The Bulletin - Law Society of South Australia

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 11 – DECEMBER 2021

IN THIS ISSUE

Protecting pets in domestic violence situations Renting with pets Therapy & assistance animals

ANIMALS & THE LAW

INTRODUCING

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (11) LSB(SA). ISSN 1038-6777

CONTENTS ANIMAL LAW 8

FEATURES & NEWS

Animals and intervention orders: tree hugging nonsense or natural evolution of domestic violence laws?

By Ronan O’Brien & Diana Thomas

10

Renting with pets in SA

By Renée Evans

22

Therapy or assistance animals: What’s the difference? – By Renée Evans & Diana Thomas

30

The existing legal safeguards for experimental laboratory animals in SA – By Ross Templeman

31

Animal Welfare Laws leave pet fish up the creek – By Ronan O’Brien

32

Turkeys & the law

By Diana Thomas

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

R Sandford J Stewart-Rattray A Lazarevich V Gilliland F Bell T White M Mackie M Tilmouth

Metropolitan Council Members T Dibden M Tilmouth A Lazarevich M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo M Jones Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members vacant Ex Officio Members The Hon J Teague, Prof V Waye, Prof T Leiman Assoc Prof C Symes

12

Know your Council Member: Melanie Tilmouth

14

Vale: Mark Glencraig Nicholls

By Michael Roder QC

16

More collaboration between legal profession and disability community key to breaking down barriers

By Catia Malaquias

6

From the Conduct Commissioner: Overview of the LPCC annual report

By Greg May

15

Members on the Move

24

Young Lawyers: Committee holds interactive ethics and wellbeing seminar – By Meghan Fitzpatrick

26

Wellbeing & Resilience: It’s OK to grieve, and to reach out for support

By Amy Nikolovski

18

Encouraging law students to work with regional and Aboriginal communities – Dr David Plater, Chloe Winter, Charlotte Ordynski & Cayleigh Stock

28

Risk Watch Culturally and Linguistically Diverse Clients: Ongoing Challenges for Lawyers

By Grant Feary

25

Event wrap-up: Mock Trial final

By Stephanie Moore

34

Tax Files: DGRs that are not already charities – By Paul Ingram

35

Bookshelf

36

Family Law Case Notes

By Craig Nichol & Keleigh Robinson

37

Gazing in the Gazette Complied by Master Elizabeth Olsson

REGULAR COLUMNS 4

President’s Message

5

From the Editor

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

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

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia.

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PRESIDENT’S MESSAGE

Another challenging year comes to a close, but commitment to welfare of the profession continues REBECCA SANDFORD, PRESIDENT

A

s the end of 2021 approaches, I’m finding it hard - despite the reminders each time I walk through Rundle Mall and enjoy the Christmas decorations - to believe how fast this year has gone, and how much has occurred in only 12 short months.

At the start of my Presidential term, I indicated an intention to focus on a few key priorities this year - in particular, mental health and wellbeing support for the profession; increasing diversity and taking further steps to address sexual harassment, bullying and discrimination in the law; and considering the use of and role for technology in the delivery of legal services. I’m pleased that I’ve been able to take steps to address each of those throughout this year.

I have been especially proud of work the Society has undertaken in relation to wellbeing, resilience and mental health support for the profession. Early in my Presidency, the Society commissioned a mental wellbeing survey, in a similar vein to the 2020 survey conducted by the International Bar Association, to ‘take the temperature’ of the local profession on this important topic. The survey results have already been discussed in articles in this publication, and continue to be the subject of consideration by the Wellbeing and Resilience Committee, with the Society maintaining a focus on further strategies to ensure legal practitioners can be better supported in managing and maintaining their mental health and wellbeing into the future.

Whilst in some respects this year has been less tumultuous than 2020, it has certainly not been without its challenges, and there have been plenty of reminders of the importance of appropriate help and support being accessible to all of us - including during our short lockdown in July. I know that for many, dealing with the uncertainties and restrictions arising

4 THE BULLETIN December 2021

from the pandemic has been very difficult, and your resilience and endeavours in dealing with those challenges are to be commended. I have found it reassuring that many of the practitioners I spoke with have, or are gaining, an increased awareness of the importance of mental health support and are actively taking steps to embed a wellbeing focus in their approach to legal practice. I have been grateful for the chance to speak with many of you, including many of our small practice solicitors, during the course of 2021 and I thank each of you who generously shared your experiences with me.

For that reason, amongst others, I am also glad to have chosen the Breakthrough Mental Health Research Foundation as the President’s charity for 2021. I have thoroughly enjoyed the relationship that has been built between the Society and the Foundation during the year and the opportunity to learn from the important work of the Foundation. Raising over $11,000 at the Legal Profession Dinner in August to help the Foundation kick off its Big Talks for Little People program in SA schools was definitely a highlight of my year (not to mention that it confirmed my long held view that wine walls really are the adult version of a lucky dip - and just as popular!), and it was also very pleasing that this year saw the victorious return of the Great Debate during Mental Health Week - a well-attended, and well received, event that allowed us to take a more humorous look at some aspects of the last 12 or so months, with our speakers doing an excellent job of debating whether WFH = LAW (i.e. Work From Home really means Living At Work).

Work on the topic of sexual harassment, bullying and discrimination has also been a top priority throughout this year. As I have said in various forums, including in each of the multiple presentations I have delivered or chaired

this year, we all have a part to play in transforming the culture of the legal profession to make it more inclusive and welcoming, and to ensure we can each feel safe, valued and respected in our workplaces. It has been heartening to see how the profession has grappled with this challenge and taken real steps to implement change and provide support. I am particularly proud that since its introduction in June 2021, the Society’s “Sexual Harassment - Changing Workplace Culture” workshop has been attended virtually by over 1850 lawyers in SA, with a further 120 practitioners also attending a bystander intervention session

by Trish Lowe in November. Multiple CPDs have also been run by other bodies both prior to and since the delivery of the (Acting) Equal Opportunity Commissioner’s comprehensive Report in April this year, all of which can only help to inform and educate the profession about this issue and what needs to be done to address it.

The Society, and others within the profession, have also taken meaningful action towards other recommendations in the Inquiry Report, including amending the Legal Profession Conduct Rules to ensure a single set of Rules applies to the entirety of the SA profession (and incorporating a new, more expansive prohibition against bullying and harassment), and work undertaken at both a state and national level for legislative change and with respect to model policies and procedures. Before 2021 concludes, my expectation is that the Law Council’s National Model Policy Framework and accompanying Guidance Notes - the development of which the Society has contributed to as a constituent body of the Law Council throughout this year - will be available for practitioners to commence using as a ‘best practice’ approach or reference tool.

PRESIDENT’S MESSAGE

I look forward to continuing to work with the Council next year as Immediate Past President to keep this important momentum going, aiming to eliminate improper conduct from within the profession, further develop our education and training offerings in this critical area, and ensure we continue to increase diversity in legal leadership.

On a lighter note, I have been pleased and proud to represent the Society at a range of events throughout the year, including sharing in hosting duties for the Margaret Nyland Long Lunch (held jointly with the Women Lawyers’ Association of SA) and the Legal Profession Dinner, each of which were attended by over 300 people. I have also been privileged to speak at a large number of ceremonial sittings throughout the year, including to celebrate the commencement of the Court of Appeal, to welcome several new

judges and justices in the Supreme, District and Federal Circuit and Family Courts as well as the South Australian Employment Tribunal, and to commemorate the Honourable Justice Strickland’s career upon his retirement from judicial office. I have enjoyed all the opportunities I’ve had to meet with members of the profession at events and conferences throughout 2021.

Of course, the Society’s key advocacy work, via submissions, media, and appearances at parliamentary committees, has also formed a substantial part of my and the Society’s work - the breadth of topics has been significant, and included such varied matters as privacy and technology law, road traffic law changes, the age of criminal responsibility, domestic violence reform and vaccination policies.

The Society’s comprehensive election issues platform, prepared out of the many and varied contributions offered by the

Society’s members and committees this year, will continue to be of great interest and a key focus in the lead up to the state election in early 2022.

This year has been a fascinating, busy, engaging, at times challenging, but consistently rewarding experience for me, and one I’m immensely proud and humbled to have had the opportunity to undertake. I’m looking forward to having the chance to thank in person many of those that have provided me and the Society with support and assistance throughout the year at the President’s Christmas Cocktail event in early December, and otherwise hope to see many of you at functions and events as the year winds down. Thank you for your ongoing support of the Society during 2021, and I wish you and your families all a safe, relaxing and happy Christmas and New Year. B

Patience & understanding are virtues during these times MICHAEL ESPOSITO, EDITOR

I

t’s rather fitting that this edition contains a strong focus on animals, as we have relied on the companionship of animals more than ever during the pandemic.

The growing area of law around animals reflects an increasing recognition of the value and rights of animals.

The spike in pet ownership during the pandemic is unsurprising but it naturally carries the risk of more animals being mistreated in numerous ways, including being neglected, abused, or being collateral damage in broken relationships.

But mostly, pets bring joy, they encourage exercise, and they are great for helping humans to socialise with each

other. They have been a source of comfort in what has been another extremely challenging year.

With COVID-19 stubbornly resisting all our best efforts to suppress it, 2021 has been a real test of resilience.

We all hoped that things would go back to normal this year, but Covid has continued to wreak havoc around the world, and SA, which has by in large kept the virus at bay, now faces a surge in cases as we open up our state, and contend with the real prospect of widespread disruption to our Christmas plans due to the quarantine and isolation guidelines currently in place.

While this has been another difficult year for the profession, we have collectively risen to the occasion, earnt a holiday and are now looking forward to a long overdue return to something resembling business as usual.

As we approach what I hope will be a holiday season spent with family and friends, we would all do well to remember that many people are struggling, scared, and uncertain as the virus and the attendant mandates and restrictions still form a dark cloud over our lives. So let’s be kind to one another (including our animal friends) and try to conquer this thing once and for all. B December 2021 THE BULLETIN

5

FROM THE CONDUCT COMMISSIONER

Overview of the LPCC Annual Report GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

I

recently presented my annual report for the financial year ended 30 June 2021 to the Attorney-General and the Chief Justice. Once the Attorney has tabled it in Parliament, it will be available on my website (at lpcc.sa.gov.au).

In the expectation that not everyone in the profession will spend as much time as they should reading my annual report, I thought I should just take this opportunity to mention a few things that are highlighted in the report that are in my view particularly relevant and important.

From 1 November 2020, complainants have had to pay a fee of $110 (including GST) before I will consider their complaint. There are though a number of circumstances in which I will, or may, waive the payment of that fee.

The introduction of that fee paying regime has in my view been the main, if not the sole, reason for complaint numbers reducing from over 500 on average per year to just over 400 in 202021. And I now expect complaint numbers from now on will be less than 400 per year.

The reduction in complaint numbers has enabled me to reduce my staff numbers without impacting too much on the way in which we deal with complaints.

The expense incurred in running my office has reduced from $4.3m in 2017-18 to just under $4m in 2020-21, and my budget for this current financial year is just over $3.6m.

During 2020-21, I made 45 findings of misconduct – 33 of unsatisfactory professional conduct and 12 of professional misconduct. I also laid 2 charges against 1 practitioner in the Legal Practitioners Disciplinary Tribunal.

That number of findings of misconduct is considerably higher than in previous years. In 2019-20, I made 31 such findings and also laid charges against 4 practitioners). In 2018-19 it was 22 findings and 8 charges, and in 2017-18 it was 21 findings and 7 charges.

A significant contributor to the increased number of misconduct

6 THE BULLETIN December 2021

findings was my findings in relation to practitioners who had failed to comply with their costs disclosure obligations under Schedule 3 of the Legal Practitioners Act (Act). There were 8 such findings during 2020-21. I refer the profession to my article about those obligations and the way I view them in the April 2020 edition of the Bulletin.

It is also perhaps worth me summarising the conduct that resulted in my other misconduct findings in 2020-21: • a lack of courtesy in correspondence; • failing to pay superannuation for the firm’s employees; • using a costs agreement that was legally incorrect and potentially misleading in relation to the firm’s entitlement to increase its costs if the client complained about its fees or asked for an itemised account; • having a conflict when advising a client who had a number of different capacities in relation to a deceased estate; • misleading a client as to whether a judgment debt had been obtained in recovery proceedings; • threatening action against another party without having instructions to do so; • failing to act on a client’s instructions in a sufficiently timely fashion, which led to the client terminating the firm’s instructions – and then billing the client for the work that was done (despite it being of no use to the client) and filing a credit default entry when the bill wasn’t paid; • failing to administer and distribute a deceased estate in a timely fashion; • providing mortgage financing services in contravention of the Act; • commencing to practice as an Incorporated Legal Practice without giving notices required under the Act; • acting for two executors of an estate, and then acting for one against the other despite then having confidential information about the other;

• • •

•

• • • • • • • • •

•

• •

having direct contact with the client of another practitioner, in breach of the ASCRs; allowing a client to view certain documents despite a court order requiring them to be destroyed; preparing a revocation of a Power of Attorney and a new Power of Attorney without having obtained instructions direct from the client to do so or assessing her capacity; misinterpreting a Will, maintaining that incorrect interpretation despite viewing advice to the contrary, and charging for that incorrect work; charging a fixed fee up front for certain work that was to be done, and then not doing it; obtaining a report for a client without instructions to do so, and without first obtaining a fee estimate; failing to resolve an outstanding trust account balance within a reasonable time; failing to progress a client’s claim within a reasonable time; failing to comply with undertakings given to the Law Society as part of a “low income fee earner” application; failing to comply with Court orders and to appear at hearings; failing to comply with various employment obligations; failing to comply with my orders; in relation to an estate of which the practitioner was the executor, charging fees without being authorised to do so, charging for travel expenses without being entitled to do so, breaching fiduciary duties to the beneficiaries, and failing to maintain adequate records of instructions; backdating a letter, misleading the other party about it, and blaming a junior employee for the “need” to do so; failing to maintain a trust account despite receiving trust money; and failing to administer an estate in a timely fashion. B

ANIMAL LAW

Animals and intervention orders: tree hugging nonsense or natural evolution of domestic violence laws?

RONAN O’BRIEN AND DIANA THOMAS, ANIMAL LAW COMMITTEE

T

he statistics don’t lie. The link between domestic violence and animal abuse is well known with some studies showing 53% of women escaping domestic violence report their pets were harmed and 35% state they delayed seeking refuge out of concern for the welfare of their pet.1 The Royal Commission into Family Violence in 2016 heard testimony from numerous victims illustrating how animals are often used in coercive control:2 • Once he cut the head off my mother’s pet to ‘teach her a lesson’.

• He regularly beat – and I mean beat – the shit out of our dogs.

• He killed my animals.

• He would say to me, ‘Here’s your precious dog, this is what you do to me’, and pretend to snap her neck.3 Animal abuse cases, often prosecuted by state-based RSPCAs, regularly involve an element of domestic violence.

• In Bond v RSPCA4 the appellant was fighting with his girlfriend. During the argument, he picked up her dog, slashed its throat and stabbed the dog four times. He then threw the bloodied body of the dog in the bin.

• In a 2019 ACT case5 CCTV footage shows the abuser smiling as, instead of feeding his ex-girlfriend’s dog, he punched, kicked, and hit the animal with a shovel for 20 minutes. The dog was euthanised due to its injuries.

ABUSED ANIMALS TREATED AS DAMAGED PROPERTY Animals are specifically mentioned within the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) regarding examples of emotional or psychological harm:6

8 THE BULLETIN December 2021

…an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following: causing the death of, or injury to, an animal.

The legislation allows for intervention orders to be issued for the protection of a person if it is “reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person.”7 Whilst the above clauses show there can be preventative measures put in place for the safety of a protected person, the current legislation is not specific in its ability to protect the actual animals that are at risk of abuse.

Given that animals are regarded as property in SA, it is possible for animals to fall within the provisions of the Act that state:8 An act is an act of abuse against a person if it results in or is intended to result in— damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.

Further, given the proprietary status of animals, the following intervention terms within the Act may be relevant to protecting specified animals:9 • Prohibit the defendant from damaging specified property; • Prohibit the defendant from taking possession of specified personal property reasonably needed by a protected person; • Require the defendant to return specified personal property to a protected person.

Specifying animals as requiring protection Rather than implying that animals may fall within the preventative measures of

the Act used to protect property, South Australia could look to other jurisdictions that have specifically identified animals as requiring protection.

The NSW parliament addressed this problem in March 2021 by specifically recognising the intersection between animal abuse and domestic violence in their Crimes (Domestic and Personal Violence) Act 2007.10 Every apprehended violence order in NSW is now taken to specify that the defendant is prohibited from harming an animal that belongs to or is in the possession of the protected person with whom the protected person has a domestic relationship.11 Victoria has taken a further step forward, specifically recognising that the animal threatened with harm may not necessarily be a pet of the victim. Their definition of family violence includes: “causing or threatening to cause the death of, or injury to, animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.”12 This overcomes circumstances where an abuser may obtain for themselves a new animal with the intent to threaten or coerce the protected person, or indeed circumstances where they may threaten to harm a stray animal or wildlife.

In Queensland, as a condition of a domestic violence order, the court may prohibit the respondent from possessing a thing used, or threatened to use, in committing domestic violence.13 Whilst the legislation extends the definition of “things” to include animals, this would not prevent a perpetrator from obtaining a new animal to harm as the restriction

ANIMAL LAW

only applies to the animal used within the alleged offence.

The way forward Along with the measures introduced interstate, South Australia could consider further legislative amendments to prevent a perpetrator of domestic violence having immediate access to an animal to threaten harm.

In circumstances where an animal has been threatened or harmed, a condition of an intervention order could be that the defendant is forbidden from being the owner of any animal. Further, the definition of “owner” should include “a person who has the custody and control of the animal” to be consistent with the definition of owner within the Animal Welfare Act 1985 (SA). This prevents scenarios of

defendants attempting to avoid ‘ownership’ of an animal by simply registering the animal in another person’s name.

The correlation between cruelty to animals and domestic violence is increasingly being recognised and greater legislative measures should be implemented to ensure the safety of animals in the same vein as protecting partners and children escaping violence. B

3

4 5

6 7 8

Endnotes 1 Is there a link between Domestic Violence and animal abuse? RSPCA 8.10.2019, https:// kb.rspca.org.au/knowledge-base/is-there-a-linkbetween-domestic-violence-and-animal-abuse/ 2 Royal Commission into Family Violence – Final report (March 2016), http://rcfv.archive. royalcommission.vic.gov.au/MediaLibraries/ RCFamilyViolence/Reports/RCFV_Full_ Report_Interactive.pdf

9 10 11 12 13

https://www.abc.net.au/news/2021-03-01/ calls-for-domestic-violence-pets-legislation-invictoria/13199928 Bond v Royal Society For the Prevention Of Cruelty to Animals (SA) [2011] SASC 19. https://www.abc.net.au/news/2019-10-12/ canberra-man-jailed-for-fatally-beating-dog-withshovel-handle/11595670 Intervention Orders (Prevention of Abuse) Act 2009 (SA) S 8 (4)(d).

Intervention Orders (Prevention of Abuse) Act 2009 (SA) S 6(a).

Intervention Orders (Prevention of Abuse) Act 2009 (SA) S 8 (2)(d).

Intervention Orders (Prevention of Abuse) Act 2009 (SA) S 12.

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 9 (3) (f2).

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 36(c).

Family Violence Protection Act 2008 (Vic) s 5 (2) (e).

Domestic and Family Violence Protection Act 2012 (QLD) s 81.

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December 2021 THE BULLETIN

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RENTING WITH PETS

IN THE DOG HOUSE? RENTING WITH PETS IN SA RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE

F

inding a suitable rental property to call home can be a stressful and difficult process at the best of times, but even more so for a prospective tenant with a pet.

The law concerning pets and the rights and obligations of residential tenants (prospective and existing), landlords, and strata and community title owners can be complex. Below I consider some of the common questions and issues regarding pets in rental properties, by reference to the relevant legislation in South Australia.

WHAT IS A PET? Currently, the term ‘pet’ is not defined in the Residential Tenancies Act 1995. In its submission on the Residential Tenancies (Renting with Pets) Amendment Bill 2020 (the Bill), the Society (informed by the Animal Law Committee) suggested including a definition in the Bill to provide clarity and distinguish ‘pet’ animals from various other animals defined in legislation, in particular assistance dogs and therapeutic animals.1 The Bill was negatived by the Legislative Council on 31 March, 2021.

THE LANDLORD’S DISCRETION? A landlord can refuse a tenancy based solely on the prospective tenant owning a pet, unless the animal in question is a therapy or assistance animal.

An ‘assistance animal’ is a dog that is an accredited assistance dog under the Dog and Cat Management Act 1995 (SA), or an animal of a class prescribed by regulation.2 Pursuant to section 66(e) of the Equal Opportunity Act 1984 (SA), it is unlawful to

10 THE BULLETIN December 2021

discriminate on the grounds of disability by treating a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter.3 This provision will apply in the context of rental property applications. Refusing an application for a rental property on the basis that the applicant has an assistance animal and that animal is to be kept on the rented premises is unlawful.

A ‘therapeutic animal’ is an animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability, or an animal of a class prescribed by regulation.4 It is unlawful to refuse an application for accommodation (unless the refusal was reasonable in the circumstances of the case) or defer an application, on the ground that the applicant intends to keep a therapeutic animal at that accommodation.5 Depending on the property title, there may be considerations other than the landlord’s discretion which dictate whether a pet can be kept at the premises.

If the rental property is strata titled, animals (except for therapy or assistance animals)6 may not be kept without the strata corporation’s consent.7 For rental properties on community title, the individual by-laws of the community title corporation will state whether the consent of the corporation is required to keep an animal (noting therapy and assistance animals are excepted8 and by-laws may not unfairly discriminate against the ‘owner’ of a pet).9

Pets are generally accepted in Housing SA properties provided they are suitable for the accommodation and the tenant undertakes the animal will not: • Disturb the neighbours with excessive barking • Be a nuisance or annoyance to the neighbours • Cause danger to any other person by wandering unsupervised • Is restrained on a leash when any person authority by Housing SA is on the premises • The property and yard are kept clean, tidy and free of animal waste.10

SHARE HOUSES & ROOMING HOUSES The obligations of a rooming house resident set out in the Residential Tenancies Act 1995 (SA) include not keeping an animal without the consent of the proprietor.11 In addition, it may be prudent (not to mention courteous) to consult the other residents in the house and obtain their consent for the pet to join the household.

Introducing a pet to the household without the consent of other residents may expose the pet owner to risk. What if another resident is allergic to the pet and suffers a serious skin reaction and breathing problems? The most pressing argument in the share house may quickly pivot from whose turn it is to do the dishes or clean the bathroom to who is or is not liable for a claim from the allegedly injured resident for personal injury and resulting economic loss.

RENTING WITH PETS

AS QUIET AS A MOUSE - KEEPING A PET IN BREACH? Existing tenants may be served with a breach notice if a pet is discovered and the tenancy agreement specifically states ‘no pets’.12 A landlord could also make an application to the South Australian Civil and Administrative Tribunal seeking termination of the residential tenancy and an order for possession of the premises, alleging that the tenant has caused or permitted a nuisance or an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises.13 Pointon v Champion & Champion14 is a tragic example of just how badly breach situations can end. In this case, the tenant kept a pet dog on the premises in breach of the tenancy agreement. The landlords failed to give notice of intention to enter the property. When the landlord and a tradesperson entered the property, the pet dog escaped. Sadly, the dog was later struck by a vehicle and died. The Tribunal found that the landlords were not liable to pay compensation for the death of the dog and awarded compensation to the tenant in the amount of $200 in respect of the landlords’ breach of the tenancy agreement (above, and on one other occasion).

A “PET BOND”?

A landlord cannot require more than one bond for the same residential tenancy agreement.15 A landlord could

however decide to charge a higher bond in anticipation of pet damage as long as the bond does not exceed the relevant limit permitted under the Residential Tenancies Act 1995 (SA).16

CONCLUSION The special place that pets hold in people’s lives should not be underestimated, and it follows that laws regulating pets and renting with pets in particular can have significant impact. For example, victims of domestic violence often delay leaving abusive circumstances due to a lack of available pet friendly accommodation and a fear the pet will be subject to violence and abuse after the victim has left.17 In this regard, one of the objectives of the ‘Safe Kennels DV Project’ of the RSPCA South Australia is to advocate for an increase in pet friendly rental accommodation.18 Each of the States and Territories have approached the challenge of striking a balance between the position of pet owners and the rights of landlords and neighbours differently.19 As recently as 14 October, 2021, Queensland passed the Housing Legislation Amendment Bill 2021, a Bill which includes reforms aimed at encouraging more pet friendly rental accommodation and providing a framework for negotiations about renting with pets. Whether legislative reform ultimately occurs in South Australia remains to be seen, but it is clear that issues concerning the resident pet are here to stay. B

Endnotes 1 https://www.lawsocietysa.asn.au/pdf/ L161120toHonMarkParnellreResidential.pdf 2 Dog and Cat Management Act 1995 (SA), s 5 3 Equal Opportunity Act 1984 (SA), s 66(e).

4 Ibid s88A. Note ‘therapeutic animal’ does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat Management Act 1995 (SA) or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995 (SA).

5 Ibid s 88A. 6 Strata Titles Act 1988 (SA), s 19(4)(c), (d).

7 Strata Titles Act 1988 (SA), Schedule 3, article 4.

8 Community Title Act 1996 (SA), s 37(1)(d), (e).

9 Community Title Act 1996 (SA) s 38(1)(b) 10 https://www.sa.gov.au/topics/housing/publicand-community-housing/tenants/pets-inhousing-sa-properties 11 Section 105R(1)(b).

12 Residential Tenancies Act 1995 (SA), s 80.

13 Ibid s 90.

14 [2015] SACAT 13 (6 October 2015).

15 Residential Tenancies Act 1995 (SA), s 61(1)(a).

16 Ibid s 61(1)(b).

17 Renting with pets landlord fact sheet (www. sa.gov.au) 18 Safe Kennels DV project - RSPCA South Australia (rspcasa.org.au) 19 The Residential Tenancies Act 1997 (ACT), Residential Tenancies Act 1997 (Vic) and Residential Tenancies Act 1999 (NT) provide processes which are arguably more ‘pet friendly’, where tenants give notice or seek consent of the landlord and the landlord has a period within which to make an application to refuse or object. Cf Residential Tenancies Act 2010 (NSW), Residential Tenancy Act 1997 (Tas), Residential Tenancies Act 1987 (WA) and Residential Tenancies Act 1995 (SA). Queensland is in the midst of legislative reform – see the Housing Legislation Amendments Bill 2021 and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

December 2021 THE BULLETIN

11

Q&A

Know Your Council Member: Melanie Tilmouth The Bulletin spoke to Melanie Tilmouth, who was recently appointed Vice President (Female) of the Law Society for 2021-22, about her career to date, the value of giving back to the profession, and the burning issues in the law that she thinks need to be addressed.

Can you please give a brief overview of your career to date? am a Family and Divorce Senior Solicitor working at Resolve Divorce Lawyers.

I initially undertook my clerkship with Tony Kerin, who was then at Johnston Withers and it was Tony who sparked my interest in practice, for which I will be forever grateful.

I then worked for a medium sized firm firstly in one of their county offices before moving to their city office a few years later. I always recommend working in the country to graduate lawyers. It is such a fantastic way to have immediate, handson experience and work out where your passion lies without being pigeon holed early on in your career. I slowly gravitated towards family law and it was then that I realised that I wanted to be mentored to refine my skills and I moved to work within Jane Miller’s family law team in a large firm. The resources of a large firm allowed us to work on very interesting and complex matters and Jane was such an inspiring leader and continues to be a great mentor. When Jane was called to the bar I then moved to my current position.

I

What drew you to a career in law?

Initially, I chose to study law in conjunction with a degree in international studies with the hope of a career in international diplomacy. It was a requirement of my degree at Flinders University that I undertake a clerkship. My clerkship under supervision of Tony Kerin was transformative. He sparked my interest in practice and helped me understand that

12 THE BULLETIN December 2021

legal practice is being in the service of others and your community.

What drew you to your current workplace/area of law?

Early on in my career I had no in interest family law but working in general practice in the country meant that I had no option but to give it a go. I then found it so rewarding to help people at some of the most challenging times of their life, particularly given that the decisions I helped them make could have such significant impact on their future.

I was drawn to working at Resolve Divorce Lawyers as it was female led with my director recently having returned from maternity leave like me. The firm sees the opportunity to improve the way in which clients experience family breakdown. I also am a strong believer in the firm’s philosophy that the law is only a part of the puzzle of family breakdown and you need to help your client build a team of support people around them such as psychologists, financial and other advisors to support them to help them achieve their best outcome.

Why did you nominate for Council?

When I began practice in the country, I felt disconnected from the profession so I joined the Young Lawyers Committee (YLC) as a way of reconnecting. This was the start of my journey with the Law Society and when I decided to step down at co-chair of the YLC I wanted to continue to remain closely connected with the profession, and Council felt like a natural step. I feel strongly about giving

Melanie Tilmouth

back to the profession, supporting each other and the community and Council provides those opportunities.

What have you got out of being a Council Member?

I was gained a much deeper understanding of various functions of the Society and the significant amount of work it does for the profession. There is momentous amount of work that goes on behind the scenes. I have been able to connect with other members of the profession, outside my area of practice, which has had positive impact personally and professionally.

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

Some of the key challenges facing the profession include: • The ongoing under funding of the justice system both at a state and federal level.

Q&A

• Up-skilling lawyers and graduates as the profession evolves. It is no longer enough to know the law. You need to be adequately equipped to provide excellent service to your clients.

• The retention of women beyond their early 30s in the law and particularly in leadership roles.

• Meeting the challenges that have recently under the spot light including bullying, harassment and discrimination within the profession.

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

With the increased reliance on technology and artificial intelligence our role as lawyers is less about explaining the law and more about the journey that our client experiences throughout their legal problem. As lawyers we therefore have great opportunities to be creative and

offer an experience to our clients, not just an outcome.

What key issues do you think the Society should be advocating for?

Key issues that I think the Society should be advocating for include: • Improved workplaces for lawyers that address the bulling, harassment, discrimination and cultural issues that the profession currently faces.

• The underfunding of the justice system at state and federal levels.

• The proper funding of the Fidelity Fund.

• Legislative reform to make it faster and more cost effective for clients in the legal system.

• Access to Justice.

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

Join a special interest committee of the Society to test the water and see if being involved in the society is something for you. There is such a diverse range of committees to be involved it.

I also an advocate for practitioners being kinder to each other. Great outcomes are achieved for our clients through respectful dialogue, not big egos and aggressive communication.

What are some of your interests outside of the law?

I have a 10 week ago old (at the time of print) and a toddler both of whom are keeping me very busy at the moment.

My husband is a winemaker so I have no choice but to enjoy good food and wine.

Yoga and gardening are fantastic antidotes to the busyness that comes with juggling work and parenting. B

New Adelaide Judge of the Federal Circuit and Family Court

D

r Anna Parker has been appointed as a Judge of Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA), Adelaide.

Judge Parker graduated with a Bachelor of Arts (Hons) and Bachelor of Laws (Hons) in 2005 from Monash University.

She has subsequently also completed a Master of Laws from the University of Melbourne and a Doctor of Juridical Science from Monash University.

Judge Parker completed her Articles of Clerkship at Harwood Andrews Lawyers and subsequently practised as a solicitor in the area of family law at specialist family law firms for

approximately 10 years, including as a Partner of a family law firm.

Judge Parker was accredited as a Family Law Specialist by the Law Institute of Victoria in 2011. She was called to the Bar in May 2016 and practised as a Barrister exclusively in family law from 2016 until her commencement as a Senior Judicial Registrar and National Operations Judicial Registrar – Judicial Case Management with the Federal Circuit and Family Court of Australia in December 2020. While a Senior Judicial Registrar with the Court, Judge Parker was a member of the Rules Harmonisation Working Group and played a critical role in the development of the

Court’s new Central Practice Direction and new case management pathway.

Three recent judicial appointments to the FCFCOA announced on 26 November are: • Barrister Richard Schonell SC, appointed to Division 1 of the FCFCOA, Sydney • Barrister Andrew Strum QC, appointed to Division 1 of the FCFCOA, Melbourne • Barrister Dearne Firth, appointed to Division 2 of the FCFCOA, Brisbane These appointments follow the appointment of 11 new judges to the Court that were announced in October. B December 2021 THE BULLETIN

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IN HONOUR

Vale: Mark Glencraig Nicholls MICHAEL RODER QC

Michael Roder QC reflects on the life of his great friend Mark Nicholls (25 August 1963 - 13 August 2021), whose immense contribution to the community belied his genuine modesty.

I

first met Mark Nicholls in 1974 at St Peters College in Adelaide. I was lucky to do so.

During his years at St Peter’s College Mark excelled. He became a school prefect and house captain in 1979.

He had many outside interests, including sport, all outdoor activities, scouting, and the Air Force.

After completing school he told me that he had been shortlisted for a Rhodes scholarship, but as usual he told me this news without a hint that he thought this was anything remarkable.

He did not end up heading to Oxford to study. He commenced a law and economics degree at the University of Adelaide in 1980.

During his time at university he continued to love sports, scouts and was involved in many other activities, not least of all dancing in a trademark enthusiastic style of most of the early 1980s Adelaide discos.

He and his lifelong friend Bill Reid became scout leaders at Rose Park at the age of 18. Bill remembers them speaking with bewilderment about what those parents of the late 1970s were doing entrusting their young ones’ safety to two teenagers on bush hikes and camps.

Mark also worked when he was at university, from a full three-month stint at a silo, hay fever and all, to a volunteer in a mission that he told me was supposed to be located in Vanuatu, but he ended up in Peshawar on the Afghanistan border at the age of 19.

Mark was popular throughout his law school days, not least for his beautifully

14 THE BULLETIN December 2021

written lecture notes, which he was always willing to share. It never worried him if others got a better score on open book exams with the benefit of copying his notes.

Mark graduated in 1985 with an honours degree in law and a degree in economics. He later completed a masters degree in law in 1989 whilst working full time as a lawyer.

On graduating, there were many professional opportunities for Mark. The family law firm run by his mother Illa and father Chris awaited and he practised there for a short period.

But he chose his own path. He gained a position, based in Canberra, as a High Court judge’s associate to His Honour Justice Dawson. It was, and is, highly unusual for a graduate from Adelaide law school to obtain such a position. As a young associate, he undoubtedly impressed Justice Dawson, it being notable that he was given co-authorship credits on a published journal article with the learned Judge in his first year as an associate.

Mark always had the view that he was incredibly fortunate in his life. He would often say that he had already “won the lottery” just by being born here. He was always motivated by “giving something back”.

His opportunity came in the early 1990s, a few years after the Human Rights and Equal Opportunity Commission (HREOC) was established. He was appointed as General Counsel of the Commission.

The principles enshrined and the remedies now provided for in the

Mark Nicholls

Sex Discrimination Act 1984, the Racial Discrimination Act 1975and the Disability Discrimination Act 1993 are now accepted as everyday norms in Australian society but they were not entrenched in that same way when the Commission was established.

Mark was identified by the HREOC as a contributor to the landmark Stolen Generations report “Bringing them Home”, in 1997, and as a contributor to the 1994 HREOC report into the Sex Discrimination Act. Several reports of HREOC published in the 1990s acknowledge his role in overseeing and enforcing the introduction and implementation of the groundbreaking Disability Discrimination Act 1993.

He also addressed the Australian Senate in 1997 on critical amendments to the Human Rights and Equal Opportunity Act, designed to ensure that there were constitutionally enforceable remedies for those who had been subject to conduct that contravened these Acts.

Mark also made submissions to the

IN HONOUR

High Court in a series of ground-breaking human rights cases.

On behalf of the Commission, he intervened on behalf of a Mr Croome, who was seeking to have Tasmania’s laws criminalising homosexuality declared unconstitutional. He also intervened on behalf of a young girl who had been denied refugee status in Australia on the basis that she had already been forcibly sterilised because of her race and therefore had nothing more to fear or worry about.

Yet another example of his work was his intervention on behalf of a disabled worker who had been dismissed because of his disability when minor modifications to his job could have remedied the difficulty.

In all cases, his written submissions - which are still available on the internet reflected his clarity of thought, empathy and basic humanity.

Remarkably, he also found the time whilst doing this to donate his time to be the head of the main New South Wales community volunteer legal service.

I wish I could tell you how Mark reflected on all of this, but I cannot. He never discussed any of these things in any detail with his friends. He was perhaps the least boastful person I have met.

Fortunately a historical record exists of many of his contributions.

In the early 2000s, Mark returned to Adelaide, now with his wife Teresa and a young family. He had worked as a senior lawyer in a large Sydney corporate law firm, but it was not a career for him.

He established his own consultancy for a short time, but most of his working life in this state was spent with One Steel, Arrium and now GFG, the owners of the steel works at Whyalla.

Mark (and the owners) were always concerned about the need for reliable and

MEMBERS ON THE MOVE T

he Honourable Steve Strickland QC wishes to advise the profession that he is returning to private practice as a barrister, arbitrator, mediator, and consultant generally in appeals and first instance trials.

Enquiries as to his availability, fees and generally can be directed to Campbell Chambers.

Email: admin@campbellchambers.com.au; stricklandqc@gmail.com.

Phone: (08) 8110 4900

cheap energy and the need to embrace renewable energy.

As his brother Chris recalls, Mark came up with the idea of creating hydroelectric power by storing and pumping water from a disused mining pit.

That idea was embraced years later

by GFG as part of their overall plan, still being implemented today, to develop a carbon neutral plan and to contribute to the greening of Whyalla. The latter part of his working life was devoted to seeing that project completed, until serious illness intervened. His legacy to the town of Whyalla and to its principal business will remain for many decades.

Mark Nicholls was a great friend and lawyer. His achievements reflected what he valued.

Mark is survived by his wife Teresa, and children Georgia, Sam and Max. He never got tired of telling me how much he loved them. B

MEMBERS ON THE MOVE

HON STEVE STRICKLAND QC December 2021 THE BULLETIN

15

DISABILITY JUSTICE

More collaboration between legal profession and disability community key to breaking down barriers CATIA MALAQUIAS

W

hen my son Julius was born 12 years ago, my husband and I welcomed him into the world in the same way we had welcomed his older sister, as a precious child with a clear future of possibilities.

Our approach didn’t change when we were told the next day, “We believe that your baby has Down syndrome”, but suddenly looking through a very different prism, clouded with doubt, fear and confusion, his future possibilities were obscured.

I didn’t actually know anyone with Down syndrome, and like most people of my generation, I didn’t grow up attending school and getting to know children with disabilities; instead, I had good oldfashioned myths and stereotypes, prejudice and low expectations to refer to. But prejudices are learned, and they can be unlearned, and I’ve been trying to unlearn mine ever since then.

Today, Julius is a happy, thriving child.

He is no longer just a little brother, but a big brother as well. And next month he will graduate from year 6 at our local Primary School, leaving his younger sister behind and joining his big sister at our local high school.

Parenting Julius is not particularly different to parenting his sisters; there are joys and challenges for each of them and each is their own person, needing some of the same things and also some different things.

The real difference in parenting Julius is in the way that my husband and I have had to advocate for him, to protect his rights and to ensure that he has the same opportunities for participation as his sisters and most children their age; starting with his fundamental human

16 THE BULLETIN December 2021

right to inclusive education - learning in a regular class at his neighbourhood school with non-disabled peers and disabled peers. A right that is subconsciously and consciously resisted by many who assume or think his place should be a “special” place - for “special” people – starting with segregated “special” education.

We have certainly faced those challenges along the way, but with my husband and I being lawyers, it’s fair to say that Julius has a level of parental-school engagement, rights-based advocacy and socio-economic privilege that many other children with disability do not.

The fact is, many Australians with disability, who represent approximately 1 in 6, or 4 million of us, continue to experience significant discrimination, exclusion and victimisation in a variety of ways. In 2019 the Australian Human Rights Commission reported that 43.7% of complaints were about disability discrimination. There are other statistics in relation to unemployment and poverty, sexual abuse and incarceration, in particular for First Nations people with disability, that are even more shocking.

A Royal Commission established by the Federal Government is currently examining violence against, and the neglect, abuse and exploitation of, people with disability.

As a lawyer, I placed a high level of trust in the legal system to deliver justice to people with disability, like my son, through equality of rights and protections against discrimination. But as a parent and an advocate, I came to understand the different ways in which disability can be used to circumvent people’s rights and to realise that, too often, laws either fail to protect people with disability from

discrimination or, in many cases, they actually legitimise the denial of equal rights.

A few years ago, I met George Newhouse, the CEO and Principal Solicitor of the National Justice Project, at a human rights event in Sydney. I was aware of the important work of the National Justice Project in using legal action to break down barriers to justice and welcomed the opportunity to talk to him about some of these problems and the challenges that Australians with disability continue to face in realising some of the most basic human rights: access to education and health, reproductive rights, accessibility including to housing and public spaces, restrictive practices, denial of legal capacity and incarceration.

So, this year, when George asked me to be involved in the National Justice Project’s “Law Hack 2021: Disability Justice” as the Lead Mentor for Advocacy, I jumped at the chance. I couldn’t wait to be involved and was excited about the possibilities.

As Scott Avery, an Indigenous disability advocate and senior lecturer at Western Sydney University, said of the event, “We’re going to change the world and we’re going to disrupt the system.”

“Law Hack 2021: Disability Justice” didn’t disappoint. The event was held across two days on 14 October and 22 October. It brought together bright minds, passionate hearts and brilliant professionals, around the idea of strategic litigation as a tool for legal reform or as a potential catalyst to publicly expose inequality or unfairness, create public debate, empower people with disability to have a voice in that debate and build pressure for change.

DISABILITY JUSTICE

Close to 50 participants, making up 10 teams convened from the legal, community, academic and advocacy sectors, came together to hear speakers with disabilities, participate in workshops on strategic litigation and disability advocacy, share ideas and inspire one another to act by participating in a ‘pitch day’ event where they presented their solutions to one of five “problem statements”, before a panel of esteemed judges with lived experience of disability.

Natalie Wade, the founder of Equality Lawyers and Vice President of Australian Lawyers for Human Rights chaired the judging panel which also included former Federal Disability Discrimination Commissioner Graeme Innes AM, Rob Silberstein, Advisory Board Member, National Justice Project, Margherita Coppolino, President, National Ethnic Disability Alliance and Scott Avery.

While the Law Hack was taken online due to COVID-19 restrictions, this turned out to be an advantage in many ways because it allowed for the creation of teams with participants from across the country, working together despite being miles apart.

Collaboration between legal professionals, people with disability and advocacy organisations was at the core of the event, embodying the guiding principle of the international disability rights movement “nothing about us without us”, articulated by Matthew Hall, CEO Arts Access Australia and Law Hack Mentor, in his speech on pitch day.

The National Justice Project team worked with community partners; the Jumbunna Institute for Indigenous Education and Research, the Council

for Intellectual Disabilities, First Peoples Disability Network Australia, National Ethnic Disability Alliance , People with Disability Australia, Women With Disability Australia and Arts Access Australia in developing the “challenge” statements and curating relevant information and materials for the “hack packs”.

I had the opportunity to observe the value of this collaboration first-hand, in my role as Advocacy Mentor assisting the teams to consider how a parallel advocacy strategy can be utilised, together with litigation, to deliver disability justice outcomes.

For example, in exploring the idea for a new emergency services branch to support people with a disability and divert them from the criminal justice system, the winning team of Jessica Pereira, Carolyn Ledinh, Jim Simpson and Fraser Bignell looked to a model that has been implemented overseas based on a standard triple zero phone call to access emergency support. As well as discussing how litigation may be used in making the case for this idea, they explored ways to make it more accessible for people who may not be able to use a standard phone service, such as people who are non-speaking and may be able to access the service via an app instead.

Accessibility was also front-of-mind for the organising team at the National Justice Project, to ensure that accessibly needs were identified and addressed, including by providing written materials, captioning, image descriptions and Auslan sign language interpreters for the event.

While each participant played different roles and brought diverse insights and

expertise, we all shared a common purpose: to use our collective knowledge, wisdom and experience in a range of areas to tackle the injustices facing Australians living with disabilities, by identifying and exploring effective and ground-breaking legal solutions.

I hope some of the ideas canvassed during “Law Hack 2021: Disability Justice” will be explored further, and I look forward to seeing where they may lead.

But, most importantly, I hope the event has paved the way for more to come; much-needed increased collaboration between the legal profession and the disability community, to change laws and government policy, reform systems and challenge and reshape community attitudes that are needed for people with disability to have equal opportunities and improved outcomes.

It will take time, of course, to overcome the insidious legacy of centuries of exclusion, segregation and marginalisation of people with disability, which legacy continues to constrain attitudinal change and public policy - but the world we build for tomorrow will be born of the ‘disrupting’ actions we take today, if we are to ensure that the prism to future possibilities for people like my son Julius will not remain clouded.

Catia Malaquias is a lawyer and human rights advocate. She is the Founder and Director if non-profit disability inclusion organisation Starting with Julius, and Co-Founder of several organisations including All Means All – The Australian Alliance for Inclusive Education; School Inclusion Parent Network Project; and Global Alliance for Disability in Media and Entertainment. She is also a Director of Attitude Foundation; and Down Syndrome Australia. B December 2021 THE BULLETIN

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FEATURE

THE NEED TO THINK OUTSIDE CITY COMMERCIAL PRACTICE: ENCOURAGING LAW STUDENTS TO WORK WITH REGIONAL AND ABORIGINAL COMMUNITIES DR DAVID PLATER, CHLOE WINTER, CHARLOTTE ORDYNSKI AND CAYLEIGH STOCK1

T

he legal profession in both private and public practice, despite reports of an oversupply of law graduates, has difficulty in recruiting and retaining lawyers and legal professionals in rural, regional and remote (RRR) areas,2 including in South Australia.3 Many RRR law firms and community legal agencies (including those working with Aboriginal communities) continuously struggle to find suitable lawyers to fill vacancies when they arise and are impeded by the drain of corporate knowledge caused by a constant staff turnover.4 Law students generally consider RRR legal work to be somehow ‘inferior’ to city commercial practice.5 Students are typically unaware of the nature, diversity and quality of rural and regional practice. Students are also often unaware about the value of working with Aboriginal communities.

On 15-16 July, 2021, as part of an Adelaide Law School initiative to address these issues, eight diverse Law School students; Chloe Winter, Mitchell Dunn, Arissa Robles-Rangel, Christina Akele, Charlotte Ordynski, Izak Coombe, Jack Woolford and Cayleigh Stock, joined a trip to Port Pirie and Port Augusta led by Dr Mark Giancaspro,6 Nadia Hess7 and Dr David Plater.8 The aim of the trip was for students to hear firsthand about working with regional and Aboriginal communities and to encourage students to think beyond city commercial practice and consider working with RRR and/or Aboriginal communities.9

18 THE BULLETIN December 2021

This trip proved eye opening. As one student, Charlotte, summarised: The trip provided more than the opportunity to network with our peers and legal professionals, but the ability to see a future of legal practice beyond the typical corporate pathway, and see the ability to make a difference and be a meaningful part of a community.

THE PROBLEMS There are regular reports of the oversupply of law graduates in Australia and the difficulty in finding employment.10 There are even reports of law graduates ‘so desperate to kickstart their careers they’re

willing to pay big bucks to land their first job’.11 The former Prime Minister, Malcolm Turnbull, advised: ‘I think too many kids do law.’12 One law student even said: ‘It is near impossible just to get an unpaid clerkship.’13 However, such negative perceptions do not convey the whole picture.14 As early as 2009, a Senate Report noted the lack of lawyers willing to work in RRR areas as a ‘fundamental problem’.15 Both community legal services, as well as RRR private practices, struggle to attract and retain staff.16 There is an acute shortage of lawyers in regional and rural Australia,17 including those working with Aboriginal communities.18 Aboriginal legal services also face challenges regarding their

FEATURE

ability to attract and retain staff.19 These trends are likely to only intensify over coming years as a large proportion of the senior legal practitioners in RRR areas have indicated an intention to retire,20 compounded by many junior lawyers who have indicated an intention to make RRR practice a short-term career option only.21 Addressing issues around the attraction and retention of lawyers in RRR areas is important for two reasons: first, having legal practitioners living and working within RRR communities is essential to sustainable, healthy communities.22 ‘Once a community loses its doctor, lawyer, accountant, it becomes difficult to sustain a vibrant, healthy community.’23 Secondly, lawyers living in these communities play a vital role to facilitate access to justice for the local community. In addition, lawyers are important to RRR areas as they carry out a large amount of legal aid work, more than their city counterparts. They also undertake significant pro bono and voluntary work within their communities.24 The shortage of lawyers outside of the city is adverse in terms of access to justice for a significant proportion of Australia’s population,25 especially Aboriginal communities.26 There are concerns regarding the considerable levels of unmet legal need – civil, criminal and family – in RRR communities.27 Legal practitioners in these areas undertake a considerable amount of vital legal aid, pro bono work and voluntary community work, and a decrease in the availability of these services is likely to restrict access to justice in these areas even further.28 These issues are compounded for Aboriginal communities which are more likely to experience multiple, intersecting legal problems, including elevated legal need in areas of, among others, crime, civil, government, child protection, tenancy, discrimination, social security, credit and consumer issues, and family law and family violence.29 These ‘acute’ access to justice issues for Aboriginal communities are ‘heightened in RRR areas where service gaps are particularly severe’.30 The access to justice gaps in RRR communities are also telling for victims of family violence.31 ‘It has been acknowledged that better access to legal services and remedies can play an important role in alleviating economic and social disadvantage.’32

These concerns also arise in South Australia. Morry Bailes, a leading local lawyer, has observed: There is a legal black hole in regional and rural South Australia. It’s a problem facing the entire country. About 30% of people live outside a major Australian city… Yet only 10.5% of the legal profession work in these regions.

Little wonder we have a crisis in our justice system for rural and regional residents. These statistics… paint a truly disturbing picture of the difficulty regional people have in accessing lawyers or even recognising that they have a legal problem.33 The typical Law School course does not actively prepare or promote law students to work with RRR34 or Aboriginal communities. There is often a perception amongst law students that RRR legal work is ‘inferior’ to city commercial practice.35 Such perceptions of the quality and breadth of RRR legal work are unjustified,36 but are widely held.

As one Brisbane law student in a study remarked: ‘There’s kind of a top tier or nothing approach which is incredibly frustrating …’.37 Another law student referred to students’ ‘fixation on the big glass building in the city …’ and their own belief that ‘the city sets the pace of legal life.’38 As a young lawyer has observed, city practice is typically the ‘most commonly marketed avenue presented to [students] at university and any other options have an unnecessary and unspoken stigma attached ... there is a common misconception that anything other than a corporate role in a top tier city firm is not considered real legal work.’39 These comments are also applicable in a South Australian context.

Indeed, law students are largely unaware that working with RRR communities or Aboriginal communities is a viable, diverse and worthwhile employment option as a 2012 Queensland study found.40 Whilst there are challenges such as distance and travel,41 there are many benefits in rural and regional legal practice, notably the diversity and breadth of the work and quality of the lifestyle.42 As Paul Boylan, a leading Port Pirie lawyer, has said:

You get much more responsibility, much earlier than you otherwise would.

I had one lawyer who by the second anniversary of her admission to the Bar and starting to practise law, she’d been the instructing solicitor on two appeals to the Full Court of the Family Court, two to the Full Federal Court and she’d been instructing in the High Court as well. That’s unheard-of in the city.43 There is a need to encourage law students to think of life outside city commercial practice and learn about the quality and breadth of both regional life and legal practice.44

THE TRIP The law student engagement trip was funded by a one off Faculty of Professions teaching grant.

On 15 July, 2021, the trip was made very welcome by the ALRM and Umeewarra Radio in Port Augusta and heard from Charlie Jackson and other local Elders and members of Aboriginal communities and Rachel Lane and other lawyers from the ALRM. The session highlighted to the students the value and importance of working with Aboriginal communities and crucially ‘making a difference’. Chloe Winter took part in an interview on Umeewarra Radio about working with Aboriginal communities.

Chloe said: ‘It was very valuable to get to interact with members of a community on a deeper, less superficial level, and have genuine conversation about the need for change with those who know it firsthand.’

Cayleigh described this as a powerful and invaluable session in which everyone took part and was not an experience that could have been replicated over Zoom.

‘The informal round table discussion was key to the upfront discussion with the Elders who shared cultural practices and moving first-hand experiences of generational trauma.’

Charlotte elaborated on this session: Speaking to Charlie Jackson and the other Elders was an eye opening and powerful experience. The stories he shared with us really highlighted the major disconnect between Aboriginal Law and Western Law. Charlie described December 2021 THE BULLETIN

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FEATURE

Western Law as having judges, barristers and solicitors but noted that Aboriginal Law has this too, it just doesn’t look the same as it does for Western Law. This was something I had probably rather naively, never considered before and made me question what more can be done to reconcile these two systems of law to operate more harmoniously, rather than one at the expense of another. It was an absolute honour and privilege to have spoken to Charlie and I would love for more students to have this incredible opportunity.

In the evening, the students joined an extended dinner in Port Pirie with local lawyers and the Hon Geoff Brock, the local State MP, and the Deputy Mayor. The quality of regional legal work and lifestyles were highlighted. As Cayleigh said: ‘This dinner continued to highlight the immense value of working within regional communities and the vast opportunities available for young lawyers who are willing to commit.’

On 16 July, the students explored Port Pirie before an extended meeting with Mr Brock MP, to hear about working and living in Port Pirie. Cayleigh noted: ‘His passion and commitment to the community was clear, with locals stopping by to have a chat on the street highlighting Mr Brock MP as first and foremost a community member.’

Students then took part in an interview with the Port Pirie newspaper. Charlotte Ordynski took part in an ABC Radio interview.45 The students were then hosted

by Paul Boylan and John Voumand, leading local lawyers, to learn more about the nature and width of RRR legal practice. The students also heard about the role and ongoing work and regional consultation of SALRI.

THE THEMES The trip proved very successful. Chloe summarised the value of the trip and its wider application: It was a rare experience, not just in the context of the information learnt, and connections made with locals and legal professionals located in the area, but also in the realisation of the immense breadth of legal work available outside of major cities. Regional areas have a lot

20 THE BULLETIN December 2021

of valuable experience to offer to young professionals. Perhaps my greatest realisation following the trip was that there are many options to be considered outside of the traditional path we are encouraged to follow after graduation.

I had not imagined practicing regionally prior to the trip or think I would gain so much personally from the experience.

Life after Law School is a daunting prospect at the best of times, especially with the “unprecedented” pandemic and competition for graduate positions.

The opportunity to go on this trip was important, in helping us remember why we wanted to study law, and our ability to make a difference after all.

The Adelaide Law School and the eight law students would like to thank all who contributed to the trip’s success.46 It is hoped to be the start of an ongoing program. There is no one ‘magic bullet’ to address the problems in attracting and retaining lawyers in RRR areas.47 However, the need to promote RRR practice as a positive long-term career option should be highlighted. There is a need to encourage law students to consider working with regional and Aboriginal communities and to think beyond city commercial practice. B Endnotes 1 Dr David Plater is the Deputy Director of the South Australian Law Reform Institute (SALRI) based at the Adelaide Law School. Chloe Winter is in her final year of a Bachelor of Commerce, and her penultimate year of a Bachelor of Laws at the University of Adelaide. Charlotte Ordynski is in her fifth year of studying Law and has completed a Bachelor of Criminology. Cayleigh Stock is in her second year of studying Law and is also studying a Bachelor of International Relations.

2 Trish Mundy, ‘Attracting and Retaining Lawyers: a Problem for Rural, Regional and Remote Communities’ (2009) 34(1) Alternative Law Journal 32.

3 Morry Bailes, ‘Incentives Needed to Encourage Lawyers to “Go Bush”’, In Daily (online, 31 October 2019), https://indaily.com.au/ opinion/2019/10/31/incentives-needed-toencourage-lawyers-to-go-bush/.

4 Law Council of Australia and Law Institute of Victoria, Report into the Rural, Regional and Remote Areas Lawyers Survey (July 2009) 5-6, 21; Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 2; Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 3, 32-33, 37-38.

5 Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 4-6.

6 Dr Mark ‘Matt’ Giancaspro is a Lecturer at the Adelaide Law School. ‘Matt’ is a native of Port Pirie and passionate about encouraging law students to work in regional communities.

7 Nadia Hess is a PhD student at the Adelaide Law School and is from Port Lincoln. Nadia is also passionate about encouraging law students to work in regional communities.

8 The trip was joined in conjunction with a regional SALRI consultation trip by Brooke Washusen, Holly Nicholls and Anita Brunacci.

9 Christian Cominos, ‘Law Students Encouraged to Come Work in the Country’, The Recorder (online, 20 July 2017), <https://www.portpirierecorder. com.au/story/7348581/the-need-for-lawyers/>; Shari Hams, ‘Law Students Learn about Injustices for Aboriginal People in SA’s Court System’, ABC News (online, 29 August 2021), <https://www. abc.net.au/news/2021-07-30/law-students-learninjustices-aboriginal-people-face/100336256>.

10 See, for example, Liz Burke, ‘Desperate Law Graduates are Apparently Prepared to Pay for their Jobs’, Lawyers Weekly, 3 September 2015, https://www.news.com.au/finance/work/ careers/desperate-law-graduates-areapparently-prepared-to-pay-for-their-jobs/ news-story/3ec2472a2b46780632061664b 9491d2e; Michael Douglas and Nicholas Van Hattem, ‘Australia’s Law Graduate Glut’ (2016) 41(2) Alternative Law Journal 118; Felicity Nelson, ‘New Law Schools May Leave Grads Stranded’, Lawyers Weekly (online), 29 September 2015; Marie Iskander, ‘The Deserving and the Under-Served: a Comment on the Oversupply of Law Graduates, Diversity in the Legal Profession and Access to Legal Representation’ (2017) 5(1) Griffith Journal of Law and Human Dignity 66, 67; Angela Melville, ‘It is the worst time in living history to be a law graduate: or is it? Does Australia have too many Law Graduates?’ (2017) 51(2) The Law Teacher 203; Emma Ryan, ‘Frustration Grows over Unis “Cashing In” on Law Grad Oversupply’, Lawyers Weekly, 19 February 2018, https:// www.lawyersweekly.com.au/sme-law/22768frustration-grows-over-unis-cashing-in-onlaw-grad-oversupply.

11 Liz Burke, ‘Desperate Law Graduates are Apparently Prepared to Pay for their Jobs’, news. co.au, 3 September 2015, https://www.news. com.au/finance/work/careers/desperatelaw-graduates-are-apparently-prepared-topay-for-their-jobs/news-story/3ec2472a2b467 80632061664b9491d2e.

12 Louise Yaxley, ‘Don’t Study Law Unless You Really Want to be a Lawyer, Malcom Turnbull Says’, ABC News (online, 2 February 2018), https://www.abc.net.au/news/2018-02-02/ malcolm-turnbull-says-too-many-kids-dolaw/9387508.

13 Marie Iskander, ‘The Deserving and the UnderServed: a Comment on the Oversupply of Law Graduates, Diversity in the Legal Profession and Access to Legal Representation’ (2017) 5(1) Griffith Journal of Law and Human Dignity 66, 73.

FEATURE

14 See Ibid.

15 Parliament of Australia, Legal and Constitutional Affairs References Committee, Access to Justice (December 2009) [2.104].

16 Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 3, 32-33, 37-38. For particular issues in recruiting and retaining staff in the community sector, see: at 37; Michael Cain and Suzie Forell, ‘Recruitment and Retention of Community Sector Lawyers: Regional differences Within New South Wales’ (2014) 16(1) Deakin Law Review 265. These themes have also emerged in anecdotal feedback to Dr Mark ‘Matt’ Giancaspro and Nadia Hess as well as to SALRI on its regular regional consultation trips, as supported by wider research, notably the Law Council of Australia. See also Law Institute of Victoria and the Law Council of Australia, Rural, Regional and Remote Areas Lawyers Survey (Law Council of Australia, 2009); Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018).

17 See, for example, Law Council of Australia and Law Institute of Victoria, Report into the Rural, Regional and Remote Areas Lawyers Survey (July 2009) 5-6, 21; Damien Carrick, ‘Lawyer Drought’, ABC Law Report, 14 July 2009, https://www.abc. net.au/radionational/programs/lawreport/ lawyer-drought/3071010; Trish Mundy, ‘Attracting and Retaining Lawyers: a Problem for Rural, Regional and Remote Communities’ (2009) 34(1) Alternative Law Journal 32; Trish Mundy, ‘A HECS Rebate? Ways to Attract and Retain Graduate Lawyers in Rural, Regional and Remote Communities’ (2010) 35(2) Alternative Law Journal 99; Suzie Forell, Michael Cain and Abigail Gray, Recruitment and Retention of Lawyers in Regional, Rural and Remote New South Wales (Law and Justice Foundation of NSW, September 2010); Natalie O’Brien, ‘Plea Goes Out For Lawyers, To Be Sure’, Sydney Morning Herald (online, 3 July 2011); Louise Fitzroy, ‘Regional Lawyer Shortage Could Jeopardise Access to Justice Says Law Council’, ABC Rural, 5 November 2015; Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 3, 32-33, 37-38.

18 Melanie Schwartz and Chris Cunneen, ‘Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and Torres Strait Islander Legal Services’, (2009) 7 Indigenous Law Bulletin 10, 19; Law Council of Australia, The Justice Project: Final Report Part 1: Aboriginal and Torres Strait islander People (2018) 39; Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 37.

19 Law Council of Australia, The Justice Project: Final Report Part 1: Aboriginal and Torres Strait Islander People (2018) 39.

20 Law Institute of Victoria and the Law Council of Australia, Rural, Regional and Remote Areas Lawyers Survey (Law Council of Australia, 2009) 5, 11, 14, 21.

21 Law Institute of Victoria and the Law Council of Australia, Rural, Regional and Remote Areas Lawyers Survey (July 2009) 6, 21; Damien Carrick, ‘Lawyer

Drought’, ABC Law Report, 14 July 2009, https:// www.abc.net.au/radionational/programs/ lawreport/lawyer-drought/3071010.

22 Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 2.

23 Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 42.

24 See, for example, Ibid 3, 28-29, 31, 35, 40-41; Law Institute of Victoria and the Law Council of Australia, Rural, Regional and Remote Areas Lawyers Survey (July 2009) 16-17; Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 2.

25 See generally Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018).

26 Law Council of Australia, The Justice Project: Final Report Part 1: Aboriginal and Torres Strait Islander People (2018) 4, 39, 42-43.

27 Maria Karras et al, Law and Justice Foundation of New South Wales, On the Edge of Justice: The Legal Needs of People with a Mental Illness in NSW (2006) 110-113; Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 3, 24-42.

28 Law Institute of Victoria and the Law Council of Australia, Rural, Regional and Remote Areas Lawyers Survey (Law Council of Australia, 2009) 16-17, 21.

29 Chris Cunneen, Fiona Allison and Melanie Schwartz, ‘Access to Justice for Aboriginal People in the Northern Territory’ (2014) 49(2) Australian Journal of Social Issues 219.

30 Law Council of Australia, The Justice Project: Final Report Part 1: Aboriginal and Torres Strait Islander People (2018) 4.

31 Law Council of Australia, The Justice Project: Final Report Part 1: People Who Experience Family Violence (2018) 46-47. Law Council of Australia, The Justice Project: Final Report Part 1: Rural, Regional and Remote (RRR) Australians (2018) 39.

32 Chris Cunneen, Fiona Allison and Melanie Schwartz, ‘Access to Justice for Aboriginal People in the Northern Territory’ (2014) 49(2) Australian Journal of Social Issues 219, 220.

33 Morry Bailes, ‘Incentives Needed to Encourage Lawyers to “Go Bush”’, In Daily (online, 31 October 2019), https://indaily.com.au/ opinion/2019/10/31/incentives-needed-toencourage-lawyers-to-go-bush/.

34 See Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1; Amanda Kennedy et al, ‘Educating Law Students for Rural and Regional Practice: Embedding Place Based Perspectives in Law Curricula’ (2014) 24(1) Legal Education Review 6.

35 Amanda Kennedy et al, ‘Educating Law Students for Rural and Regional Practice: Embedding Place Based Perspectives in Law Curricula’ (2014) 24(1) Legal Education Review 6, 12-13.

36 Amanda Kennedy et al, ‘Educating Law Students for Rural and Regional Practice: Embedding Place Based Perspectives in Law Curricula’ (2014) 24(1) Legal Education Review 6, 13.

37 Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 4.

38 Ibid.

39 K McFarlane, ‘Attracting Graduates to Regional and Rural Australia: A Personal Experience’ (Paper presented at the National Rural/ Regional Law and Justice Conference, Warrnambool, Victoria, 19-21 November 2010) 2.

40 Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 4-6.

41 Amanda Kennedy et al, ‘Educating Law Students for Rural and Regional Practice: Embedding Place Based Perspectives in Law Curricula’ (2014) 24(1) Legal Education Review 6, 11-12.

42 Damien Carrick, ‘Lawyer Drought’, ABC Law Report, 14 July 2009, https://www.abc.net.au/ radionational/programs/lawreport/lawyerdrought/3071010.; Paul Brazier, Elizabeth Lehmann, ‘Cassandra Banks and Sally Davies, ‘The Perks of Going Rural’, Law Society Journal, 1 December 2014, https://lsj.com.au/articles/ the-perks-of-going-rural/.

43 Damien Carrick, ‘Lawyer Drought’, ABC Law Report, 14 July 2009, https://www.abc.net.au/ radionational/programs/lawreport/lawyerdrought/3071010.

44 Louise Fitzroy, ‘Regional Lawyer Shortage Could Jeopardise Access to Justice says Law Council’, ABC Rural, 5 November 2015, https://www. abc.net.au/news/rural/2015-11-05/rural-andregional-lawyer-shortage-threatens-access-tojustice/6915136.

45 Shari Hams, ‘Law Students Learn about Injustices for Aboriginal People in SA’s Court System’, ABC News (online, 29 August 2021), <https://www. abc.net.au/news/2021-07-30/law-students-learninjustices-aboriginal-people-face/100336256>.

Brooke Washusen of SALRI was also interviewed on the local ‘Golden Oldies’ radio morning show.

46 The trips’ participants would like to express their thanks for the support of the Faculty of Professions; Paul Boylan and his colleagues; John Voumand; Rachel Lane, the ALRM and its Port Augusta staff; the Hon Geoff Brock MP; the Deputy Mayor of Port Pirie, Alan Zubrinich; Holly Nicholls, Brooke Washusen and Anita Brunacci of SALRI and Dean ‘Elvis’ Vegas of the Ellen Hotel. A particular thanks to Charlie Jackson and the Elders and members of the Port Augusta Aboriginal communities and Umeewarra Radio for their generous and insightful input.

47 Trish Mundy, ‘“Placing” the Other: Final Year Law Students’ “Imagined” Experience of Rural and Regional Practice within the Law School Context’ (2012) International Journal of Rural Law and Policy 1, 6.

December 2021 THE BULLETIN

21

ANIMAL LAW

Therapy or assistance animals: What’s the difference?

RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE

A

ssistance and therapeutic animals can have a tremendous positive impact on those they serve. The South Australian legal profession has witnessed this impact firsthand through the Canine Court Companion project, an initiative of the Office of the Director of Public Prosecutions, in partnership with Guide Dogs SA/NT. During his time in active service, Zero, South Australia’s inaugural court companion dog, assisted many victims and vulnerable witnesses and became a much-loved staff member at the Office of the Director of Public Prosecutions. Some of the common questions about assistance and therapy animals are answered below.

WHAT IS THE DIFFERENCE BETWEEN AN ASSISTANCE ANIMAL AND A THERAPEUTIC ANIMAL? A therapeutic animal can be any animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability, or an animal of a class prescribed by regulation.1 For example, until January of this year Canberra was home to a herd of therapy Alpacas who regularly made visits to vulnerable persons including those with severe mental trauma.2 Anecdotally, post-COVID 19, many Strata and Community Title residences 3 are seeing previously barred animals being allowed to stay, with their therapy animal status confirmed by a doctor’s letter.

For the purposes of the Disability Discrimination Act 1992 (Cth) (‘DDA’), an assistance animal is a dog or other animal:4 a. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or b. accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or c. trained:

22 THE BULLETIN December 2021

i. to assist a person with a disability to alleviate the effect of the disability; and ii. to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

What constitutes appropriate “standards of hygiene and behaviour” for an assistance animal in a public place is not defined in the DDA and is open to interpretation.

Pursuant to the Equal Opportunity Act 1984 (SA), “assistance animal” means a dog that is an accredited assistance dog under the Dog and Cat Management Act 1995 (SA), or an animal of a class prescribed by regulation.5 The Dog and Cat Management Act 1995 (SA) defines “assistance dog” as a dog trained and used for the purpose of assisting a person who is wholly or partially disabled and includes a dog undergoing training of a kind approved by the Board for the purposes of this definition.6

HOW DO DOGS QUALIFY TO BE ASSISTANCE DOGS? An assistance animal must meet the requirement of ‘accreditation’ to fall within the definition of ‘assistance animal’ in the legislation. In South Australia, only prescribed accreditation bodies may, on application, accredit a dog, or renew the accreditation of a dog, as an assistance dog.7 Prescribed accreditation bodies include the Dog and Cat Management Board; The Royal Society for the Blind of SA Inc; the Guide Dogs Association of South Australia and Northern Territory Inc; Lions Hearing Dogs Inc; and any other person or body declared by regulation.

DO OWNERS HAVE TO CARRY A COPY OF THE ACCREDITATION? CAN I REFUSE ENTRY OR ASK THEM TO LEAVE IF THEY CANNOT PRODUCE ACCREDITATION? Owners can be asked to produce evidence that the dog is an assistance dog.

It is an offence to claim that a dog is an assistance dog unless it is accredited under

SA’s first canine court companion Zero

the Dog and Cat Management Act 1995 (SA) or covered by the DDA. With various approaches to accreditation and regulation of assistance animals in each jurisdiction, it is not difficult to see how confusion and complaints can arise, particularly for people travelling interstate with their assistance dogs:8 • Victoria – an Assistance Animal Pass is required and issued by Public Transport Victoria permitting assistance animals to travel on public transport.9 • Western Australia – The Public Transport Authority doesn’t require permits for assistance animals to travel on public transport. There is local government legislation providing for animals to have an ID card and a dog coat/harness.10 • Queensland – A Handler’s Identity Card is valid for 5 years allowing travel on public transport. Also, Translink (South East Queensland Transport Authority) issues an Animal Pass provided the dog meets certain standards of behaviour in public.11 • South Australia – The Dog and Cat Management Board issues a Disability Dog Pass that is valid indefinitely.12 • New South Wales – An Assistance Animal Permit is required for access to public transport; however, Guide dogs and Hearing dogs do not require a permit. The permit must be renewed annually.13

ANIMAL LAW

•

Australian Capital Territory, Northern Territory and Tasmania – no system of accreditation exists and no specific passes are issued.

Reaching a decision on whether the evidence demonstrates the animal meets the definition of ‘assistance dog’ and taking action to refuse entry or ask the person and the assistance animal to leave may have legal consequences, as the cases below demonstrate: Mulligan v Virgin Australia (2015)14 involved a DDA claim. Virgin refused to allow Mr Mulligan (who has cerebral palsy and hearing and vision impairments) to travel on its flights with his assistance dog.

The Federal Court found Virgin’s conduct amounted to illegal discrimination and awarded compensation of $10,000. It also found the Civil Aviation Regulations did not override the DDA. Queensland Health v Forest (2008)15 involved a DDA complaint by Mr Forest (who has a psychiatric disability), that he was not allowed to be accompanied by assistance dogs (Buddy and, subsequently, Knuckles) when attending a public hospital

and dental clinic. The trial judge found there had been unlawful discrimination and ordered $8,000 in compensation. On appeal, the Full Federal Court dismissed the complaint, finding that Mr Forest had not been denied access with his dogs because of his disability but because his dogs were “ill-behaved and ill-controlled” and there was inadequate evidence of proper assistance dog training.

More information Travelling with assistance animals on aircraft: https://www.casa.gov.au/aircraft/ cabin-safety/travellers-disability/travellingassistance-animals Public access rights for assistance animals: https://www.dpc.sa.gov. au/__data/assets/pdf_file/0019/33319/ Guidelines-for-Planning-for-People-withAssistance-Animals-in-Emerg_FINA....pdf page 9 Renting with an assistance dog or therapeutic animal: https://dogandcatboard.com.au/ dogs/renting-with-dogs B

Endnotes 1 Equal Opportunity Act 1984 (SA), s 88A. Note ‘therapeutic animal’ does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat Management Act 1995 (SA) or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995 (SA).

2 https://www.abc.net.au/news/2021-01-05/ canberra-alpaca-therapy-hangs-up-reins-after-17years/13033944 3 Strata Titles Act 1988 (SA) , s 19 (4)(c); Community Titles Act 1996 (SA), s 37 (1)(d).

4 Disability Discrimination Act 1992 (Cth) s 9 (2).

5 Equal Opportunity Act 1984 (SA), s 5.

6 Dog and Cat Management Act 1995 (SA), s 5.

7 Dog and Cat Management Act 1995 (SA), s 21A. 8 https://humanrights.gov.au/our-work/disabilityrights/projects/assistance-animals-and-disabilitydiscrimination-act-1992-cth 9 https://www.ptv.vic.gov.au/tickets/myki/ concessions-and-free-travel/assistance-animalpass/ 10 https://www.transperth.wa.gov.au/usingtransperth/animals 11 https://translink.com.au/tickets-and-fares/tickettypes/disability/assistance-animal-pass 12 https://dogandcatboard.com.au/dogs/assistancedogs 13 https://www.service.nsw.gov.au/transaction/ apply-assistance-animal-permit 14 Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130.

15 Queensland (Queensland Health) v Forest [2008] FCAFC 96.

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9 Springbank Street, Tullamarine, 3043 December 2021 THE BULLETIN

23

YOUNG LAWYERS

facebook.com/YLCSA

Young lawyers hold interactive ethics and wellbeing seminar MEGHAN FITZPATRICK, JONES HARLEY TOOLE

T

he Young Lawyers’ Committee Ethics and Wellbeing Hypothetical Seminar for 2021 was held on Thursday, 7 October 2021 at the Law Society.

We were fortunate to have panel members Greg May, Legal Profession Conduct Commissioner and Dr Michael Baigent, Professor of Psychiatry Flinders University return following previous appearances. We also introduced new panel members, Werner Van Wyk, Deputy Director Ethics & Practice Law Society of South Australia and Bec Sandford, Law Society President.

The seminar was available to attend

both in person at the Society or by way of live webinar and we were pleased to see so many new attendees both in person and online.

Attendees were provided with scenarios on topics relevant to the Australian Solicitor Conduct Rules, ethical dilemmas and managing our mental health. Multiple choice answers were available by way of an interactive polling system and attendees identified the most appropriate answer. Our panel members then discussed the scenario and the best approach for dealing with the different situations young lawyers might

find themselves in, particularly in the early stages of their career.

A special thank you to our panel members for taking the time out of their busy schedules to offer their perspective and advice to young members of the profession.

The Young Lawyers’ Committee would also like to thank all of the attendees who supported the event, the Law Society for hosting, major sponsor of the Young Lawyers’ Seminar Series legalsuper, as well as the Young Lawyers’ Committee major sponsor Burgess Paluch Legal Recruitment.

Hills long lunch well above par

O

n Saturday 23 October, a group of Adelaide’s finest young lawyers enjoyed a long lunch in the Adelaide Hills.

The event was a great success, with attendees first indulging themselves (after a slight detour) to a socially responsible glass of wine or three at Maximillian’s Restaurant.

Here, a few of the young lawyers tried their luck at the restaurant’s infamous hole in one attraction. Despite the frequent screams of “FORE” being called, none of our young lawyers were successful in taking out the glory (and the $500 prize on offer).

Lunch was then served at Lot 100, where their 78 Degree gin tasting and bottomless wood oven pizza was a huge hit.

Without Caldicott & Isaacs Lawyers and Burgess Paluch Legal Recruitment who sponsored the event, the day wouldn’t have been such a great success, so thank you to both of them and of course all of those who attended on the day.

24 THE BULLETIN December 2021

EVENTS

Mock Trial Competition 2021: That’s the way the cookie crumbles STEPHANIE MOORE, MEMBER, MOCK TRIAL COMMITTEE

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n Tuesday 14 September, 2021, the Mock Court of South Australia sat to hear the matter of Molini v Tudor: a personal injury claim arising from a bike accident caused by the defendant’s dog ‘Biscuit’.

The plaintiff, represented by University Senior College, was Lee Molini, a young student working part time as a bicycle messenger. The defendant, represented by Pembroke School, was Jo Tudor, the owner of Biscuit, a male Doberman.

The issue at trial was whether Ms Monlini’s fall was due to an attack by Biscuit and if so, whether Mr Tudor was negligent in keeping Biscuit secure in the front yard.

Barristers Jada Puglisi and Jazlyn Southwell of University Senior College, and Alec Johnson and Thomas Eckert of Pembroke, impressed the judges with their persuasive intellect. All four barristers articulated thoughtful argument and questioned witnesses appropriately about their knowledge of Dobermans, cyclists and the Dog and Cat Management Act 1995 (SA). The barristers were assisted by their instructing solicitors: Patrick Munn and Aastha Kumar of University Senior College, and Marwan Salih and Lisa Cao of Pembroke.

The witnesses were equally as impressive and entertaining. Olivia Spandrio, as the plaintiff, dressed in a hi-vis vest. She was a convincing and credible witness who told the Court she had fallen off her bike due to an unruly dog. Prapti

Dhawan, as the retired witness, who was more than happy to provide an account that Biscuit “barrelled” into the plaintiff ’s bike, performed her role well. Henry Ponte, as the defendant, painted a picture of a well-behaved Doberman, as did Moon Li, the witness who previously owned Biscuit.

All witnesses experienced lengthy crossexamination.

The Court was assisted by the Judge’s Associate, Lachie Davis, of Pembroke who kept everyone running on time and the Sherriff ’s Officer, Em Bonython, of University Senior College who maintained order in the Court.

Ultimately, the Court (being Justice Tim Stanley, “Justice” Rebecca Stanford and “Justice” Stephanie Moore) were satisfied that Biscuit had caused the plaintiff to fall off her bike and that the defendant failed to take reasonable precautions to prevent his dog from escaping.

University Senior College not only won its fictional case, but also took out the title as the winner of the Mock Trial overall.

Jada Puglisi won the award for the Outstanding Competitor whilst Thomas Eckert won the Best Barrister award, including the invaluable added prize of a week’s work experience with Justice Stanley.

Janine Campbell, the Legal Studies and History teacher from University Senior College said “The competition is fantastic.

Students learn so much about law, but also develop a range of transferable skills

such as problem solving, public speaking, collaboration etc. Over the years, for some of my students it has been a life-changing experience. Every now and then I meet parents who also remark on their memories of being in the competition many years ago.”

Jacqui McCann, the legal teacher of Pembroke said “the students had a wonderful time working together over the six months and many new, strong friendships have been formed, which is a fabulous outcome.”

The Mock Trial Committee offers its sincere thanks to Justice Stanley and Bec Sandford who helped to judge the grand final competition. Thank you also to all of the students and teachers who participated in this year’s competition and the members of the profession who volunteered their time to coach teams or judge trials throughout the year, including Chris Brohier who coached University Senior College and Professor Rick Sarre who informally coached Pembroke.

The competition is an excellent opportunity for high school students in Adelaide to work with people in the profession and to gain valuable skills to help them in their potential, future legal carers. The Committee wishes to thank the volunteers from the legal profession, the Society and the Law Foundation of SA for their ongoing support of the Mock Trial Competition. B

Winning team, University Senior College

Winning team, University Senior College

Best barrister Thomas Eckert, Pembroke School

Outstanding Competitor Jada Puglisi, University Senior College

December 2021 THE BULLETIN

25

WELLBEING & RESILIENCE

It's OK to grieve, and to reach out for support AMY NIKOLOVSKI, MANAGING PARTNER DBH LAWYERS AND MEMBER OF THE WELLBEING AND RESILIENCE COMMITTEE

Trigger warning- this article discusses miscarriage and pregnancy loss

A

s a member of the Wellbeing and Resilience Committee I was asked to write an article for this edition of the Bulletin. For anyone who knows me, I am the last person who should give any advice or guidance on wellbeing or work life balance, as mine is all out of whack. What I thought I could write about however was resilience.

I am writing this article in October, which is not only Mental Health Month but also includes Pregnancy and Infant Loss awareness day which is on 15 October.

Pregnancy and infant loss seems to be the last taboo topic in the profession and in society in general. Despite one in four pregnancies ending in loss, we are for some reason not supposed to talk about it.

I am not sure why. So today, I am going to tell you my story.

After struggling to conceive for six years with Niko, when I feel pregnant almost immediately with my second child it seemed like a miracle. I did all the things, had all the tests, and everything looked great. I had my first scan at eight weeks, when I heard her little heart beating at 171 bpm, it was such a glorious sound. I had another at 10 weeks to go along with my NIPT testing, which confirmed all was well and that we were having a girl. We had our 12-week scan, and got the all clear.

Those first three scans, I’m sure other parents can relate, you hold your breath just hoping that they are ok and it is such a relief to get the all clear.

Niko found out he was going to be a big brother, and my husband and I announced to the world that a little girl

26 THE BULLETIN December 2021

would be joining us in August, 2021. We were ecstatic.

That was until Friday 12 February, 2021, that day will be forever etched in my memory. I had an OB appointment, I was 14 + 2, well into the second trimester and I thought that I was in the “safe zone”. It’s strange how life can turn so quickly. Only two weeks earlier we were celebrating the joyous news that we were having a little girl to make our family complete, so when I attended that day, I never expected the heartbreak that was to follow.

As my OB zoomed over my stomach with the ultrasound wand, she said ‘baby is measuring a little small”… In response to that I thought “oh well, they can’t all be big like Niko”, but then she looked at me and said “I’m sorry, there’s no heartbeat”.

She then wrote “NFH” on the screen, “No Foetal Heartbeat”.

I actually said “but she was fine last week” like that was somehow supposed to make a difference.

According to her size she had stopped growing about two days earlier, at what would have been 13 weeks and 6 days.

After being comforted by my OB I was booked in for a d&c first thing Monday morning but I was sent home with my dead baby still inside me.

My body was playing a cruel trick on me, because it hadn’t realised the baby had died and continued to have all of the reactions of a pregnant body. I still looked pregnant, still had morning sickness, nausea, food aversions and a heightened sense of smell, but my baby’s heart was no longer beating.

Monday 15 February, at what should have been 14+5, just two weeks from learning the glorious news that we would be having a little girl join us in August was the day she was taken away.

The last time my husband Tony and I arrived at Calvary Hospital together it was for the delivery of our beautiful boy, this time our baby wouldn’t be coming home with us.

Because of COVID Tony couldn’t go past the entrance. I was guided into Day Surgery without him; I’ve never felt so alone.

My OB greeted me at the theatre doors and hugged me as I cried on her shoulder.

She held my hand as they put me to sleep through my silent tears, this time though the baby she would deliver wouldn’t be coming home with me.

I know I’m not the first, nor will I be the last that this will happen to, I’ve got friends who’ve had to endure the devastation of still birth. However you lost your baby, I’m sorry for your loss.

It has been eight months and I am still reminded of her and what might have been. Grief comes in waves. Those first few days and weeks were so hard. My body healed relatively quickly from the surgery but I am not sure my heart ever will.

So why am I telling you this? Because if you, like me are part of this crappy club, I want you to know that it is ok to grieve, to tell your story and celebrate the baby you never had a chance to meet. One in four women have suffered a miscarriage. I am the one in four.

Following my miscarriage so many people reached out to me, to tell me of their losses, how they never really truly felt like they could properly grieve, because

WELLBEING & RESILIENCE

they hadn’t told work, or had deadlines.

How they had lost their babies in client meetings, but persevered through.

The stories of those brave women and men really helped me through those first few weeks, knowing that they had been able to mend their broken hearts and their dreams of a child lost.

I am not sure why the topic is

so taboo, when so many of us have experienced this same devasting loss. It really shouldn’t be.

I am here to tell you to take the time you need to heal and although the storm seems like it will never end, one day the fog will lift and you will be able to see the beauty in the world again. They say you can’t build resilience if you have never

suffered loss or trauma, and although I would have much preferred another way to build my resilience, it is true. Little things that seemed so important don’t so much anymore because “it could be worse”.

Thank you for reading my story, and if this resonated with you, or you too are part of the one in four, I am so sorry for your loss.

Working from home or living at work?

The great debate of our time ZOE LEWIS. CHAIR, WELLBEING & RESILIENCE COMMITTEE

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he Law Society’s Wellbeing & Resilience Committee was delighted to bring back the much-loved “Great Debate” in October, 2021 after a two-year pandemic-related hiatus. The Great Debate is a light-hearted way to celebrate Mental Health Month - a chance to score a free, healthy breakfast and some laughs before your work day begins.

This year’s debaters battled it out on the topic of “WFH = LAW” (Working From Home = Living At Work). Both sides fought valiantly and raised many thoughtprovoking arguments. Does it all depend on your home environment such as whether you have a partner and kids also WFH and home-schooling?

Surely WFH means you end up working extra hours because you can log on at any time? Mind you, maybe it gives you greater flexibility than ever? But what about the isolation from colleagues?

Maybe not seeing your colleagues is a good thing!?

In the end, our adjudicator, Magistrate

Toni Vozzo, was unable to pick a winner and the event was declared a draw.

The event featured dressing gowns, cat masks and many other props, and was thoroughly enjoyed by all who attended.

We express our sincere thanks to our enthusiastic debaters (Floyd Bakewell, Dr

Rachael Gray QC, Enzo Belperio, Adrian Cartland, Daniel Fox and Holly Veale) and adjudicator, Magistrate Toni Vozzo.

Watch out for the Great Debate in October, 2022. You might even like to participate as a debater! If so, get in touch with the Committee via the Law Society. B December 2021 THE BULLETIN

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RISK WATCH

Culturally and linguistically diverse clients: Ongoing challenges for lawyers (Part 1) GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

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anguage, and the understanding of language by clients, are critically important aspects of the practice of the law. Legal professional indemnity insurers across Australia have reported an increase in claims resulting from language issues. This is hardly surprising, given the diverse multi-cultural make-up of modern Australian society - the Court forms under the Uniform Civil Rules (Forms 31-33) now provide for multi-lingual Notices of Claim covering 11 different languages, including English. Somewhat surprisingly, (apart from English) the only European languages included are Albanian and Greek - Italian, Spanish, German, French, Polish, Russian etc. do not have their own Forms.

As is stated in the Preamble to the Courts Administration Authority’s Interpreter Protocols: “Fundamental principles of fairness and equity require that no person appearing before a Court should be disadvantaged in the proceedings or in understanding the procedures because of a language or other communication barrier.”

The steps necessary to ensure that disadvantage is not visited upon clients who do not fully understand English present a number of challenges for lawyers.

The Protocols provide that legal practitioners appearing in proceedings when an interpreter is assisting should adjust their advocacy accordingly. Some of the suggestions which are made are as follows: • short sentences are preferable and complex questions should be avoided • time must be adjusted to take account of the time needed for interpreting

28 THE BULLETIN December 2021

• the interpreter should be able to finish the particular interpretation. Do not cut the interpreter off • avoid the use of negative assertions in questions as they are frequently a source of miscommunication • minimise the use of innuendo, implied accusations and figurative language as these linguistic features are difficult to interpret accurately • when words have multiple meanings, be explicit about which meaning is to be relied upon.

The Protocols provide that an interpreter should be engaged in any proceedings where a party or witness who speaks limited English, has difficulty communicating in English or is hearing impaired in a courtroom context is required to appear in the court or has any other business before the court. It can be seen that this is a fairly low threshold to meet before an interpreter is required.

It will generally be up to the legal practitioner acting for a client or relying upon a witness who needs assistance from an interpreter to arrange that interpreter.

This obligation is not something to take lightly. In Zhou v Zong [2018] FCCA 3393 the Court ordered that the costs thrown away by reason of an adjournment of a trial be paid by the lawyer personally where the adjournment was necessary in part because the lawyer had not arranged for an interpreter for his client’s evidence to be present at the commencement of the trial.

It should not be supposed that problems of language are necessarily solved by the lawyer involved being able to speak the language in question, and especially not where court proceedings are concerned. In Rogic v Samaan [2018]

NSWSC 1464, Kunc J made a number of observations on taking affidavits from culturally and linguistically diverse witnesses. That case involved a number of witnesses who spoke mainly Serbian. Their actual evidence in court was provided through a NAATI accredited interpreter however their affidavit evidence (being their evidence in chief at the trial) was prepared by the solicitor for the plaintiff.

The solicitor spoke both Serbian and English. He took instructions from the witnesses in Serbian and then translated those instructions himself into English and prepared the affidavits in English. He then read the affidavit back to the relevant witnesses in English and translated it back to them in Serbian to obtain their assent to its contents. His Honour said: “…I am not suggesting [the] solicitor acted unethically. I assume that he did not retain a qualified, independent interpreter because he was trying to save costs by taking advantage of the fact that he spoke Serbian. Nevertheless, what was done is not a practice which is likely to maximise the prospects of justice being done and should be avoided when the witness is a culturally and linguistically diverse (CALD) person unless there is no practical alternative (for example, due to lack of communication facilities in a remote region, or urgency).”

Kunc J said there are at least two reasons why a bilingual solicitor should not interpret the deponent’s evidence to produce an affidavit in English: “157. First, ‘research demonstrates the superior performance of trained interpreters over untrained bilinguals.’ (citation omitted) 158. Being bilingual is not the same thing as being an interpreter (spoken words) or

RISK WATCH

translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics, which emphasises the importance of professional competence, accuracy and independence.

159. Second, assuming the role of interpreter or translator could put the solicitor in an invidious professional position. This is also why even a solicitor who is also a professional interpreter—if there are any—should not do so in her or his own cases. Difficulties may arise if the accuracy of the interpretation is questioned, raising the possibility of the

solicitor having to give evidence. Allegations of unconscious or even conscious bias could be raised.”

Whilst being a multi-lingual solicitor is unlikely to be a disadvantage it will not necessarily solve all the problems with language, particularly where documents for use in Court are concerned. Assistance from professional interpreters (even with the added cost and delay occasioned by their use) should be sought when appropriate.

Of course, it is not just court proceedings which raise issues where language might be a difficulty. Language

problems may arise in all areas of legal practice—commercial transactions and wills and estates are just two obvious examples. The February, 2022 Riskwatch article will deal with some of the issues that arise from CALD clients in nonlitigious matters.

In the meantime, there is a checklist for working with culturally and linguistically diverse clients, and accompanying Acknowledgement to Interpreters, available to practitioners insured with the SA Professional Indemnity Insurance Scheme in the General Law document package in the Risk Management section of the Society’s website (requires login).

Legal aid opens new office at Whyalla

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he Legal Services Commission has moved to a new office location in Whyalla to boost the delivery of its services in the Eyre Peninsula region.

The office is located at 17A Forsyth Street, Whyalla. The Commission’s Whyalla office phone numbers and email addresses have not changed.

“Our new Whyalla office is more than just a building,” says the Commission’s Director, Gabrielle Canny.

“It’s a demonstration of our continuing commitment to the people in this important part of SA. “We have had an office in Whyalla since 1985 and we know it can be particularly tough for people dealing with legal problems in regional areas. They have fewer legal services to choose from, reduced access to courts and tribunals, plus increased travel expenses.

“Many of our enquiries in this region relate to family law problems,” says Ms Canny. “Those enquiries are about the care of children, property disputes, intervention orders and divorce proceedings.

“At our Whyalla office we also provide a mediation service that helps separated

parents to reach out-of-court agreements regarding the care of their children and the division of property. In these negotiations, each parent is represented by a lawyer.

“This Family Dispute Resolution mediation program is very successful.

An agreement is reached by four out of every five couples who take part in this program.

“We also handle a number of enquiries in the Whyalla region relating to consumer issues, debt, employment laws, traffic matters, Wills, criminal cases and landlord disputes.”

In 2019, the Commission moved to new and improved premises at Port Augusta to boost its assistance to people in SA’s Upper Spencer Gulf. B December 2021 THE BULLETIN

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FEATURE

The existing legal safeguards for experimental laboratory animals in SA ROSS TEMPLEMAN, MEMBER, ANIMAL LAW COMMITTEE

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f you, or someone that you know, lives with diabetes, has had a coronary bypass or a hip replacement, or received a vaccination for diphtheria, polio, tetanus, or been treated with antibiotics, it is probable that you or they are alive or have a better quality of life due to research that was carried out on laboratory animals.

Irrespective of whether you place yourself as supporting animal welfare, animal rights or haven’t considered the matter closely, what is the actual state of the law for animal experimentation in SA at present?

The bulk of the legislative framework for animal experimentation (and teaching involving animals) is contained within the Animal Welfare Act 1985. Any person (or body corporate) that wishes to use animals for teaching or research or experimentation must be licensed.1 The type or organisations that use animals and require licensing are typically universities, TAFEs, schools, hospitals and research centres, and animal organisations such as zoos and wildlife parks. They may be either private or government owned. A licence is only granted where the responsible Minister is satisfied that the applicant can adequately house and provide for the needs meeting of the animals kept.2 Licences need to be renewed every two years.3 Animals that may be used include typical ‘laboratory’ species such as mice, rats, guinea pigs and ferrets, farm species such as cattle, sheep, poultry, horses and pigs, and other species such as native birds and animals, cats, dogs, and primates.4 It must be remembered that many uses of animals under the Act are for the training of individuals that will interact with animals on a professional basis, such as veterinarians, agricultural students and science/medical students, rather than all being strictly experimental in nature.

There are two major licence conditions that are normally made applicable for licensees. The first of these is the need to comply with ‘the Code’, being the Australian code for the care and use of animals for scientific purposes5 (NHMRC) – the current version being the 8th Edition, 2013.6 The Code was prepared by a working committee comprising representatives from amongst

30 THE BULLETIN December 2021

others the ARC,7 CSIRO,8 NHMRC,9 Universities Australia, RSPCA and Animals Australia, Commonwealth and State government departments. Under the Code, “the use of animals for scientific purposes must have scientific or educational merit; must aim to benefit humans, animals or the environment; and must be conducted with integrity. When animals are used, the number of animals involved must be minimised, the wellbeing of the animals must be supported, and harm, including pain and distress, in those animals must be avoided or minimised.”10 The second license condition is that all research/teaching activities must be approved by an Animal Ethics Committee (AEC).11 The AECs look at all research and teaching proposals and decide whether the work proposed is ethically acceptable and likely to be useful. They comprise at least five members, who shall include at least one each of a veterinarian, nominees of animal welfare organisations and the public,12 with the AEC itself obligated to follow the Code.13 AECs have the wide powers to accept proposals, turn them down completely or request changes to make the proposals acceptable.14 They have the power to inspect work on approved projects at any time, with or without notification,15 and halt any work which is not being carried out in an appropriate manner.16 They also examine the need for the particular end use of the proposal and ensure that there is no unnecessary repetition of previous research.17 Should a decision of the AEC, or the Minister, be disagreed with, a Review lies to the South Australian Civil and Administrative Tribunal within one month of the decision.18 And what of the older images of rabbits being subject to the testing of shampoos or beauty products poured into their eyes? - or the LD (lethal dose) 50 test19 that measures the dose of a substance which is required to kill 50% of a test population? Under the Animal Welfare Regulations 2012, both of these practices are normally prohibited in South Australia.20 The exception to the prohibition has a

reverse onus of proof on the research applicant, to justify that the research has the potential to benefit human or animal health and the objectives cannot be achieved by means that will cause less pain to animals.21 So, the next time that you visit the doctor, vet or chemist and obtain a treatment or medicine, give a small thought to the laboratory animals who have played a part over many years in ensuring that that procedure or medicine is available and relatively safe for use. B Endnotes 1 Animal Welfare Act 1985 s16 2 Animal Welfare Act 1985 s18 3 Animal Welfare Act 1985 s20 4 Definition of ‘Animal’ under the Australian Code for the care and use of animals for scientific purposes: Animal: any live non-human vertebrate (that is, fish, amphibians, reptiles, birds and mammals, encompassing domestic animals, purpose-bred animals, livestock, wildlife) and cephalopods.

5 https://www.nhmrc.gov.au/about-us/ publications/australian-code-care-and-use-animalsscientific-purposes 6 Animal Welfare Act 1985 s19(2)(f) 7 Australian Research Council, https://www.arc.gov.au/about-arc 8 The Commonwealth Scientific and Industrial Research Organisation, https://www.csiro.au/en/ 9 National Health and Medical Research Council, https://www.nhmrc.gov.au/ 10 Australian code for the care and use of animals for scientific purposes – 8th Edition, Canberra, NHMRC, p1 11 Animal Welfare Act 1985 s19(2)(c)-(e).

More information on Animal ethics committee’s may be found here: https://www.environment.sa.gov.au/topics/ plants-and-animals/animal-welfare/Animals_in_ research_teaching/Animal_ethics_committees 12 Animal Welfare Act 1985 s23(3) 13 Animal Welfare Act 1985 s25(1a) 14 Australian code for the care and use of animals for scientific purposes – 8th Edition, Canberra, NHMRC, 2.3.9 p26 15 Australian code for the care and use of animals for scientific purposes – 8th Edition, Canberra, NHMRC, 2.3.21 p27 16 Australian code for the care and use of animals for scientific purposes – 8th Edition, Canberra, NHMRC, 2.3.25 p28 17 Animal Welfare Act 1985 s25(3) 18 Animal Welfare Act 1985 ss26, 27 19 https://www.animalethics.org.au/accreditationand-licensing/ld50-and-lethality-testing 20 Animal Welfare Regulations 2012 s11 21 Animal Welfare Regulations 2012 s11(1)(c), (d)

FEATURE

Animal Welfare Laws leave pet fish up the creek RONAN O’BRIEN, MEMBER OF THE ANIMAL LAW COMMITTEE

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magine this scenario. You see your neighbour packing up their belongings and moving out. A week goes by and you hear a dog barking from the inside of your neighbour’s house. A quick peek through a window reveals the distressed dog. You contact either the police or the RSPCA (SA) and thankfully they are able to utilise their powers under the Animal Welfare Act 1985 (SA) (the Act) to secure a warrant to forcefully enter the property and retrieve the abandoned dog before any harm comes to it.1 A few days later, your neighbour on the other side moves out. You are aware that they have an aquarium with all sorts of fish, however you don’t see them packing the aquarium into their removalist truck. A few days go by and curiosity gets the better of you, so you peek through your neighbour’s window and clearly see the aquarium still sitting there in the living room with all the fish. Being concerned for the welfare of the fish, you again contact either the police or RSPCA (SA), trusting that once again they will be able to forcefully enter the property and save the fish before any harm comes to them. Unfortunately, this time you are informed that there is nothing that can be done as their powers under the Act only apply to animals.

killing of fish. Nevertheless, every State and Territory, except Western Australia and South Australia, now recognise fish as being animals for the purpose of their animal welfare legislation. So how do other jurisdictions prevent the criminalisation of fishing?

DEFINITION OF ANIMAL

NEW SOUTH WALES

Section 3 of the Act defines an animal as being “a member of any species of the sub-phylum vertebrata”, in other words: Vertebrates. In scientific terms, this includes all mammals, birds, reptiles, amphibians and fish. However, section 3 goes on to specifically exclude fish from being included within the meaning of “animal” for the purposes of the Act. (For the sake of completeness, human beings are also excluded from this definition).

A common argument for not including fish within animal welfare legislation is that this would potentially criminalise commercial and recreational fishing which, obviously, involves the capture and

Section 24 of the Prevention of Cruelty to Animals Act 1979 (NSW) provides that a person accused of an animal cruelty offence is not guilty if they satisfy the court that the act committed occurred during “hunting, shooting, snaring, trapping, catching or capturing the animal … in a manner that inflicted no unnecessary pain upon the animal.”

NORTHERN TERRITORY Section 4 of the Animal Welfare Act 1999 (NT) recognises fish as constituting animals only when they are “in captivity or dependent on a person for food”.

TASMANIA Section 4 of the Animal Welfare Act 1933 (TAS) specifically excludes animal cruelty offences in circumstances of recreational and commercial fishing provided that the fishing occurs “in a usual and reasonable manner and without causing excess suffering.”

QUEENSLAND Section 7 of the Animal Care and Protection Act 2001 (QLD) excludes animal cruelty offences in circumstances where the acts or omissions are authorised under a different Act. This would include the Fisheries Act 1994 (QLD).

VICTORIA Section 6(1)(g) of the Prevention of Cruelty to Animals Act 1986 (VIC) specifically excludes animal cruelty offences from fishing activities authorised by and conducted in accordance with the Fisheries Act 1995.

AUSTRALIAN CAPITAL TERRITORY Section 17(1)(5)(e) of the Animal Welfare Act 1992 (ACT) provides that a person commits an offence if the person takes part in a violent animal activity, however this does not apply to the catching of fish in a way authorised under a Commonwealth or Territory law.

OPTIONS FOR SOUTH AUSTRALIA Any future review of the South Australian legislation should consider the approaches taken by other states and territories. The majority of Australian jurisdictions have shown that an additional clause to animal welfare legislation can strike a balance between protecting recreational and commercial fishing whilst ensuring that fish aren’t unnecessarily abused in other aspects.

1. South Australia could follow the example of the Northern Territory and amend the definition of animal, e.g.

Animal means a member of any species of the sub-phylum vertebrata except: a. a human being; or b. a fish (in circumstances where the fish is not in captivity or dependent on a person for food), 2. South Australia could remove the exemption of fish within the definition of animal, but then follow the example of the majority of Australian jurisdictions in specifically excluding recreational and commercial fishing from the animal cruelty offence provisions of the Act. Either of the above changes would ensure that in our earlier imagined scenario, the police or RSPCA would be able to intervene and rescue your neighbour’s fish rather than letting them starve to death. Additionally, you could still go fishing without fear of prosecution. B Endnotes 1 Animal Welfare Act 1985 (SA) s 31D.

December 2021 THE BULLETIN

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FEATURE

Turkeys and the law DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE

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he history and somewhat quirky nature of turkey case law illustrates that this humble fowl is so much more than the traditional protein element in a festive meal.

BESTIALITY In 1642, in what was to become the United States of America, Thomas Granger was indicted for buggery with “a mare, a cow, two goats, five sheep, two calves and a turkey”. The man confessed to ‘lewd acts on a regular basis’ and was executed.1 Fast forward 200 years and in 1880 the NSW courts debated whether a turkey, as a fowl, could be considered an animal for the purposes of sodomy.

The case, Queen v Reynolds2 is one where “an unnatural connection” took place between a prisoner and the body of a male turkey.

Debate then ensued as to whether ‘an unnatural connection’ with a fowl could be considered sodomy as a fowl did not come under the term ‘beast’.3 It was decided that an amendment to the Act4 whereby ‘animal ‘was substituted for ‘beast’ meant that “all animals of the fowl kind” were now included in the definition.

Thus, sodomy with a turkey became a crime in Australia.

AIRPLANES Don Larson5 was a proud turkey farmer in Iowa, USA. He valued his stock and took out an insurance policy on his turkeys covering death as a result of fire, lightning, explosion, smoke, vandalism and malicious mischief caused by huddling, piling, smothering, drowning, or freezing.

21 July, 1964 was a hot day and two planes flew over Mr Larson’s turkey farm, one at 2pm and another at 5pm. There was

32 THE BULLETIN December 2021

nothing unusual about this as Mr Larson’s farm was on the flight path between Minneapolis and Des Moines. However, the 5pm plane was observed to maintain a height of 150 – 200 feet only and flew directly over 4300 insured turkeys.

It was alleged the low flying plane caused the 4300 large turkeys to stampede, suffocating 2066 of them.

Mr Larson claimed the deceased birds on his insurance policy under malicious mischief. The insurer refused the claim and the matter went to court where an expert witness testified that: “The birds that die from fright will die in a pile. I mean they will get to an object and that stops them, but they just keep piling on top of one another, whether it be from flying objects or from rats.”

Mr Larson’s claim was ultimately denied by the court on grounds that they were unable to find in the record: “any evidence on which the jury could find the unidentified pilot was bent on mischief against the plaintiff and was prompted by an evil mind”.

FEATHERS A NSW case of Harvey v John Fairfax Publications Pty Ltd6 which involved a turkey farm, has been quoted several times in text books7 in the context of form and capacity challenges in defamation proceedings.

In 1997, the Sydney Morning Herald published the following in relation to this case: “…Harvey was running about 1000 turkeys in a paddock adjacent to the hotel and ‘it became a health issue because the residents got

upset about the feathers blowing everywhere and turkey (droppings) getting into the creek” The article went on to state: “The council took him to court and ‘we must have won because the turkeys disappeared”.

Mr Harvey brought a defamation case stating, amongst other matters, that the article impugned that he had seriously endangered public health.

Ultimately, the initial pleading was struck out and leave granted for a repleading without the use of the word serious.

BRUSH TURKEY EGG OMELETTE. The native brush turkey was a common source of meat during the great depression of the 1930s.8 The eggs were celebrated as an excellent source of protein as they can weigh up to 180g each and are 80% yolk.9 After the second world war, due to decreasing numbers, turkeys became protected in Queensland10 and NSW.11 In South Australia, brush or scrub turkeys, introduced to Kangaroo Island, are protected by the National Parks and Wildlife Act12 with fines of up to $2500 or six months in prison for the taking of a protected animal or their eggs. There are exceptions to this for Aboriginal persons where the turkey will be used for food or cultural purposes.13 The turkey, both native and introduced, has shaped Australian bestiality, defamation and native protection law as well as feeding us through a depression and more recently becoming a much-loved therapy animal.14 B

FEATURE

Endnotes 1 Of Plymouth Plantation a journal written between 1630 and 1651 by Governor William Bradford, the leader of the Pilgrim colony Massachusetts http://www.gutenberg.org/ files/24950/24950-h/24950-h.htm paragraph [475] 2 Regina v Reynolds 4 June 1880.

3 1 Russell on Crimes page 938; Rex v Mulreaty from the MS of Bayley J. 4 9 Geo.IV.,c.31, s 15 5 Larson v. Fireman’s Fund Insurance Company,139 N.W.2d 174 (1965), Don LARSON, also known as Donald Larson and Donald Larsen, Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Appellee.

No. 51843.Supreme Court of Iowa.December 14, 1965. https://law.justia.com/cases/iowa/ supreme-court/1965/51843-0.html 6 Harvey v John Fairfax Publications Pty Ltd [2000] NSWSC 337 (20 April 2000). http://www. austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/ NSWSC/2000/337.html Harvey v John Fairfax Publications Pty Ltd [2004] NSWSC 188 (22 March 2004). http://www.austlii.edu.au/cgi-bin/ viewdoc/au/cases/nsw/NSWSC/2004/188. html 7 Defamation: Comparative Law and Practice by Andrew Kenyon 8 https://blogs.sydneylivingmuseums.com.au/ cook/lets-talk-turkey-brush-style/ 9 https://www.abc.net.au/news/

science/2017-01-17/five-reasons-to-love-brushturkeys/7199724 10 https://www.qld.gov.au/environment/ plants-animals/animals/living-with/brushturkeys#:~:text=Brush%20turkeys%20are%20 threatened%20by,before%20Europeans%20 settled%20in%20Australia.

Nature Conservation Act 1992 (Queensland) 11 Biodiversity Conservation Act 2016 (NSW) schedule 5 12 National Parks and Wildlife Act 1972 (SA) s 51 13 Ibid s 68D, 68E 14 https://www.audubon.org/news/why-turkeysand-other-birds-make-great-therapy-animals https://www.emotionalpetsupport.com/2017/11/ turkey-emotional-support-animal/

Animal Law Committee Annual Appeal 2021 SUSAN GARDINER, APPEAL TEAM LEADER AND MEMBER OF THE ANIMAL LAW COMMITTEE

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espite continuing Covid-19 related challenges, the Law Society’s Animal Law Committee Members pushed forward with their Annual Shelter Appeal for 2021, which this year ran for two months over July and August. Focussing on smaller and less widely known animal shelters, this year’s appeal supported a total of 13 different South Australian charities, ranging from hearing assistance dogs to ferrets and Australian native wildlife.

Posters were widely distributed throughout the legal community of South Australia, detailing drop-off locations for physical items as well as displaying a QR code which allowed monetary donations to be made directly to one of six individual

rescues. Members of the Animal Law Committee also rallied their respective work colleagues together, including employees of the Law Society itself, amassing boxes of donated items nominated by the various charitable organisations.

The Committee was thrilled with the result of the appeal and the generosity of the legal community. Donations ranged from puppy pads and scratching posts to bird seed and disinfectant, and bundles of donated items have been conveyed to the individual charities throughout the month of September.

If you are kicking yourself because you forgot to donate, you’re in luck – it’s not too late! Just scan the QR code displayed above

Animal Law Committee Members divvying-up the generous donations. (Left to right): Committee Chair, Diana Thomas; Appeal Team Leader, Susan Gardiner; and Committee Member, Renee Evans.)

and you will be directed to a list of links to reputable charities providing invaluable care for animals in need in South Australia. B December 2021 THE BULLETIN

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TAX FILES

DGRs that are not already charities PAUL INGRAM, SENIOR LEGAL COUNSEL, MINTERELLISON

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ost of the general Deductible Gift Recipient (DGR) categories in Division 30 of the ITAA 1997 require the relevant fund, authority or institution to be: • a Registered Charity (ie. with the ACNC); • an ‘Australian Government Agency’; or • operated by a Registered Charity or Australian Government Agency before they can apply for endorsement as a DGR. But there were 11 general DGR categories that were not subject to this requirement, namely: • public funds for hospitals (item 1.1.3); • public funds for public ambulance services (item 1.1.8); • public funds for religious instruction in government schools (item 2.1.8); • Roman Catholic public funds for religious instruction in government schools (item 2.1.9); • school building funds (item 2.1.10); • public funds for rural school hostel buildings (item 2.1.11); • approved research institutes (item 3.1.1); • necessitous circumstances funds (item 4.1.3); • REO funds – ie. public funds on the Register of Environmental Organisations (item 6.1.1); • ROCO funds – ie. public funds on the Register of Cultural Organisations (item 12.1.1); and • fire and emergency services funds (item 12A.1.3).

However, as a result of the Treasury Laws Amendment (2021 Measures No. 2) Act 2021 (Amending Act), which received Assent on 13 September 2021, these 11 categories will now also be subject to the same requirement.

The change takes effect from 13 December 2021, being 3 months after the date of Assent, but is subject to some important transitional measures (explained below).

AUTOMATIC 12-MONTH GENERAL TRANSITION PERIOD FOR EXISTING DGRS All existing non-government DGRs will have 12 months (ie. until 13 December 2022) to become a Registered Charity.

34 THE BULLETIN December 2021

This will give affected DGRs time to: • review their Constitutions, and their entitlement to charity status generally; • effect any required changes; and • apply to the ACNC for registration.

Affected DGRs who do not comply with the new requirement will lose their DGR status as at 13 December 2022, unless they have obtained an ‘extended application date’ under the next transitional measure.

DISCRETION TO GRANT A THREE-YEAR EXTENSION Affected DGRs can also apply to have an ‘extended application date’ (being 13 December 2025).

Applications for this measure have to be made by 13 December 2022, and will be granted at the Commissioner’s discretion. Before that discretion can be exercised: • the Commissioner must be satisfied that the following ‘prescribed’ criteria are met: ◦ there has been no change in the applicant’s circumstances that would affect its entitlement to DGR endorsement (but for these amendments); ◦ the applicant has never had an application for registration under the ACNC legislation refused; and ◦ the applicant has never had its registration under the ACNC legislation involuntarily revoked; and • the Commissioner must also have regard to certain ‘prescribed matters’, namely: ◦ whether the applicant has taken steps to satisfy the requirements for registration as a charity, to apply for registration, and to provide all required information; ◦ whether it is reasonably possible that the applicant will be able to satisfy the requirements for charity registration by 13 December 2025; ◦ if the applicant believes that it is unlikely to satisfy the requirements for charity registration by 13 December 2025 – whether it is

reasonable for the applicant to be given additional time to wind up and distribute surplus assets; and ◦ any views expressed by the ACNC Commissioner about the above matters.

OUTSTANDING DGR APPLICATIONS AS AT 13 DECEMBER 2021 Where an organisation has made an application to the Commissioner for endorsement under one of the affected DGR categories prior to 13 December 2021, and the application has not been determined by that date, that organisation will qualify for both the 12 month general transition period and the three year extended transition period.

However, it appears that REO and ROCO applications are a special case: • these applications involve a two-step procedure: ◦ approval by the relevant Minister; and ◦ endorsement by the Commissioner; • the ATO position appears to be that if the first of those steps (Ministerial approval) has not been satisfied by 13 December 2021, then the applicant will not be entitled to any transitional relief (and will presumably have to apply for Charity Registration before the REO/ ROCCO application will progress); • however, if the first step (Ministerial approval) has been satisfied by 13 December 2021, but the application for endorsement has not been determined by the Commissioner by that date, then both transitional measures will presumably apply.

APPLICATIONS MADE AFTER 13 DECEMBER 2021 Organisations applying under one of the affected DGR categories after 13 December 2021 will need to comply with the new requirement before their application can proceed.

Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

BOOKSHELF

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The Australian High Court has implied from Chapter III of the Constitution significant protections for judicial independence and fair trial processes. In the last 25 years, these protections have been extended to the judiciaries of the Australian States with often-

overlooked consequences for the operation of the Australian federation… To inform and illuminate these ongoing debates, Judicial Federalism in Australia: History, Theory, Doctrine and Practice provides a holistic analysis of the federal influence of Chapter III. It considers the historical underpinnings of the Chapter.

LAW OF COSTS Abstract from LexisNexis Law of Costs 5th edition comprehensively addresses the legislation, court rules and case law pertaining to the law of costs in each Australian jurisdiction, as well as federally,

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modern Australian law of restitution, however, is complex. The topic of restitution addressed by the authors includes doctrines responding to different policies as well as gain-based remedies appurtenant to wrongs with their juridical source outside unjust enrichment, which is only one of the bases for restitution. The fourth edition has been fully revised and updated and some chapters rewritten.

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economic loss; those torts, such as nuisance, in which neither intention nor negligence is necessarily relevant; defamation; and the economic torts which protect the intentional infringement of another’s trade or business.

The sixth edition has been extensively updated to cover new developments in case law and legislation, including: significant changes in vicarious liability, particularly institutional abuse and labour hire arrangements.

December 2021 THE BULLETIN

35

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – PRIVATE CONTACT BETWEEN BARRISTER AND JUDGE WHILE CASE WAS UNDER WAY GIVES RISE TO APPREHENDED BIAS

orders and publishing reasons, thereby bringing the litigation to an end. …”

The appeal was allowed and the matter remitted for rehearing with costs.

n Charisteas [2021] HCA 29 (6 October, 2021) the High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) considered a recusal application on the ground of apprehended bias.

The High Court said (from [14]): “ … [W]hat is said might have led the trial judge to decide the case other than on its legal and factual merits was identified.

It comprised the various communications between the trial judge and the wife’s barrister ‘otherwise than in the presence of or with the previous knowledge and consent of ’ [cf Magistrates’ Court at Lilydale [1973] VR 122 at 127] the other parties to the litigation. … The communications should not have taken place. …

[15] A fairminded lay observer … would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. … (…)

[18] … The apprehension of bias principle is so important to perceptions of independence and impartiality ‘that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined’ (emphasis added) Ebner [2000] HCA 63 (‘Ebner’). …

[19] The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications … (…)

[21] … The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. …

[22] It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. … [T]heir contact may be resumed … by a judge making

PROPERTY – LITIGATION FUNDING ORDER AGAINST THIRD PARTY – IRREVERSIBILITY OF ORDER AT FINAL HEARING NOT FATAL TO APPLICATION

I

36 THE BULLETIN December 2021

In Lao & Zeng [2021] FedCFamC1A 17 (23 September, 2021) the Full Court (Ainslie-Wallace, Ryan & Austin JJ) considered a litigation funding order that required the wife’s mother to pay $350,000 towards the husband’s legal fees.

The wife’s legal fees were funded by her mother, the husband seeking that the mother also pay his fees.

As to the reversibility of the litigation funding order, Ryan J (with whom AinslieWallace J agreed) said (from [48]): “( … ) Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought. …

[49] It is … significant that in [Zschokke [1996] FamCA 79] … the Full Court said that there must be a question about whether it is possible to make a litigation funding order under s 117(2) even though the order could not be taken into account in a final hearing. For example in parenting proceedings or where no right of action exists under s 79. If their Honours considered that reversibility and the ability to take the amount into account in a final property hearing was an essential element to the exercise of power under s 117(2) it follows that in the examples given such an order could not be made. …

[50] … [T]here will be cases where even though the amount paid may not be able to be … taken into account in the final hearing, the interests of justice may nevertheless justify an order under s 117(2) for interim funding or security for costs. ( … )”

The majority dismissed the appeal with costs.

CHILDREN – PARENTAL RESPONSIBILITY – NO ERROR IN VESTING SOLICITOR WITH PARENTAL RESPONSIBILITY FOR LIMITED PURPOSE OF A TORT CLAIM AGAINST MOTHER In Agambar [2021] FedCFamC1A 1 (2 September, 2021) the Full Court (Strickland, Austin and Baumann JJ) heard a father’s appeal from a decision that vested a solicitor with parental responsibility for the limited purpose of instructing lawyers to act on behalf of the children in tort claims against their mother.

Weeks after separation, the mother lost control of her car and crashed while driving the parties’ three children. One child was killed and the other two were injured.

The children had personal injury claims against the mother.

The mother conceded that she could not act as litigation guardian and sought “Mr B” to be given parental responsibility for the limited purpose of instructing lawyers to act in the tort claims.

Dealing with the father’s complaint as to the interference with the parents’ parental responsibility, the Full Court said (from [38]): “( … ) In VR & RR [2002] FamCA 320 (‘VR & RR’) the Full Court … dismissed the aspect of the appeal which concerned the trespass upon parental autonomy by the appealed orders … (…)

[39] The Full Court … recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. … [T]he primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order

FAMILY LAW CASE NOTES

interfering with their existing equal shared parental responsibility …

[40] The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here … because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be

vested in adults other than the child’s parents (ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes … (…)

[43] Since the primary judge appreciated the gravamen of the decision … and nevertheless decided to invest Mr B

3 OCT 2021 – 2 NOV 2021 ACTS PROCLAIMED Motor Vehicles (Motor Bike Driver Licensing) Amendment Act 2021 (No 8 of 2021) c Commencement ss 4-8, 10-13:

22 November 2021 Commencement remaining provisions:

7 October 2021 Gazetted: 7 October 2021, Gazette No. 66 of 2021 Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021 (No 30 of 2021) Commencement: 1 November 2021 Gazetted: 14 October 2021, Gazette No. 68 of 2021 Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Act 2021 (No 35 of 2021) Commencement: 21 October 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021 Correctional Services (Accountability and Other Measures) Amendment Act 2021 (No 12 of 2021) Commencement ss 10; 26(1) and (3); 27 to 31; 33 to 35; 37 to 40; 42; 44 to 46; Sch 1 cl 4; Sch 1 cl 5(2): 1 November 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021 Liquor Licensing (Miscellaneous) Amendment Act 2019 (No 28 of 2019) Commencement ss 6, 13 and 14(2):

22 October 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021

with the discrete portion of parental responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B … ( … )” The father’s appeal was dismissed with costs. B

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

Lotteries Act 2019 (No 41 of 2019) Commencement: 10 December 2021 Gazetted: 28 October 2021, Gazette No. 70 of 2021

ACTS ASSENTED TO Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, No. 38 of 2021 Gazetted: 7 October 2021, Gazette No. 66 of 2021 South Australian Multicultural Act 2021m No. 39 of 2021 (repeals South Australian Multicultural and Ethnic Affairs Commission Act 1980) Gazetted: 21 October 2021, Gazette No. 69 of 2021

APPOINTMENTS Acting Judicial Conduct Commissioner for a term of three months commencing on 7 October 2021 and expiring on 6 January 2022 Honourable Bruce Malcolm Debelle AO QC Gazetted: 7 October 2021, Gazette No. 66 of 2021 Youth Court of South Australia Judge From 8 December 2021 – 16 April 2025 Judge Penelope Anne Eldridge Magistrate – principal judiciary From 23 November 2021 for a term of 2 years Magistrate Alison Frances Adair From 19 April 2022 for a term of 1 year Magistrate Oliver Rudolf Gerhard Koehn Gazetted: 7 October 2021, Gazette No. 66 of 2021 Notification of Assumption of Office of Governor Proclamation

Gazetted: 7 October 2021, Gazette No. 67 of 2021 District Court of South Australia Judge From 1 November 2021 Heath David Barklay QC Gazetted: 28 October 2021, Gazette No. 70 of 2021 Master on an auxiliary basis, from 1 November 2021 - 30 June 2022 Christina Rose Flourentzou Gazetted: 21 October 2021, Gazette No. 69 of 2021 Magistrate on an auxiliary basis, from 25 October 2021 - 30 June 2022 Terence Frederick Forrest Gazetted: 21 October 2021, Gazette No. 69 of 2021 Environment, Resources and Development Court of South Australia Judge effective from 1 November 2021 Heath David Barklay QC Gazetted: 28 October 2021, Gazette No. 70 of 2021 State Planning Commission Members for a term of three years commencing on 1 November 2021 and expiring on 31 October 2024 Craig Andrew Holden Stuart Paul Moseley Elinor Rebecca Walker Noelle Margaret Hurley Gazetted: 28 October 2021, Gazette No. 70 of 2021 December 2021 THE BULLETIN

37

GAZING IN THE GAZETTE

REGULATIONS PROMULGATED (3 OCTOBER 2021 – 2 NOVEMBER 2021) REGULATION NAME

REG NO.

DATE GAZETTED

Motor Vehicles (Motor Bike Driver Licensing) Variation Regulations 2021

147 of 2021

7 October 2021, Gazette No. 66 of 2021

South Australian Public Health (Notifiable and Controlled Notifiable Conditions) (Miscellaneous) Variation Regulations 2021

148 of 2021

7 October 2021, Gazette No. 66 of 2021

Child Sex Offenders Registration (Savings and Transitional) Variation Regulations 2021

149 of 2021

7 October 2021, Gazette No. 66 of 2021

Criminal Investigation (Covert Operations) (Savings and Transitional) Variation Regulations 2021

150 of 2021

7 October 2021, Gazette No. 66 of 2021

Summary Offences (Savings and Transitional) Variation Regulations 2021

151 of 2021

7 October 2021, Gazette No. 66 of 2021

Surveillance Devices (Savings and Transitional) Variation Regulations 2021

152 of 2021

7 October 2021, Gazette No. 66 of 2021

Telecommunications (Interception) (Savings and Transitional) Regulations 2021

153 of 2021

7 October 2021, Gazette No. 66 of 2021

Judicial Conduct Commissioner (Savings and Transitional) Regulations 2021

154 of 2021

7 October 2021, Gazette No. 66 of 2021

Ombudsman (Savings and Transitional) Variation Regulations 2021

155 of 2021

7 October 2021, Gazette No. 66 of 2021

Police Complaints and Discipline (Savings and Transitional) Variation Regulations 2021

156 of 2021

7 October 2021, Gazette No. 66 of 2021

Independent Commissioner Against Corruption (Commission) Variation Regulations 2021

157 of 2021

7 October 2021, Gazette No. 66 of 2021

COVID-19 Emergency Response (Section 16) (Affidavits) Variation Regulations 2021

158 of 2021

14 October 2021, Gazette No. 68 of 2021

Children and Young People (Oversight and Advocacy Bodies) (Prescribed Functions and Powers) Variation 159 of 2021 Regulations 2021

21 October 2021, Gazette No. 69 of 2021

Liquor Licensing (General) (Interstate Direct Sales Licence) Variation Regulations 2021

160 of 2021

21 October 2021, Gazette No. 69 of 2021

Magistrates Court Regulations 2021

161 of 2021

21 October 2021, Gazette No. 69 of 2021

Lotteries Regulations 2021

162 of 2021

28 October 2021, Gazette No. 70 of 2021

Gaming Offences Regulations 2021

163 of 2021

28 October 2021, Gazette No. 70 of 2021

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38 THE BULLETIN December 2021

LawCare

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.

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 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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