UCR (n 3) r 205.7. 12 Ibid r 205.7(2)(d). 13 Ibid r 205.7(3). 14 Ibid r 205.8(2). 15 Ibid. 16 Ibid r 205.8(5). 17 Australian Law Reform Commission, Contempt (Report No 35, June 1987) 299 [531] (‘ALRC Report’); Law Reform Commission of Western Australia, Review of the Law of Contempt (Report No 93, June 2003) 106. 18 Supreme Court Civil Rules 2006 rr 303, 305, 306 (‘SCCR 2006’). 19 Supreme Court Civil Rules 1987 r 93. 20 UCR (n 3) r 1.5. 21 SCCR 2006 (n 18) r 3(d). 22 Naomi Burstyner and Tania Sourdin, ‘Justice Delayed is Justice Denied’ (2014) 4(1) Victoria University Law and Justice Journal 46. 23 Witham (n 1) 539 (McHugh J); Mudginberri (n 2) 106. 24 Australian Law Reform Commission, Contempt: Disruption, Disobedience and Deliberate Interference (Discussion Paper No 27, April 1986) 77 (‘ALRC Discussion Paper’); Mudginberri (n 2) 106. 25 See, eg, Witham (n 1) 532–3 (Brennan, Deane, Toohey, and Gaudron JJ). 26 Maxilift [2020] (n 10) [15]–[16]; Mudginberri (n 2)

106–7; Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2014] SASC 119, [6], [23]–[24]; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 485 [149]; Phillis v Szenkovics (2001) 81 SASR 202, 214 [102]; Witham (n 1) 532–3 (Brennan, Deane, Toohey, and Gaudron JJ). 27 Director of Public Prosecutions Act 1991 (SA) s 7(1)(da). 28 South Australia, Parliamentary Debates, Legislative Council, 13 April 1994, 410 (Kenneth Griffin, Attorney-General). 29 Mudginberri (n 2) 109. 30 Ibid 106; ALRC Report (n 17) 307 [520]. 31 Witham (n 1) 533–4 (Brennan, Deane, Toohey, and Gaudron JJ). 32 (1992) 177 CLR 292, 315. 33 Australian Securities and Investments Commission v Reid [No 1] (2006) 151 FCR 540, 545 [21]. 34 UCR (n 3) r 205.7(a). 35 R v Cook; Ex parte Twigg (1980) 147 CLR 15, 25; Consolidated Press Ltd v McRae (1955) 93 CLR 325, 333; Maslen v Official Receiver (1947) 74 CLR 602, 611. 36 John Duns, ‘The Statutory Injunction: An Analysis’ (1989) 17 Melbourne University Law Review 56, 70. 37 Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 (‘Maxilift [2019]’); Maxilift [2020] (n 10). 38 Maxilift [2020] (n 10) [6]–[12]. 39 Maxilift [2019] (n 37) [7]. 40 Maxilift [2020] (n 10) [1]. 41 Ibid. 42 Mane Market 1998 (n 10); Mane Market Pty Ltd v Temple [1999] SASC 271 (‘Mane Market 1999’); Registrar of the Supreme Court of South Australia v Temple [2000] SASC 26; Registrar, Supreme Court (SA) v Temple [No 2] (2000) 77 SASR 1; Registrar, Supreme Court (SA) v Temple [No 3] (2000) 77 SASR 8; Registrar of the Supreme Court of South Australia v Southern Hotels Pty Ltd (2001) 78 SASR 453 (‘Southern Hotels’). 43 Mane Market 1999 (n 42) [3]. 44 Southern Hotels (n 42). 45 Mane Market 1998 (n 10) [5]. 46 [2018] SASC 70. 47 Ibid [83]. 48 Ibid. 49 Witham (n 1) 548–9 (McHugh J). 50 ALRC Report (n 17) 312 [531]; ALRC Discussion Paper (n 24) 100–1, 102–3. 51 Director of Public Prosecutions South Australia, Statement of Prosecution Policy and Guidelines (October 2014) 7; Geoffrey Flatman and Mirko Bagaric, ‘The Victim and the Prosecutor: The Relevance of Victims in Prosecution Decision Making’ (2001) 6(2) Deakin Law Review 238, 251; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Consultation Paper, July 2015) 43 [5.7]. 52 Law Reform Commission of Western Australia (n 17) 103. 53 UCR (n 3) r 201.2(3). 54 Zhao v AST Investments Pty Ltd [No 2] [2019] SASC 174, [14] (‘Zhao’); UCR (n 3) rr 12.1(1)–(2)(a). 55 Proceedings for an Alleged Contempt of Court by Animal Liberation (SA) Inc [2002] SASC 71, [12]. 56 Zhao (n 54) [18]. 57 Ibid [19].

FEATURE

REFRAMING ASIC’S EFFECTIVENESS DANIEL CALDERISI, BACHELOR OF LAWS STUDENT, UNISA

he role of the Australian Securities and Investments Commission (ASIC) is to administrate and ‘enforce’ Australia’s corporation and financial laws, of which its effectiveness has often been doubted.1 In a 2014 evaluation of ASIC’s performance, the Senate Economics Reference Committee stated ‘it appears to miss or ignore clear and persistent early warning signs of corporate wrongdoing’, a pattern solidified with the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry concluding ASIC must ‘alter’ its enforcement approach to meet legislative objectives.2 However, it is unclear that if one year ASIC has low litigation statistics, it performed poorly.3 A true evaluation of ‘effectiveness’ must then be an analysis of whether ASIC is acting optimally within its current framework. This is over the three regulatory levels that enforce the corporation laws in ex ante and ex post approaches.4 An important distinction to make as the Hayne Report was heavy handed in its focus of criticism of ASIC in not engaging in litigation, and for future evaluations a clearer idea of the system it operates in is required. This article considers the impediments to ASIC’s effectiveness that are mostly out of its control.

FRAMEWORK OF ‘EFFECTIVENESS’ The appraisal of ASIC on a regulatory architectural level is intertwined with the Australian Prudential Regulation Authority (APRA), with the two bodies’ miscommunications limiting enforcement.5 On the level of regulatory content, the hampering of ASIC’s enforcement ability appears with prescription based laws acting as a safe haven for financial services.6 Lastly on the procedural level, ASIC has appeared to have resorted to more cost effective measures in addressing contraventions, with the judiciary struggling to implement Parliament’s intended civil penalty regime.7 Essentially, ASIC acts to its fullest extent limited by impediments outside its control.

ARCHITECTURAL ACCOUNTABILITY Cultural Misconduct & Remuneration The dual pillars of Australia’s regulators in the finance sector are ASIC, in its aforementioned role, and APRA, which is primarily responsible for prudential regulation.8 A ‘twinpeak structure’ that was supported by Hayne in recommendation 6.1.9 However, inefficacies were identified in recommendations 6.9-10, which revealed a lack of co-regulation communication.10 This is a grave issue considering the

overlap of responsibilities between regulators, as a lack of prudential effectuality can breed misconduct (producing contraventions within ASIC’s scope).11 The propagation of misconduct under APRA can be established with the remuneration structures of financial services entities and the downward pressure it creates, that in turn generates compliance breaches.12 The structure of remuneration for executives are often set that shareholder returns are a 50% hurdle for share reward rights.13 Subsequently, high sales targets would be set for lower ranking staff, in turn creating a poor culture centred solely around return targets.14 This cultural outcome is exemplified by National Australia Bank subsidiaries knowingly charging superannuation fund members adviser fees, for essentially no service, throughout 2008-2009 with the breaches not being reported until 2014.15 That is one of many examples where APRA is slow to identify remuneration misconduct indicators and does not communicate it appropriately even with its statutory duty. Furthermore, especially given the performance of ASIC often depends on APRA, the former regulator cannot be at fault due to communication December 2020 THE BULLETIN

FEATURE

omissions by its co-regulator. These uncontrollable informational asymmetries only serve to hamper ASIC’s effectiveness, as its not guided to areas of downstream risk and may suffer from the omissions of APRA. Prescription Based Law The downstream cultural issue is not solely limited to dishonest fees, it continues to the manner in which financial services interact with the ‘letter but not the spirit of the law’.16 The Hayne Report dealt with this issue holistically in recommendation 7.4, stating to ‘simplify the law so that its intent is met’.17 In particular, Kenneth Hanye AC QC correctly identifies the issue of ‘prescription based’ regulatory content in preventing the community expected enforcement outcome based legislation would achieve.18 Minimal compliance can be found with fiduciary relationships frequently becoming blurred with conflicts of interests occurring and lax statutory duty enforcement. Dr Millhouse aptly finds this in the prescriptive deficiencies of the safe harbour provision in the ‘best interest duty’.19 The current compliance practice allows advisers to simply provide a list of superannuation products to clients, having the effect of requiring no independent inquiry into more suited investment products.20 This is as ASIC, Re Golden Financial Group Pty Ltd v Golden Financial Group Pty Ltd (No 2),21 demonstrated that the duty is a simple ‘tick box’ procedure to avoid contravention.22 It is not outcome driven but rather process driven; a stark departure from the common sense equity principle that defeats the actuality of protecting the client.23 This minimal obligation is commonly not even being met, with an ASIC investigation revealing 75% of advice files reviewed likely did not meet ‘compliance’ due to ‘prioritising a related party’.24 A likely core reason for a ‘steep rise’ in ‘big 4 bank owned super fund’ sales rising by 33% in recent years.25 It is not difficult to recognise the conflict, as it would be highly

40 THE BULLETIN December 2020

unlikely an adviser would recommend a fund (after providing a list) they do not have a relationship or high fee structure with, a legislative framework failure enabling a vertically integrated model that allows relationships between product issuers and advisers.26 Essentially, flaws in legislation protect financial services, enabling them to deliver dishonest advice that is facilitated by a sanctioned vertically integrated business model where misconduct spreads through remuneration incentives. ASIC and APRA are both ineffective here due to communication discrepancies on the architectural level. Firstly, ASIC often does not cooperate on this trickle down issue with APRA, even though it raised ‘it has long been concerned about the quality of financial advice’ and ‘conflicts’.27 Secondly, only in 2016 did APRA update its payment guidelines.28 Previously, APRA followed a lax approach to limiting topdown misconduct by solely focusing on a ‘firm’s attitudes towards remuneration’.29 This approach by APRA limited ASIC’s effectiveness by not recommending greater remunerative consequences for breaches to aid in minimising misconduct. This is as the lack of minimisation likely may have caused an increase in the number of detected and undetected breaches. However, in regard to regulatory content ASIC operates optimally within its framework. ASIC is simply limited by the inability of a lobbied government to alter prescriptive law to better impart its intent, that in turn would enable enforcement.30 Therefore, ASIC’s only flaw is with regards to architectural accountability and its inability to work collaboratively with APRA to mitigate misconduct at its source and identify where it sprouts.

JUDICIAL INHIBITORS The last type of accountability ASIC can be assessed on is the procedural level, which is the enforcement of laws. A ‘why not litigate approach’ (Hayne Recommendation 6.2) was recommended to improve effectiveness, however it

remains unclear if this is as effective as originally thought.31 The principal impediment ASIC faces when taking this alternative litigation approach is the plethora of procedural issues that the balance of ‘criminal and civil procedure’ in civil penalties create.32 Firstly, the issue of penalty privilege remains even after Rich v Australian Securities and Investments Commission,33 due to Corporations Act 2001 (Cth) s 1349 not abrogating this privilege in civil penalty proceedings.34 The penalty privilege has often been confused with the right against self-incrimination by the judiciary, even though the High Court has stated they ‘are conceptually distinct’.35 The penalty privilege rule requires a plaintiff to prove their case without the assistance of the defendant, however Justice Kirby correctly stated its ‘the over-reach of prove it’.36 This is exemplified in Macdonald v Australian Securities and Investments Commission,37 where the defendant was allowed to admit a bare pleading, enabling the altering of the defence after ASIC closed its case.38 Moreover, in Re Water Wheel Mills Pty Ltd,39 Justice Mandie denied application for the defendant to lodge a defence at all.40 This lack of disclosure ensures ASIC’s job to create a compelling case is difficult, which is only compounded with the higher standard of being ‘reasonably satisfied’ it must meet.41 This pivoting tool also causes ASIC to overspend pursuing an action, once having as many as seven senior counsel to review its pleadings to cover all possible defences.42 Essentially, the courts have substantially weakened ASIC’s enforcement ability by struggling to integrate the regulatory need of deterrence in civil penalty matters due to traditional evidentiary rules.43 In turn, demonstrating that enforceable undertakings and infringement notices are likely the most cost-effective tool for any attempt at regulatory enforcement across all breaches due to ASIC’s limited resources.44

FEATURE

CONCLUSION The public’s view of ASIC as an enforcer of law is key to the free flowing capital within Australia, to which ASIC should be considered to operate at its near optimal level within its framework.45 The regulator suffers from APRA’s failures to cull misconduct originating from boardroom targets while concomitantly being hand tied by regulatory gaps to address financial services issues known to exist. The judiciary’s procedural issues even hampering ASIC when it does hold adequate regulatory content to litigate over for a civil penalty. Essentially, ASIC is as effective as it can be without parliamentary intervention. B

6 7

10 11

Endnotes 1 Vicky Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (2009) 33 Melbourne University Law Review 802, 802; Australian Securities and Investment Commission Act 2001 (Cth) s 1(2)(g) (‘ASIC Act’). 2 Senate Economics References Committee, Parliament of Australia, Performance of the Australian Securities and Investments Commission (Final Report, June 2014), 17; Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol 1, 427 (‘Hayne’); Ian Verrender, ‘Banking royal commission: How ASIC went missing in action with the banks’, ABC News (online, 25 April 2018) < https://www.abc. net.au/news/2018-04-23/banking-royalcommission-how-asic-went-mia/9685792>; Australian Securities Investment Commission Act 2001 (Cth) s 1. 3 Joanna Bird, ‘Regulating the Regulators: Accountability of Australian Regulators’ (2011) 35 Melbourne University Law Review 739, 745. 4 David Milhouse, ‘Empirical analysis supports the Hayne long run reform thesis’ (2019) 13 Law and

13 14

15 16

17 18 19

20 21 22 23 24

Financial Markets Review 162, 164; Alice Klettner, ‘Challenges for Regulatory Reform in the Finance Sector: Learnings from the Last Decade’ (2019) 30 Journal of Banking and Finance: Law and Practice 151, 154. Alice Klettner, ‘Challenges for Regulatory Reform in the Finance Sector: Learnings from the Last Decade’ (2019) 30 Journal of Banking and Finance: Law and Practice 151, 153. Ibid 154. Aakash Desai and Ian Ramsay, ‘The Use of Infringement Notices by ASIC for Alleged Continuous Disclosure Contraventions: Trends and Analysis’ (Research Paper No 547, Faculty of Law, University of Melbourne, August 2011) 36. Pamela Hanrahan, ‘Improving the process of change in Australian Financial Sector Regulation’ (2008) 27 Economic Papers 6, 8. Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol 1, 37. Hanrahan, (n 8) 127; Hayne (n 9) 464. Steve Kourabas, ‘Improving Australia’s Regulatory Framework for Systemic Financial Stability’ (2018) 29(3) Journal of Banking and Finance Law and Practice 183, 198. Hayne (n 9) 333; Godwin Emmanuel Oyedokun, ‘Building Trust in a connected world – Hayne’s Royal Commission’ (Speech, 14th ICAN Western Zonal Accountants’ Conference, 3 February 2020). Hayne (n 9) 355. Kevin Davis, ‘The Hayne Royal Commission and financial sector misbehaviour: Lasting change or temporary fix?’ (2019) 30(2) The Economic and Labour Relations Review 200, 211; Roman Tomasic, ‘Exploring the Limits of Corporate Culture as a Regulatory Tool – The Case of Financial Institutions’ (2017) 32 Australian Journal of Corporate Law 196, 213. Hayne (n 9) 398. David Milhouse, ‘Empirical analysis supports the Hayne long run reform thesis’ (2019) 13 Law and Financial Markets Review 162, 179; Hayne (n 9) 43. Hayne (n 9) 42. Ibid 495-6. David Milhouse, ‘Empirical analysis supports the Hayne long run reform thesis’ (2019) 13 Law and Financial Markets Review 162, 166. Hayne (n 9) 177. [2017] FCA 1267, 17. Ibid [18]; Corporations Act 2001 (Cth) s 961B (‘CA’); Hayne (n 9) 495-6. Milhouse, ‘Empirical analysis supports the Hayne long run reform thesis’ (n 19) 166-7. Australian Securities and Investment Commission, Report 562 Financial advice: Vertically integrated institutions and conflicts of interest (Final Report, January 2018) 36 [137].

25 Industry SuperFunds, ‘The Big Four Banks want to rule superannuation on their own terms’, Industry SuperFunds (online, 2 August 2017) <https://www.industrysuper.com/media/thebig-four-banks-want-to-rule-superannuation-ontheir-own-terms/>. 26 Hayne (n 9) 124-6; David Milhouse, ‘From Campbell to Hayne: W[h]ither Australia? Australian financial regulation and supervision at a cross-roads’ (2019) 13 Law and Financial Markets Review 81, 87. 27 Klettner (n 5) 158. 28 Ibid. 29 Hayne (n 9) 344. 30 Roman Tomasic, ‘The Financial Crisis and the Haphazard Pursuit of Financial Crime’ (2011) 18 Journal of Financial Crime 7, 7. 31 Hayne (n 9) 446. 32 Vicky Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (2009) 33 Melbourne University Law Review 802, 811. 33 [2004] HCA 42. 34 Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (n 31) 805. 35 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 559. 36 Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (n 31) 816. 37 [2007] NSWCA 304 38 Ibid 614. 39 [2001] VSC 13, 15–6. 40 Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (n 31) 811. 41 Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (n 31) 809. 42 Vicky Comino, ‘James Hardie and the Problems of the Australian Civil Penalties Regime’ [2014] 37(1) University of New South Wales Law Journal 195, 200. 43 Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (n 31) 33; Roman Tomasic, ‘The Challenge of Corporate Law Enforcement: Future Directions for Corporations Law in Australia’ (2006) 10 University of Western Sydney Law Review 1, 9. 44 Roman Tomasic, ‘The Challenge of Corporate Law Enforcement: Future Directions for Corporations Law in Australia’ (2006) 10 University of Western Sydney Law Review 1, 4. 45 Roman Tomasic and Folarin Akinbami, ‘The Role of Trust in Maintaining the Resilience of Financial Markets’ (2011) 11(2) Journal of Corporate Law Studies 369, 370.

December 2020 THE BULLETIN

Law Society Gold Alliance Firm Program

he Society is the proud voice of the South Australian legal profession and symbolises the highest standard of professionalism, integrity and excellence. Being a Member of the Society highlights that you are part of an organisation which promotes and adheres to strict professional and ethical requirements. As our membership continues to grow, so does our ability to more strongly represent you and the legal profession before government, media and the community. When all of your staff are Members 1878 Elix Lawyers 360 Private Legal Accelerate Family Law and Culshaw Miller Criminal Lawyers Access To Justice Law Firm ADCO Legal Adelaide Capital Lawyers Adelaide Criminal Law Adelaide Family Law Adelaide Injury Law Adelaide Lawyers Adelaide Legal Adelaide Legal Solutions Adelphi Legal Adelta Legal Adelta Legal (Morphett Vale) Adelta Legal (Tea Tree Gully) AK Family Law Alan Oxenham Alan Wong Alex Mandry Legal Group Alison Bradshaw Legal Allen Burtt Almeida & Associates Alpha Family Lawyers AM Legal Anagnostou Business & Commercial Lawyers Andrew & Dale Barristers & Solicitors Andrew B Thiele & Co Andrew B Thiele & Co Andrew Hill & Co Andrew Rogers Lawyers Andreyev Lawyers Angas Lawyers (Aberfoyle Park) Angas Lawyers (Adelaide) Angela Ferdinandy Angela Pierce and Associates Angelopoulos Lawyers Anna Vicic Armour & Allen Arnold Costs Solicitors ASW Lawyers Avina Lawyers Awkar & Co Baggio Legal Bakker Vagnarelli Lawyers Ballinger Legal Bambrick Legal Bampton Law Barbaro Legal Bartel & Hall Bastiaan Sparreboom

42 THE BULLETIN December 2020

of the Society, you and your clients gain access to the latest information on issues and developments in the law, a network of talent and resources, as well as a gateway to education, support services, publications, savings and productivity. Benefits include: The Gold Alliance Firm logo may be placed on your website and email footers The Gold Alliance Firm logo may be published on stationery such as letterhead, business cards and with compliments slips. Access to additional discounts on a

BBS Lawyers Beger & Co Belchamber Legal Belperio Clark Bennett Legal Bernadette Day Lawyer Bianca Barca Lawyers Birtsos Legal Boril Olds Botten Dnistriansky Kellis Bourne Lawyers Boylan Lawyers Boylan Lawyers (Adelaide) Boylan Lawyers (Pt Augusta) Boylan Lawyers (Strathalbyn) Boylan Lawyers (Victor Harbor) Bradbrook Lawyers Brown & Associates Commercial Lawyers BSG Lawyers Barrister Solicitors Notary Public Budden Law Budwal Lawyers Business & General Legal C B McDonough & Co CA Legal & Migration Cacas Legal Calabio Conveyancing Calderwood Atkinson (Elizabeth) Calderwood Atkinson (Nuriootpa) Caldicott Lawyers Camatta Lempens Campbell Law Campbell Rankine Carbone Polvere & Co Cardone & Associates CARES Lawyers Carlin Lawyers Carmel Riordan Lawyers Carmine Barone Carter & Co Lawyers Carter Family Law Cavalier Legal Caveo Partners Legal CCK Lawyers CCR Legal CG Family Law Chong & Co Christine Korobacz Solicitors CJL Family Law CJM Legal Clarke Hemmerling Lawyers Clelands Lawyers

number of Society Subscriptions, such as the Standard Form Documents. Your firm will be listed on the Law Society website and in the Bulletin. This is a unique marketing opportunity for firms, both small and large, to promote to the community and your clients that all practitioners within your firm are Members of their professional association. To enquire if your firm is eligible to become a Gold Alliance Firm, please contact the Society on (08) 8229 0200 or email reception@lawsocietysa.asn.au. B

Coates Lawyers Codex Legal Comley Legal Commercial and Legal (Legal Services) Community Family Law & Mediation Con O'Neill Barrister & Solicitor Con O'Neill Barrister & Solicitor Conatur Legal Connolly & Co Constantine Legal Corsers Lawyers Costi & Co Cowell Clarke Cowell Clarke (NSW) CPC Lawyers Craig McKay Legal Crawford Legal Crawford Legal (Vic) Crosby & Associates Culshaw Miller Divorce and Family Lawyers Culshaw Miller Lawyers Dadds Jandy Lawyers Daenke Lawyers D'Angelo Lawyers David Barnfield Lawyer David Burrell & Co David Deakin Davies & Co David Johnson Debra Spizzo & Associates Barrister & Solicitors Denise M. Rieniets & Associates Devine Murdoch Dewar Legal Barristers & Solicitors Di Rosa Lawyers Di Sotto Lawyers Diane Myers Diaspora Legal Distinction Legal Dixon Gallasch Dixon Gallasch (Walkerville) DMAW Lawyers Doconade Adelaide Lawyers Donlan Lawyers Donlan Lawyers (Victor Harbor) Douglas Hoskins Legal Pty Ltd Duc Mai Lawyers Duddy Shopov Duncan Fowler Lawyer Eckermann Lawyers Edge Law Elliott & Co Barristers And Solicitors EMA Legal

EMT Legal ENA Law Equality Lawyers Pty Ltd Ericson Legal Evans Testa Barrister & Solicitors (West Lakes) Evans Testa Barristers & Solicitors Evans Testa Barristers & Solicitors (Light Square) EZRA Legal EZRA Legal (Port Lincon) Fabbian Lawyers Fabrizio Porcaro Pty Ltd Fair Work Lawyers Family Law Outcomes Finniss Legal FJS Lawyers Adelaide Fletcher & Lawson Fletchers Lawyers Fuda Lawyers Furler & Co Barristers and Solicitors Furler & Co Barristers and Solicitors (Clare) Gabito Lawyers Gabito Lawyers (Pt Lincoln) Gardner Legal & Regulatory Gary Pearce Genders & Partners Georgiadis Lawyers Georgiadis Lawyers (Christies Beach) Georgiadis Lawyers (Mount Barker) Georgiadis Lawyers (Salisbury) Germein Reed Germein Reed (Moonta) Gilchrist Connell Gillian Marks & Company Gretsas & Associates Grope Hamilton Lawyers Guarna Legal H F Lambert Hackett Lawyers Haebich Law Hamilton Legal Harry Alevizos Hasda Legal Hau Pehn Yapp Hawker van Dissel Law Hepenstall & Associates Herve & Co Heuzenroeders Lawyers Howe Jenkin Family Lawyers Hume Taylor & Co Hume Taylor & Co (Millicent)

Hume Taylor & Co (Whyalla) Humphrey Legal Hutton Cragg Legal Interpret Contracts Interpret Legal J Caruso J Richard Croft Jaak Oks Lawyers Jackson & Associates Jane Moore Jankus Legal Janus Lawyers JD Legal JDC Law Jennifer Corkhill Jennifer M Bradley Jennifer Stefanac Barrister & Solicitor JKR Lawyers JKR Lawyers (Qld) Johnson Lawyers Johnston Legal + Advisory Johnston Withers Johnston Withers (Clare) Johnston Withers (Murray Bridge) Johnston Withers (Port Augusta) Johnston Withers (Roxby Downs) Johnston Withers (South Tce) Johnston Withers (Whyalla) Jones Elferink Barristers & Solicitors Jones Harley Toole Joseph Ramsay Sanders Joseph Ramsay Sanders (MurrayLands) Joseph Ramsay Sanders Lawyers (Victor Harbor) Judith Jordan Family and Collaborative Lawyer Karydis-Frisan & Associates Kathryn Herriman Barrister & Solicitor Katrina Jacobs Estate Law KC Lawyers Kelly Kelly Legal Kin Lawyers Pty Ltd KJK Legal KP LAWYERS Kruse Legal Kudra & Co Kyrimis Lawyers Lachlan McAuliffe Laity Morrow LawCall (MOUNT BARKER) LawCall (WAYVILLE) LBD Legal Lee & Partners Lee & Partners (Glen Osmond) Legal Projects Commercial Lawyers Legal Projects Family and Relationship Lawyers Lena Grant Les Rowe & Associates Leventis Lawyers Lewis & Shane Lieschke & Weatherill Lindbloms Lawyers Lins Lawyers Liptak Lawyers Lisacek & Co LSSA TEST Lumond Lawyers M Riley Lawyer Mac and Co Lawyers Madsen O'Dea Mahony's Lawyers (Campbelltown) Mahony's Lawyers (Mt Gambier)

Mahony's Lawyers (Salisbury) Mahony's Lawyers (Woodville) Maione Lawyers Mandy Edwards & Co Lawyers Manik Meah Mantzoros & Partners Marie Alvino Marie Stokes Family Lawyers Mark Esau Mark Gustavsson & Associates Mark Mudri & Associates Martha Ioannides Martin Robinson Solicitors Mason Gould Matthew Mitchell Solicitors Matti Lamb & Associates Mayweathers (NSW) Mayweathers (SA) Mazzocchetti Legal McGrath Lawyers Mead Robson Steele Meister Legal Mercurio & Co Micallef Lipson Chambers Michael F Lindblom Michael Hegarty & Associates Michael Rehberg - MR LAW Mildwaters Lawyers Minney & Associates Minotaur Law Mira Zacharia Mitcham Family Law MK Legal & Migration Moffat Lawyers Mont Legal Montague Law Moore Law Disability & Aged Care Moran & Partners Solicitors Motus Legal MPS Law MSM Legal Mullen Lawyers Nathan White Lawyers NDA Law NDEdwards & Co Nemer Essey Lawyers Nexus Law Group Nicholas Boswell & Co Lawyers Nicholas Eid Nick Xenophon & Co Lawyers NJ Ireland North East Lawyers Northside Lawyers O'Briens Solicitors ORB Lawyers CHRISTIES BEACH ORB Lawyers WAYVILLE O'Toole Lawyers P. F. Hall Pace Lawyers Pallaras Legal Pascale Legal Barristers & Solicitors Patsouris & Assoc Paul D Bear Lawyer Paul Kirk Legal Pederick Lawyers Peripheral Blue Legal Perre Legal Perrotta Legal Perry Lawyers Peter Fisher Lawyers Peter Fisher Lawyers (Woodside) Peter Marker & Assoc Peter Picotti Barrister and Solicitor PGC Legal

Pittaway Lawyers and Conveyancers Playford Legal Polson Legal Precision Legal R J Cole & Partners R. A. English & Co Radbone & Assoc Randle & Taylor Rebecca Beasley Barrister + Solicitor Rebecca McDougal Regent Legal Pty Ltd Resolve Divorce Lawyers RI Consulting Richards & Evans Commercial Lawyers Richards Legal Riverland Commercial Lawyers Roach Corporate Law Roach Corporate Law (South) Robert F Floreani Robert Norman & Associates Robert Saunders & Associates Ronald Frank Bell Rosey Batt & Associates RSA Law Rudall & Rudall (Tanunda) Rudall & Rudall Adelaide Rudall & Rudall Gawler Ryan & Durey Solicitors Ryans Lawyers Ryder Family Law S J McKinnon & Associates SA Family Law Salandra Lawyers Sarah Grimwade Barrister & Solicitor Scales & Partners Scales & Partners (GLENELG) Scammell & Co (Adelaide) Scammell & Co (Gawler) Scammell & Co (Port Adelaide) Scammell & Co (Renmark) Scammell & Co (Walkerville) Schirripa Evans Lawyers Scott Allard Scott Lawyers SCP Legal SE Lawyers (Warradale) Sedsman Legal SG Law Sharon Holmes Shaw & Henderson Silkwoods Chambers Sinoch Lawyers Sonia Petracca Lawyers Southern Coast Legal Specialised Dispute Management Spencer Gulf Law - Suzy Graham St Ives Law Standon Lawyers Stanley Law Stephen Gibbons Lawyers Stevanja & Associates Steven M Clark Stewart-Rattray Lawyers Stokes Legal (Dernancourt) Stokes Legal (Edwardstown) Stokes Legal (Torrens Park) Stokes Legal (Victor Harbor) Stokes Legal (Woodville) Strachan Carr Straits Lawyers Su and Associates Susan Cole Barrister & Solicitors Swan Family Lawyers

Swan Family Lawyers (Whyalla) Sweetlove Family Law Terese Wacyk Legal Teusner & Co The Family Law Project The Trustee for D&L Kruse Family Trust Thomas Rymill & Co Thompson Smyth Barristers and Solicitors Thomson and Associates Tim Clarke & Co Tim Dibden Tindall Gask Bentley Tindall Gask Bentley (Gawler) Tindall Gask Bentley (Mannum) Tindall Gask Bentley (Mt Barker) Tindall Gask Bentley (Murray Bridge) Tindall Gask Bentley (NT) Tindall Gask Bentley (Pt Lincoln) Tindall Gask Bentley (Reynella) Tindall Gask Bentley (Salisbury) Tindall Gask Bentley (WA) Tindall Gask Bentley (Whyalla) Toward Lawyers Town & Country Lawyers Townsends Travancore Legal & Advisory Treloar & Treloar Tri-meridian Corporate & Commercial Law Union Legal SA Varga Lawyers VdV Legal Von Doussas (Mt Barker) Voumard Lawyers Voumard Lawyers (Clare) Voumard Lawyers (Adelaide) Voumard Lawyers (Port Pirie) VP Lawyers Wadlow Solicitors Washyn Legal WBH Legal Wearing & Blairs Weatherly & Associates Websters Lawyers Websters Lawyers (Ridgehaven) Websters Lawyers (Smithfield) Welden & Coluccio Lawyers (Findon) Welden & Coluccio Lawyers (Prospect) Westley Di Giorgio Norcock Whatson Legal White & White (Wallaroo) White & White Lawyers White Berman Grant Legal WhitingtonÂ Darby Williams Barristers And Solicitors Wills At Your Home Wills Direct Wilson Lawyers (SA) Winlaw & Associates Winters, Barristers, Solicitors and Notaries Woodburn & Co Woods & Co Lawyers Work Visa Lawyers WRP Legal & Advisory Xiao Lawyers Yan Robson Barrister & Solicitor You Legal Your Estate Lawyer YT Legal Zielinski Legal

December 2020 THE BULLETIN

WELLBEING & RESILIENCE

Thank you 2020…? ZOE LEWIS, JUSTICENET & CHAIR OF THE WELL-BEING AND RESILIENCE COMMITTEE

promise not to use the “C” word. No doubt you are sick of it. And if someone asked you about 2020, no doubt you would tell them how sick of that you are too. We all know it has been difficult, disappointing and a whole lot more. But research repeatedly reminds us that gratitude is one of the surest ways to boost our mental wellbeing and resilience, so I am going to do my best to convince you that loads of good things came out of 2020 too.

•

WHY GRATITUDE MATTERS Gratitude boosts your mood, enhances your relationships, protects your physical and mental health, and makes it easier to cope with the tough times.1 The unfortunate thing about our brains when it comes to Gratitude is that we are hardwired to preference negative memories. In other words, the good things might pass us by largely unnoticed while the negative things… Well, they stick with us. There are good evolutionary reasons for this (something about making us learn how to stay safe from lions) but in everyday life, this can be a real issue. So, we need to make an extra effort to cement those positive thoughts and memories.2 It doesn’t mean that we should ignore or forget our problems, or dismiss the challenges we are facing as being unimportant. It just means giving our good memories a boost so we can balance out the scales. And the good news is that studies show that the more we practice gratitude, the easier it gets – and the more we can enjoy the benefits.3

• • • •

•

A GRATITUDE LIST FOR 2020 • We scored a closer look into each other’s real lives as pets and family members became guests in our zoom meetings – this enhanced many of our connections with colleagues on a more personal, human level; • Many of us were forced to upgrade our IT equipment and our attitudes in relation to WFH – this has given some of us more flexibility than ever and bodes well for future possibilities for all

44 THE BULLETIN December 2020

•

• •

of us (think options for parents, people with limited mobility and those living in more remote locations!); Many of us spent most of the winter in track pants and ugg boots rather than having to brave the cold in our usual business attire; Hamilton was brought to our screens by Disney Plus – and a vast array of professional artists provided both recorded and live content available free online; Pollution levels plummeted due to the drastic reduction in all forms of transport around the world – in India, some people reported seeing the Himalayas from their homes for the first time;4 Dogs and other pets everywhere were happier having their humans at home more; Some felt a renewed sense of appreciation for how lucky we are to live in this state/country; We adopted a greater focus on supporting our local businesses; There was a reduction in the stigma around mental illness and poor mental health – and more dialogue and awareness leads to better outcomes for all of us; The recent Federal Budget also came with a big win for mental health: sessions subsidised by Medicare were doubled from 10 to 20 per calendar year and lots of other services gained additional funding; More telehealth services are available now than ever before – this saves time and inconvenience and improves access to these services (many of which are free); Many workplaces have really moved away from the toxic culture of “work when you are sick and never take sick leave so you prove you are a good employee” – we are now more likely to acknowledge the benefits of keeping our germs to ourselves and letting our bodies heal; Our trains, buses, gyms and supermarkets have never been cleaner!; There was a significant reduction in the

• •

•

occurrence of flu and flu-related death in SA, likely due to social distancing measures and increased uptake of the influenza vaccine;5 We reconnected with some of our local tourism treasures; Many individuals and businesses have been inspired (or forced) to reflect on their practices and consider what approaches are serving them and which ones aren’t – where do we really want to invest our time, money and energy going forward?; We rediscovered some favourite pastimes – at-home movies, gardening, baking, reading, board games…; There was an increase in our participation in beneficial activities like walking, bike riding and gardening – as evidenced by the enormous lines we saw outside our local Bunnings stores!; Many of us used technology creatively as a way to connect – we recognised that merely “liking” something on social media wasn’t enough and instead picked up the phone or arranged Friday night drinks via zoom; And on that note, many of us chose to be more deliberate about our consumption of technology as well – “unfollowing” people and pages that drained us and finding more positive content to track such as The Good News Movement; Spotify launched Daily Wellness playlists in which music is selected according to your personal preferences with more energizing tracks in the morning and more soothing music and podcasts in the evening; The adoption of creative measures to keep rough sleepers off the streets and renewed attention to the issue of homelessness (and more importantly, some possible strategies to address it); Some services improved to the benefit of people with a disability – for example, a greater array of at-home services and deliveries and more activities which they could partake in online from the comfort and safety of their own home; For a while at least, we enjoyed almost

WELLBEING & RESILIENCE

unprecedented political cooperation – significant economic packages and health guidelines were able to be passed relatively quickly based on the opinions of the experts (and without the usual “argy-bargy” we get so used to seeing); • Importantly, this meant that as a country we took care of those who couldn’t take care of themselves, lifting many people above the poverty line and preventing some others from falling below it for the first time – many banks and other large companies also jumped on the bandwagon offering more flexible arrangements for customers experiencing hardship; • And on a pandemic-unrelated note, Crayola launched a box of crayons with

diverse skin colours for children to “accurately colour themselves into the world” (although these might only be available in the US for now).

GRATITUDE YOUR WAY As you wrap up your 2020, you might like to share with friends, family or colleagues which of the above items resonated with you and which other items you would have included on this list. Whilst it might be true that “a problem shared is a problem halved”, it is also true that a good thing shared is a good thing doubled – if we succeed in increasing our positive feelings and the positive feelings of those around us, there is a snowball effect we can all enjoy.

3 OCT 2020 – 2 NOV 2020 ACTS PROCLAIMED Statutes Amendment (Sentencing) Act 2020 (No 35 of 2020) Commencement: 2 November 2020 Gazetted: 29 October 2020, Gazette No. 85 of 2020

ACTS ASSENTED TO Statutes Amendment (Sentencing) Act 2020, No. 35 of 2020 (amends Criminal Procedure Act 1921 and Sentencing Act 2017) Gazetted:

22 October 2020, Gazette No. 83 of 2020

Equal Opportunity (Parliament and Courts) Amendment Act 2020, No. 36 of 2020 Gazetted: 22 October 2020, Gazette No. 83 of 2020

Endnotes 1 https://www.happierhuman.com/benefits-ofgratitude/ 2 https://au.reachout.com/articles/the-how-andwhy-of-practising-gratitude; https://mensline. org.au/mens-mental-health/the-power-ofgratitude/ 3 https://www.sbs.com.au/topics/voices/health/ article/2016/01/08/how-expressing-gratitudemight-change-your-brain 4 https://www.nationalgeographic.com/ science/2020/04/pollution-made-the-pandemicworse-but-lockdowns-clean-the-sky/ 5 https://www1.health.gov.au/internet/main/ publishing.nsf/Content/cda-surveil-ozfluflucurr.htm#current

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

Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020, No. 37 of 2020 (amends National Electricity (South Australia) Act 1996, National Energy Retail Law (South Australia) Act 2011 and National Gas (South Australia) Act 2008) Gazetted:

For resources including the Wellbeing and Resilience Online Programme & The Law Society Wellbeing & Resilience Guide… Google: “Wellbeing & Support Resources” B

22 October 2020, Gazette No. 83 of 2020

Teachers Registration and Standards (Miscellaneous) Amendment Act 2020, No. 38 of 2020 Gazetted: 22 October 2020, Gazette No. 83 of 2020

APPOINTMENTS State Opera of South Australia Board Member: from 23 October 2020 until 22 October 2023

Elizabeth Christina Olsson Gazetted: 22 October 2020, Gazette No. 83 of 2020 Judge of the District Court of South Australia Deputy President of the South Australian Employment Tribunal from 7 December 2020 Miles Andrew Crawley SC Gazetted: 29 October 2020, Gazette No. 85 of 2020

RULES Uniform Civil (No 2) Amending Rules 2020 Gazetted: 8 October 2020, Gazette No. 80 of 2020

REGULATIONS PROMULGATED (3 OCTOBER 2020 – 2 NOVEMBER 2020) REGULATION NAME

REG NO.

DATE GAZETTED

Return to Work (Exclusions) Variation Regulations 2020

284 of 2020

15 October 2020, Gazette No. 81 of 2020

Road Traffic (Light Vehicle Standards) (Motor Bikes and Other Matters) Variation Rules 2020

285 of 2020

15 October 2020, Gazette No. 81 of 2020

Railways (Operations and Access) Regulations 2020

286 of 2020

15 October 2020, Gazette No. 81 of 2020

Controlled Substances (Poisons) (Real Time Prescription Monitoring) Variation Regulations 2020

287 of 2020

22 October 2020, Gazette No.83 of 2020

Summary Offences (Custody Notification Service) (No 2) Variation Regulations 2020

288 of 2020

29 October 2020, Gazette No. 85 of 2020

Sentencing (Discounts) Variation Regulations 2020

289 of 2020

29 October 2020, Gazette No. 85 of 2020

December 2020 THE BULLETIN

HOMELESS LEGAL

Homeless Legal: a legal service dedicated to assisting people who are homeless or at risk of homelessness

omelessness is a significant socioeconomic problem in South Australia – approximately 6,200 of us are considered to be homeless at any one time. This includes people who are rough sleeping or couch surfing and those who are living in substandard, overcrowded or inadequate housing. People experiencing homelessness are twice as likely to experience legal problems when compared with the general population. They are also three times as likely to have multiple legal issues, such as tenancy, criminal, debt, personal injury, social security, family, and guardianship and administration issues. JusticeNet’s Homeless Legal is a legal service dedicated to assisting people who are homeless or at risk of homelessness. Our clients are facing diverse challenges – they might be dealing with fines while rough sleeping, facing an eviction application by their landlord, or residing in accommodation which is unsuitable or unaffordable and in need of help to break their lease. A key element of the success of Homeless Legal is that services are provided in a location which is familiar and convenient to the client – currently the Hutt St Centre and Catherine House. Another defining feature of Homeless

From left: Zoe Lewis – Managing Solicitor, Homeless Legal; Tim Graham – Executive Director, JusticeNet; Jaimie Holland – Wellbeing Centre and Pathways Manager, Hutt St Centre

Legal is the generous support of our pro bono law firm partners – currently MinterEllison and Dentons Fisher Jeffries. People can access advice and referrals from the pro bono lawyers at Homeless Legal. In some cases we can also provide limited assistance or representation. Homeless Legal is a relatively new service, having been launched in late 2019, just before the pandemic complicated the provision of outreach services. However, we have recently resumed providing

face-to-face services, and are continuing to offer telephone appointments (which were introduced during the height of the restrictions). There are also many exciting plans to expand the reach and impact of this service throughout 2021 and beyond. For more details (including how to support Homeless Legal with this important work) please refer to our website: https://www.justicenet.org. au/what-we-do/homeless-legal B

about how his matters would be dealt with interstate. Sam felt more confident entering a detox treatment facility knowing that his legal matters were under control and that he has someone to assist him with his next steps once his treatment is completed. Importantly, Sam was able to access the support of Homeless Legal at a community centre which was already familiar to him. There was no need for

him to attend a foreign – and potentially intimidating – lawyer’s office. This also made it easy for his case worker to attend for moral support and to assist Sam with follow up actions. “Thank you so much for the extra time you put in yesterday with Sam. He felt like he made progress which is something he has not done for a very long time.” – Sam’s caseworker *Name changed to protect privacy B

THE IMPACT OF HOMELESS LEGAL

am* presented to Homeless Legal at a real tipping point in his life. He was facing fines and criminal charges in multiple states while sleeping rough and battling substance abuse. With the support of a lawyer from Homeless Legal, and his case worker, Sam was able to enter a payment arrangement for his fines that ensured additional fees did not continue to accrue. He was also able to get the legal advice he needed including clarification

46 THE BULLETIN December 2020

CLASSIFIEDS

VALUATIONS MATRIMONIAL DECEASED ESTATES INSURANCE TAX REALIGNMENT INSOLVENCY FURNITURE ANTIQUES, COLLECTIONS BUSINESS ASSETS MACHINERY MOTOR VEHICLES CARS, BOATS, PLANES

We manage one of SA’s largest social media accounts. boylen.com.au

Simple, clear, unbiased advice, without fear or favour.

t. +61McPharlin 8 431 80 82 FCA Hugh

Andrew Hill Investigations

ABN 68 573 745 238 Investigating: • workplace conduct • fraud • unprofessional conduct • probity Support services: Andrew Hill • forensic computing analysis • transcription services • information sessions, particularly for HR practitioners on the investigative process • policy development. PO Box 3626

d m.+61 8139 1130 +618401 712 908 m +61 419 841 780 e. ahi@andrewhillinvestigations.com.au e hmcpharlin@nexiaem.com.au w nexiaem.com.au

NORWOOD SA t. 5067 +61

8 431 80 82 m. +61 401 712 908 e. ahi@andrewhillinvestigations.com.au Fellow AIPI

Consulting Engineers Australian Technology Pty Ltd for expert opinion on:

CITY & COUNTRY

• Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety • Statistical analysis

ROGER KEARNS Ph: 08 8342 4445 FAX: 08 8342 4446 MOB: 0418 821 250 E: auctions@senet.com.au Certified Practising Valuer NO.346 Auctioneers & Valuers Association of Australia

Forensic Accounting

Andrew Hill Investigations

W. Douglass R. Potts

P (08) 8233 9433

MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE

8271 4573 0412 217 360

wdrpotts@gmail.com

Licensed Investigation Agents & Process Servers Servicing the Mid North, Yorke & Eyre Peninsula`s and Outback of South Australia with: • Process Serving • Property Lockouts • Investigations • Missing Persons

OUTBACK BUSINESS SERVICES

P.O. Box 591, PORT AUGUSTA. 5700 P: 0418 838 807 info@outbackbusinessservices.com.au

Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

CONSULTING ACTUARIES

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

Marita Bajinskis

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne Marita is an Accredited Family Law Specialist and can assist with all family law matters including: • • • •

matrimonial and de facto property settlements superannuation children’s issues

3/224 Queen Street Melbourne VIC 3000 T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

FOR PROFESSIONAL ACTUARIAL ADVICE ON - Personal Injury - Workers Compensation - Value Of Superannuation Contact

Geoff Keen, Bruce Watson or Deborah Jones 08 8232 1333 contact@brettandwatson.com.au www.brettandwatson.com.au

Ground Floor 157 Grenfell Street Adelaide SA 5000 December 2020 THE BULLETIN

We manage one of SA’s largest social media accounts. boylen.com.au

P �08� 8233 9433

The Bulletin - Law Society of South Australia - December 2020

Articles inside

Get to know your next President

Law Society Gold Alliance Firm Program

Legal service dedicated to assisting

Wellbeing & Resilience: Thank you 2020…? By Zoe Lewis

Reframing ASIC’s effectiveness By Daniel Calderisi

President's Message

Risk Watch: Calculating time limits — you need to know where to start By Grant Feary

Q&A: President-Elect Rebecca Sandford

Family Law Case Notes By Keleigh Robinson

Has the introduction of adult adoption in South Australia been a success? By Eva Bailey

Tax Files: Storage land an active asset By Briony Hutchens

From the Editor