The Bulletin - February 2020 edition

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 1 – FEBRUARY 2020

ONLINE LIVING

ELC -Year 12 Open Night: Monday 2 March 2020 6-8pm

Learn more about SAC through our student mural project, brought to life with Augmented Reality!

Congratulations to the Class of 2019!

24% of our Year 12 students were in the top 10% of all Australian ATAR scores. Special congratulations to three of our students with an ATAR over 99: Maya (99.1) Nina (99.1) and Kate (99.05).

These three young women are leaders in every sense of the word, involving themselves in a wide range of co-curricular activities and serving our school community with distinction.

A Ministry of Mercy Education Ltd

Maya Murali (99.1)

Nina Wilcock (99.1)

Kate Roocke (99.05)

53 Wakefield, Adelaide SA 5000 P+61 8 8217 3200 / registrar@sac.sa.edu.au www.sac.sa.edu.au

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (1) LSB(SA). ISSN 1038-6777

CONTENTS ONLINE LIVING

REGULAR COLUMNS

6

What your FOMO has to do with e-commerce design – By Thyme Burdon

10

Consumer of legal services in an OnLife world – By Assoc Prof Tania Leiman

32

How ‘FloatLegal’ will assist in providing effective legal services & improve access to justice

By Vanessa Hutchens

14

Report released on social media & juries – By Jemma Holt

FEATURES & NEWS

16

Consumer data right scheme begins roll-out – By Alison Bradshaw

13

Diabetes SA chosen as President’s Charity – By Tim White

18

Loot boxes in Australia: Gaming or gambling – By Jamie Nettleton & Aleksandra Pasternacki

21

New judicial appointments

30

Vale: Mark Griffin QC

38

OPCAT is coming: time for SA to set up monitoring system for places to detention – By Laura Grenfell

22

The importance of website accessibility for legal services – By Natalie Wade

24

The regulatory framework around Airbnb and other home sharing services – By Callum Ritchie & Brendan Grigg

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

T White R Sandford J Stewart-Rattray E Shaw F Bell A Nikolovski S Hooper V Gilliland

Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich T Vozzo F Bell M Mackie M Boyle E Shaw J Marsh C Charles Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members R Piccolo Ex Officio Members The Hon V Chapman, Prof R Sarre, Prof M de Zwart, Prof T Leiman

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

4

From the Editor

5

President’s Message

17

Young Lawyers: 2020 calendar

28

Risk Watch: Cybersecurity issues you must address – By Grant Feary

34

Tax Files: Land Tax Changes: Aspects of the Trust Notification Provisions & the Ex Gratia Schemes

By Bernie Walrut

40

Why Lawyers are more susceptible to anxiety & depression

By Sarah El Sayed

41

Bookshelf

44

Gazing in the Gazette

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

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

No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

PUBLISHER/ADVERTISER Boylen Level 3, 47 South Terrace, Adelaide SA 5000.

Ph: (08) 8233 9433 Fax: (08) 8212 6484 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038.

Ph: (08) 8376 1188

FROM THE EDITOR

Evidence must be the basis on which decisions are made

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

H

ello and welcome to 2020. While the new year (and in this case, new decade) usually brings a sense of optimism and promise, the beginning of this year has taken a somewhat grave, even apocalyptic, feel as Australia has suffered through catastrophic fires, followed almost immediately by Biblical hail and dust storms.

The environmental disaster has well and truly placed climate change at the topic of the national agenda. And while this is not the forum to be debating climate science, it has been rather disheartening to see a problem whose solution should be based on the scientific evaluation of data become a political football in the so-called culture wars.

The trivialisation of evidence in favour of ideology and vested interests is something that lawyers especially should resist. After all, it is evidence (or lack thereof) that legal practitioners rely on to competently represent their clients. It is the dispassionate investigation, scrutiny, interrogation and assessment of evidence that leads us to truth and justice.

Law Society President Tim White has said he wants to highlight the valuable work that lawyers do in pursuing justice and supporting the community. Not so the profession can bask in self-praise, but to challenge misleading perceptions about the motives of lawyers and draw attention to the role that lawyers play in creating a fair society, as idealistic as that might seem.

Using the recent fires as an example, we have seen lawyers from across Australia unite in a bid to contribute to the recovery effort. In SA, a number of lawyers have signed up to provide free legal advice to victims of the disastrous fires that have ravaged parts of mainland

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SA and Kangaroo Island. The obligation that most lawyers feel to help the community especially those in need, should be acknowledged, even if those who put their hand up to help never seek acknowledgment.

With a proposal to overhaul the Family Court, a Royal Commission into Aged Care, a Religious Freedoms inquiry, and the myriad legal issues that are likely to arise from probable reforms to disaster management, it is going to be a year that will challenge the country’s legal structures, and lawyers will play a vital role in ensuring that the Rule of Law and human rights of individuals are protected.

In this edition, we tackle the phenomenon of online living, exploring the implications of a world where our day to day tasks are conducted virtually.

We examine issues ranging from online shopping traps, the relationship between online gaming and gambling, how to make the internet more accessible, the influence of social media in jury trials, and pertinently, the rise of legal services being delivered online and the impact of this technology on the practice of law. B HAVE YOUR SAY. In the July edition of the Bulletin, you get to set the agenda.

Tell us what issues you think the profession needs to know about and why.

Pitch an article that you think the profession would be interested to read, and we'll aim to publish it.

Contact the editor, Michael Esposito, at bulletin@lawsocietysa.asn.au.

14

SOCIAL MEDIA & JURIES Addressing the risk of juror prejudice in the social media age

16

PRIVACY PROTECTION Rolling out the Consumer Data Right Scheme

30

VALE: MARK GRIFFIN QC Family & friends pay tribute to a giant of the profession

PRESIDENT’S MESSAGE

My 2020 vision: Maximise opportunities & improving perception of lawyers TIM WHITE, PRESIDENT

I

am delighted to have been elected as President of the Law Society of South Australia and look forward to the honour of continuing the work and traditions of a number of amazing men and women who have previously served in the role.

It is a group that I feel somewhat nervous about joining, but at the same time am truly excited by the prospect.

I decided to nominate for President, not with any set political goal or entrenched aspiration, but with a view to giving back to the profession which has served me so very well both personally and professionally.

The last 23 years practising the law has been both enjoyable and rewarding for me.

This year my focus will be on boosting the profile, reputation and work of the South Australian legal profession and standing up for the Rule of Law. The Society has important roles as a regulator of the profession, provider of essential services to the profession, and as the chief advocate on behalf of the profession.

I am hopeful we can improve the perception of lawyers and successfully challenge some of the misguided stereotypes about lawyers by highlighting and acknowledging the good work that many of our Members do that have a positive impact on the State, by fighting for the rights of indviduals, helping to resolve disputes, facilitating business and protecting the fundamental Rule of Rule principles that underpin our democracy.

The key issues I plan to focus on this year include:

INTERACTION AND CONNECTION WITHIN THE PROFESSION AND WITH OTHER PROFESSIONALS One of my main objectives for 2020 is to improve the interaction and connection between lawyers in SA and other professionals. Who an individual obtains

legal advice from in relation to a business or personal matter is often determined by personal relationships. People seek advice from those they know well. Therefore, I aim to host events aimed at assisting Members to build relationships with other professionals.

IMPROVING THE PERCEPTION OF THE PROFESSION IN THE COMMUNITY Another aligned focus of mine in 2020 is to try and improve the legal profession’s credibility and respectability in the community. Lawyers are often targets of adverse media publicity that is not deserved.

We need to do more to connect with members of the public and communicate with them more regularly, openly and consistently. We must be more transparent, accessible and relatable to members of the public. That means broadcasting the good news stories and regularly communicating with the public about the role of lawyers.

ASSESS THE MERITS OF SA JOINING THE LEGAL PROFESSION UNIFORM LAW The profession each year continues to become increasingly nationally focused.

South Australia should embrace the opportunities that a national profession can create. The Legal Profession Uniform Law, which allows solicitors to work across State boarders much more readily, was adopted in NSW and Victoria in 2015. It is being implemented in Western Australia in July 2020. The Society will continue to watch the developments in WA and assess if it is in the best interests of the majority of practitioners in SA for us to also join that national scheme.

EXPANDING LEGAL MARKETS FOR SOUTH AUSTRALIAN PRACTITIONERS The 2018 National Profile of Solicitors Report, compiled by the

law societies from around Australia, revealed that solicitor numbers over the seven-year period prior to 2018 grew by 33% in NSW, 32% in Victoria, 39% in Queensland and by only 7% in South Australia. SA recorded the slowest growth in solicitor numbers in the nation over the period.

Are we content with that disproportionate growth trend continuing in the future? Or do we want to make concerted efforts to attract and expand the legal markets for practitioners in SA? I am aiming for the latter.

Rapid changes in the business industry has created both serious challenges and exciting opportunities for the profession. This edition of the Bulletin focuses on “online living” and explores, among other things, the implications of the growth in the digitisation of legal services. Increasingly, potential clients use online sources to locate a suitable lawyer, make inquiries with a firm to determine if they can assist with their specific problem, and to determine your credibility and experience.

Many firms already provide legal products and services online direct to clients, often never meeting the client in person. To remain relevant and useful to our potential clients it is clearly vital that we all remain informed and utilise technology where possible to engage with existing and new clients.

In closing many issues will arise during the year that the Society will respond to and represent the profession on. I aim to be both visible and accessible and to work closely with the Members of the Society’s Executive and Council, the staff of the Society and the members of the profession. I am keen to meet with as many Members as I can, ascertain your views, issues and concerns and do what I can to assist in the practice of the law. B February 2020 THE BULLETIN

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ONLINE SHOPPING

TO MISLEAD OR DECEIVE BY DESIGN: WHAT YOUR FOMO HAS TO DO WITH E-COMMERCE DESIGN THYME BURDON, SENIOR LAWYER, AUSTRALIAN COMPETITION & CONSUMER COMMISSION

A

s consumers increasingly shop online, online business practices are increasingly falling under the regulatory spotlight. In particular, certain practices employed by e-commerce businesses in the designs of their websites and applications are coming under increased scrutiny due to their potential to mislead or deceive consumers.

This article provides an overview of these practices, often referred to as “dark patterns”, with reference to the Australian context.

DARK PATTERNS IN USER INTERFACE DESIGN The design of a website or app’s user interface (UI) is an important factor in determining the success or failure of an e-commerce business. UI refers to the outward look, feel and interactivity of a website or app and UI design choices include all the visual and interactive elements that a user encounters, including copy, typography, colour schemes, layout, icons, buttons and imagery.1 To maximise conversion (the number of visits resulting in sales) an e-commerce UI aims to facilitate seamless browsing, selection and purchasing for the user.2 Dark patterns are described as manipulative elements of UI design that aim to benefit e-commerce businesses by steering, deceiving or coercing consumers into decisions that they might not make if fully informed and capable of selecting alternatives.3 Such practices may result in consumers purchasing unnecessary goods or services or sharing more personal data than they would otherwise choose to.

6 THE BULLETIN February 2020

TAXONOMY A recent study of “dark patterns” by academics from Princeton University examined the world’s top 11,000 Englishlanguage shopping websites and found that approximately 11% of the sites surveyed contained practices falling within the categories described below.4 • Sneaking: Attempts to misrepresent user actions or hide or delay information that consumers would likely object to. Examples include: ○○ Sneaking products into shopping carts, often described as “necessary” or “bonus”. ○○ Imposing undisclosed and unexpected fees at the final stage of checkout (also known as “drippricing”). ○○ Charging a recurring fee under the guise of a one-off charge or after a consumer provides payment details to secure a free trial (also known as “hidden subscription”).

• Urgency: Imposing prominent deadlines on sales to accelerate purchases, e.g. countdown timers and limited-time messages without a specific deadline. The Study found a high number of fabricated countdown timers upon examination of the website code.

• Misdirection: Use of language, visuals and emotion to steer consumers away from or towards a particular choice without actually restricting the choices available. For example: ○○ Wording an option to decline

•

•

•

•

an offer in a way that shames a consumer into opting-in. E.g., an option to decline a discount in exchange for receiving marketing material worded as ‘No thanks, I prefer to pay full price’ (also known as “confirmshaming”). ○○ Making the business’ preferred option more prominent and its non-preferred less prominent or greyed-out to give the impression that it is unavailable. ○○ Using confusing double negatives in combination with check boxes, e.g.

“Uncheck the box if you prefer not to receive email updates”.

Social proof: Referring generally to what other consumers may have done or be doing. E.g. testimonials of uncertain origin and activity notifications (“57 people are looking at hotels in Glenelg right now”). Again, the Study found a number of examples of fabricated activity notifications upon examination of the website code.

Scarcity: Signalling high demand or limited availability to increase perceived value and desirability. E.g. low stock inventory figures and high-demand messages.

Obstruction: Making certain actions difficult in order to dissuade consumers from taking those actions and not making the process clear up-front. E.g. subscriptions that are easy to sign up to, but hard to cancel.

Forced action: Requiring consumers to take certain additional and tangential

ONLINE SHOPPING

ONLY

1 REMAINING! SALE ENDS IN

09:59

22 PEOPLE LOOKING AT THIS ITEM

*SHIPPING COSTS APPLY

actions to complete tasks. E.g. requiring account creation before consumers can view products, which enables the business to extract personal information from the consumer whether they purchase or not.

HOW DO DARK PATTERNS WORK? “Dark patterns” work by exploiting common consumer behavioural biases including:5 • Anchoring effect: excessively relying on past information in future decisions.

• Bandwagon effect: valuing something more because others seem to value it.

• Default effect: sticking with options assigned by default due to inertia.

• Framing effect: reaching different decisions based on the same information depending on how it is presented.

• Scarcity bias: placing higher value on things that are scarce.

• Sunk cost fallacy: continuing an action following investment of resources (e.g. time or money) even if doing so might make you worse off.

Sales techniques targeting consumer behavioural biases are nothing new, e.g. use of the line “while stocks last” to invoke a sense of urgency. However, some studies have shown that individuals pay less attention online than in the offline world, 6 and so consumer behavioural biases may be easier to exploit online.

Coupled with this is the complete control an e-commerce business has over the consumer journey through careful UI

design. Further, once a website or app goes live the collection of granular data revealing powerful insights about user behaviour and preferences and A/B testing (making different versions of a website or app available to different users)7 allow for continuous refinement of UI to further improve conversion.

Accordingly, the practices described above may be more effective pursued online than in an offline environment and despite being a headache for regulators, practices that might be considered “dark patterns” may be very attractive to e-commerce businesses where they are proven to result in higher conversion rates.

Whilst the focus of this article is e-commerce, the ACCC’s recent Digital Platforms Inquiry, which predominantly examined the practices of Facebook and Google, found that these digital platforms’ UI may also be designed in a way that targets common consumer behavioural biases to makes it less likely for users to opt-out of privacy-intrusive settings.8

LOCAL CONTEXT The core provisions of the Australian Consumer Law (ACL)9 are technologyneutral and consumers have the same legal protections when shopping online as they do in brick-and-mortar stores. The ACL applies where businesses are found to be “carrying on business” in Australia. Courts have interpreted this term broadly and found that it does not require a business to have a physical presence, employees or subsidiaries in Australia.10

The ACCC has pursued a number of practices falling within some of the categories identified above that could be described as “dark patterns”.

These cases have been taken under the general prohibitions on misleading or deceptive conduct and false or misleading representations about goods or services.11 Examples include: • Drip pricing: In 2015, the Federal Court found that both Jetstar and Virgin had misled consumers by drawing them into an online purchase process with a headline price that did not adequately disclose additional fees and charges applied later in the checkout process.12 The same year, the ACCC also accepted undertakings from accommodation platforms eDreams and AirBnB to improve their up-front disclosures about mandatory service and cleaning fees applying to bookings made via their sites.13 • Subscription traps: In 2016, online retailers Fabletics and Scootprice cooperated with the ACCC to change their websites to make ongoing membership fees clearer and more prominent in communications to consumers and throughout the checkout process following concerns that consumers were unaware that they had signed up to recurring monthly subscription payments and had difficulty cancelling memberships.14 • Scarcity cues: In April, 2019, the Federal Court found that online ticket reseller Viagogo misled consumers by claiming that tickets to certain events February 2020 THE BULLETIN

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ONLINE SHOPPING

were scarce, with claims such as “less than 1 per cent of tickets remaining”, when the scarcity of the tickets only referred to the tickets sold through its platform and not those available elsewhere, e.g. direct through the event organiser.15 The Court additionally found that Viagogo failed to adequately disclose significant booking fees applied at the end of the booking process.

• Discount erosion: Whilst not a new phenomenon,16 the ease at which misleading conduct regarding discounts can occur is arguably intensified online. The ACCC currently has proceedings on foot against Kogan17 where it alleges that the online retailer increased the price of many products by at least 10% immediately before commencing a limited time 10% discount promotion and then lowered prices to pre-promotion prices shortly after the promotion ended. It is also alleged that the retailer used urgency cues such as “48 hours left” and “ends midnight tonight” to indicate that time to purchase at “discounted” prices was limited, when this was not the case.

The examples outlined above involve(d) application of the ACL’s general prohibitions where the impugned conduct was or is (allegedly) misleading or deceptive or created or creates (allegedly) false or misleading representations.

Whilst reliance on general prohibitions may require some nuanced argument at times, given the range of dark pattern

8 THE BULLETIN February 2020

typologies identified to date and the speed at which e-commerce trends and digital technologies develop, there may be some challenges for specific regulation in this area.

IN SUMMARY Practitioners should keep in mind the effects of UI design when advising clients on the application of the ACL to their websites or applications. It is possible that a combination of UI design choices may create a false or misleading representation or constitute misleading or deceptive conduct.

And for those of you just consumers not consumer-law practitioners, perhaps the FOMO18 won’t be quite so strong the next time you see that “Richard from Unley” just purchased that fancy new cordless vacuum you’re considering, there’s only three remaining and the sale ends in 10 minutes. B Endnotes 1 Interaction Design Foundation, User Interface (UI) design, 2019 < https://www.interaction-design.org/ literature/topics/ui-design> 2 Forbes Communication Council, Maximise e-commerce conversions with these 13 user interface improvements, 25 April 2018 <https://www.forbes.com/sites/ forbescommunicationscouncil/2018/04/25/ maximize-e-commerce-conversions-with-these-13user-interface-improvements/#270b884e350c> 3 The term “dark pattern” was first coined in 2010 by cognitive scientist Harry Brignull. See, Harry Brignull & Alexander Darlo (ed.), Dark Patterns <https://www.darkpatterns.org/> 4 Arunesh Mathur, Gunes Acar, Michael J. Friedman, Elena Lucherini, Jonathan Mayer, Marshini Chetty, and Arvind Narayanan, Dark

Patterns at Scale: Findings from a Crawl of 11K Shopping Websites, Proc. ACM Hum.-Comput. Interact. 3, CSCW, Art. 81 (November 2019) <https://doi. org/10.1145/3359183> 5 Ibid.

6 J. Firth et al., ‘The online brain: how the Internet may be changing our cognition’, World Psychiatry (2019/18, issue 2, pp. 119-129; A. Mangen, B.R. Walgermo, & K. Brønnick, ‘Reading linear texts on paper versus computer screen: Effects on reading comprehension’, International Journal of Educational Research, (2013) issue 58, pp. 61-68.

7 Helen Armour, ‘What is A/B testing?’, Digital Marketing Magazine (online), 22 September 2015 < https://digitalmarketingmagazine.co.uk/articles/ what-is-a-b-testing/2597> 8 Australian Competition and Consumer Commission, Digital Platforms Inquiry – Final Report, June 2019, see generally Chapter 7 (pp 374-501).

9 Schedule 2, Competition and Consumer Act 2010 (Cth).

10 Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224.

11 ss 18 and 29 ACL. 12 Australian Competition and Consumer Commission v Jetstar Airways Pty Limited [2015] FCA 1263.

13 ACCC Media Release, Airbnb and eDreams give undertakings to ACCC for improved pricing practices, 13 October 2015 <https://www.accc.gov.au/mediarelease/airbnb-and-edreams-give-undertakings-toaccc-for-improved-pricing-practices> 14 ACCC Media Release, ACCC warns consumers to beware of subscription traps, 22 June 2016 <https:// www.accc.gov.au/media-release/accc-warnsconsumers-to-beware-of-subscription-traps> 15 Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544.

16 See, e.g. Australian Competition and Consumer Commission v Jewellery Group Pty Ltd [2012] FCA 848.

17 ACCC Media Release, Kogan in Court for alleged false or misleading advertisements, 23 May 2019 < https://www.accc.gov.au/media-release/koganin-court-for-alleged-false-or-misleading-discountadvertisements> 18 For the uninitiated, according to the Macquarie Dictionary FOMO is ‘a stressful state of mind induced by the fear of missing out on something’.

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ONLINE LAW

Consumers of Legal Services in a Onlife World TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY

“V

irtually everyone has a smartphone in their pockets, connecting them to just about every aspect of their lives… a device that”s always on and always connected”1, no longer any dichotomy between online and offline.2 This “onlife” is our “new experience of a hyperconnected reality”.3 We connect, shop, bank, access government services, pay tax, socialise, consume news and current affairs online. We expect to be able to purchase products customised to our characteristics and preferences “when [we] want, how [we] want”,4 with “self-service tools that empower [us] to find quick answers on [our] own,” and “when [we] do need more personalised help, [we]”re not apt to wait on hold.”5 We interact regularly with automated services (often without even being aware they are automated), and “major decisions that shape our lives – whether or not we are offered employment, a mortgage, insurance, credit, or a government service” are increasingly made via “automated eligibility systems, ranking algorithms and predictive risk models” with claims of greater efficiency and accuracy. 6 Automated tools resolve disputes online too.7 Each onlife interaction generates behavioural data which in turn predicts future behaviour and fuels the value of the platforms8 which give us which access to each other and make us “legible” or visible to those “seeking to market goods and services” to us. 9 “Platforms - including online marketplaces, desktop and mobile computing environments, social networks, virtual labor exchanges, payment systems, trading systems, and many, many more – have become the sites of ever-increasing amounts of economic activity and also of ever-increasing amounts of social and cultural activity [reshaping] work, finance, information transmission, entertainment, social interaction, and consumption of goods and services, and [destabilising] the locally embedded systems that previously mediated those activities in many different

10 THE BULLETIN February 2020

types of communities.”10 We accept cookies, divulge personal details, sacrifice privacy and agree to detailed terms and conditions online (usually without reading them) as part of a Faustian bargain of convenience enabling our access to abundant free information 24 hours a day, now raising wide concerns about surveillance and privacy.11

SEARCHING ONLINE A common first step when encountering a problem in this onlife world is a search online – an estimated 6+ billion Google searches were processed per day in 2019, 12 each generating yet more valuable data. Search engines crawl, index and rank via relevance all available content on the internet.13 Sophisticated search engine optimisation (SEO) functions locate and rank content as relevant. 14 Messaging applications interact with consumers enabling further personalisation in information provided.

Increasingly such applications are powered by chatbots working independently from humans, responding to human queries “based on a combination of predefined scripts and machine learning applications” via text messages to specific commands (“rule-based chatbots”) or to natural language queries (“artificial intelligence chatbots”).15 The more sophisticated the underlying software and the more data it can access, the more complex the chatbot can be16 - and software is developing fast, with data gathering increasing even faster.17 Many businesses now use scaleable, affordable, cloud-based software to provide personalised information or auto-filled documents via their websites – all conveniently accessible to consumers 24 hours a day without the need to travel or call. Rapid developments in machine learning and natural language processing tools promise even greater capacity to review and compare documents, customise, personalise, anticipate needs and desires, predict behaviour and suggest solutions.

THE LANDSCAPE HAS CHANGED The legal information landscape has “irrevocably changed” too.18 Introduction of electronic resources in 1970s and commercialisation of those resources in the 1980s changed the way lawyers accessed the law but remained largely out of reach to the public. The arrival of CD ROMs in the early 1990s was overtaken by “advances in the World Wide Web [which allowed] publishers to provide online access to their publications.”19 “Since the mid 1990s, there has also been a strong move to unlimited free web access to legal materials across the globe” (e.g. AustLII, BAILII). 20 Public sector agencies and private enterprises now routinely provide extensive legal information for free via publicly accessible websites. Legal tech has blossomed across jurisdictions and across the cost spectrum, including “specialised standalone technologies, such as legal chatbots, apps and virtual assistants; enablers of legal advice such as legal automated drafting, legal document review and legal algorithms; further enablers of legal advice such as legal data analytics and predictors, and legal artificial intelligence; automation of legal advice with truly smart contracts; and sets of [automated legal advice technologies] enabling NewLaw business models and legal technology companies.”21 Tech-enabled tools are fuelling commodization22 and productization23 - reframing what were traditionally services into products sold online more cheaply to multiple users in high volumes.24 Services traditionally provided by lawyers (e.g. wills, agreements, other legal documents) are increasingly reframed as customisable products – for fixed fees (often low or no cost), available instantly. Even courts are moving online.25 Despite the hype, so-called “smart contracts” hosted on a blockchain, where “code is the only valid expression of a contractual agreement between the parties”26 are not yet widely in use. By contrast, “e-contracts” (with “computable parts such as data fields, rules and

ONLINE LAW

similar…intended for subsequent contract automation operations, such as drafting, negotiation, monitoring and enforcing”) have led to development of various contract automation systems, and the capacity to “link contract terms to transactions and processes, to increase efficiency and monitor the actions of the parties.”27 Many of these tools are proprietary, costly, available to high-end users only, and largely opaque; only a few are open source and free.28

LAW OUT OF REACH? All this is happening in a context where those needing legal solutions face the “morefor-less challenge”: “many business people confess that they cannot afford lawyers and often have to run the risk of working without legal guidance. … although the law is central to all of our loves, dramatic decreases in public legal aid mean, effectively, that only the very rich or the very poor any longer have the means to afford the services of lawyers.”29 The Productivity Commission has acknowledged this “missing middle”30: “the cost of legal representation is beyond the reach of many, probably most, ordinary Australians. … In theory, access to that legal system is available to all. In practice, access is limited to substantial business enterprises, the very wealthy, and those who are provided with some form of assistance.”31 This is the space in which disruptive innovation can flourish.32

OPPORTUNITY TO INNOVATE? Susskind predicts “[t]he bespoke specialist who handcrafts solutions for clients will be challenged by new working methods, characterized by lower labour costs, mass customization, recyclable legal knowledge, pervasive use of advanced technology and more.”33 The changing landscape briefly described above shows this is already well underway, with more on the horizon, bringing opportunities for increasing access to legal services, but also concerns about quality and reliability and protection of consumers.

However much we might argue about these or whether providers are reputable or appropriately qualified or insured, these tech-enabled automated, personalised products may be “good enough” for many who would not otherwise recognise their issue as a one that would benefit from a legal solution or who would not make the decision to pay for advice from a lawyer - an example of the “low end foothold” of disruptive innovation.34 Although first iterations of these products may be clunky, as adoption becomes more widespread and datasets grow there is greater incentive to invest in further improving and refining quality and finding new applications for use (c.f. the multiple iterations of digital imagery since Eastman Kodak engineer Steve Sasson invented the first digital camera in 197535). However, this also risks even further disconnect between those who can afford bespoke lawyers augmented by high tech tools and those accessing cheaper or free “good enough” tools.

EMPOWERING OR DIVIDING? 91% of Australians have a smartphone device36 – a gateway with significant potential to empower consumers of legal services and products. But it can only do so where they can identify that a legal issue exists, the tools are accessible and affordable, any information or advice is sufficiently individualised, accurate, reliable and relevant. Increasing the level of legal literacy in our community will thus be critical to inform and equip users to make effective use of this opportunity and evaluate the products they access.

Ironically though, for those with limited effective internet access or no access at all, the “digital divide” can magnify already existing disadvantage.37 Those groups identified by the Australian Human Rights Commission as most impacted by lack of access to the internet and lack of confidence engaging online38 coincide with the 13 broad population groups identified by the Justice Project Final Report as

experiencing most disadvantage in accessing legal services.39 As illustrated by the recent Robo-Debt example,40 automated decision making tools can even further entrench inequality for vulnerable groups.

While a hyperconnected reality offers new possibilities to consumers seeking legal solutions, unless it is extended to all and concerns are addressed, we risk missing an opportunity to substantially increase access to justice. B Endnotes 1 Ashley Unitt, “10 Trends Changing Customer Expectations” https://www.vonage.com/ business/perspectives/10-trends-changingcustomer-expectations/ 2 Mirielle Hildebrandt, Smart Technologies and the End(s) of Law, (Edward Elgar, 2015),42.

3 Luciano Floridi, “Introduction”, in Luciano Floridi (ed), “The Onlife Manifesto. Being Human in a Hyperconnected Era” (Springer, 2015), 1. https://link.springer.com/content/ pdf/10.1007%2F978-3-319-04093-6_1.pdf; Hildebrandt, above n 2, 42.

4 Brett T Sullivan, “Packaging Legal Services as Products” Lucent Law PLLC, 2016 https://www. slideshare.net/GregMcLawsen/packaging-legalservices-as-products 5 Salesforce Research, State of the Connected Customer (2nd ed, 2018) https://www.salesforce. com/research/customer-expectations/# 6 Virginia Eubanks, Automating Inequality. How High-tech Tools profile, Police, and Punish the Poor (St Martin”s Press, New York, 2017) p. 3 7 Jeremy Barnett, Philip Treleaven, “Algorithmic Dispute Resolution—The Automation of Professional Dispute Resolution Using AI and Blockchain Technologies”, The Computer Journal, Volume 61, Issue 3, March 2018, Pages 399–408, https://doi.org/10.1093/comjnl/bxx103; 8 Shoshana Zubof , Surveillance Capitalism (Profile Books, London, 2019) 9 Julie E. Cohen, “Law for the Platform Economy,” U.C. Davis Law Review 51, no. 1 (November 2017): 133-204, 137 10 Cohen, above n.9, 136-7 11 See for example Zuboff above n 8 12 https://ardorseo.com/blog/how-many-googlesearches-per-day-2019/ 13 https://moz.com/beginners-guide-to-seo/whysearch-engine-marketing-is-necessary 14 https://support.google.com/webmasters/ answer/7451184?hl=en 15 https://www.practicalecommerce.com/WhatAre-Chatbots-and-How-Do-They-Work 16 https://bigdata-madesimple.com/how-dochatbots-work-an-overview-of-the-architectureof-a-chatbot/ 17 Zuboff above n 8 18 Wardell, K 2009, “From caveman to casebase:

February 2020 THE BULLETIN

11

FEATURE

the evolution of legal research through the technological age”, paper presented to the Australian Law Librarians” Association (ALLA) Evolution Conference, Darwin. NT, 2-4 September.

Conference paper uploaded with the permission of the Convenor of the 2009 ALLA Evolution Conference https://epubs.scu.edu.au/cgi/ viewcontent.cgi?article=1014&context=lib_pubs 19 Wardell above n 18, 3.

20 Wardell above n 18, 4.

21 See e.g. Judith Bennett, Tim Miller, Julian Webb, Rachelle Bosua, Adam Lodders & Scott Chamberlain, Current State of Automated Legal Advice Tools Networked Society Institute Discussion Paper 1 April 2018, 5 https:// networkedsociety.unimelb.edu.au/__data/ assets/pdf_file/0020/2761013/2018-NSICurrentStateofALAT.pdf; 22 Richard Susskind, Tomorrow”s Lawyers. An introduction to your future (Oxford, 2nd ed, 2016)25-31 23 Aebra Cole, “Why Selling Products May Be The Future For Law Firms” Law 360 5 April 2018 https://www.legalmosaic.com/wp-content/ uploads/2018/04/Why-Selling-Products-MayBe-The-Future-For-Law-Firms-Law360.pdf; Joel Barolsky, “Legal products: A new trick for

old dogs” Financial Review, 28 November 2019 https://www.afr.com/companies/professionalservices/legal-products-a-new-trick-for-old-dogs20191126-p53e32 24 Barolsky, above n 23 25 E.g. http://www.courts.sa.gov.au/Pages/default. aspx; http://www.sacat.sa.gov.au/; https:// civilresolutionbc.ca/ 26 Governatori, G., Idelberger, F., Milosevic, Z. et al. On legal contracts, imperative and declarative smart contracts, and blockchain systems. Artif Intell Law 26, 377–409 (2018) doi:10.1007/ s10506-018-9223-3, 384 27 Governatori et al, 384 28 E.g. docassemble https://docassemble.org/ 29 Richard Susskind, Tomorrow”s Lawyers (Oxford University Press, 2nd ed, 2017) 5 30 Productivity Commission 2014, Access to Justice Arrangements, Inquiry Report No. 72, Canberra, 641 https://www.pc.gov.au/inquiries/completed/ access-justice/report/access-justice-volume2.pdf 31 Chief Justice of Western Australia, Wayne Martin quoted in Productivity Commission above n 30, 6 32 Clayton M. Christensen, Michael E. Raynor & Rory McDonald, “What Is Disruptive Innovation?”

Harvard Business Review December 2015 https://

hbr.org/2015/12/what-is-disruptive-innovation; Rebecca L. Sandefur, “Access to What?” (2019) 148 (1) Winter, Dædalus, the Journal of the American Academy of Arts & Sciences, 54 https://www. amacad.org/sites/default/files/publication/ downloads/19_Winter_Daedalus_Sandefur.pdf 33 Susskind, above n 29, xix 34 Christensen et al, above n 32.

35 Michael Zhang, The World”s First Digital Camera by Kodak and Steve Sasson, (PetaPixel, 5 August 2010) https://petapixel. com/2010/08/05/the-worlds-first-digitalcamera-by-kodak-and-steve-sasson/ 36 Deloitte, “Mobile Consumer Survey 2019”, https://www2.deloitte.com/au/mobileconsumer-survey 37 Australian Human Rights Commission, 8 A right to access the Internet, https://www.humanrights. gov.au/our-work/8-right-access-internet 38 Australian Human Rights Commission above n 38.

39 Law Council of Australia, The Justice Project 2019 https://www.lawcouncil.asn.au/justice-project/ final-report 40 https://www.abc.net.au/news/2019-09-17/ centrelink-robodebt-class-action-lawsuitannounced/11520338

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 20 NOVEMBER 2019 Meeting with the Attorney-General he President, Amy Nikolovski, President-Elect, Tim White, Chief Executive, Stephen Hodder and Policy Lawyer, Anna Finizio met with the Attorney-General, the Honourable Vickie Chapman MP. Matters discussed included the appointment of Senior Counsel; the appointment of Judges to vacancies on the Supreme Court and the Court of Appeal; the Legal Profession Uniform Law; and the Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Bill 2019.

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28, 29, 30 NOVEMBER 2019 Meetings of Law Society Presidents, Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA Amy Nikolovski (as President and also as Society appointed Director of the LCA), Tim White and Stephen Hodder variously participated in the above quarterly meetings, which were held in Canberra.

Key topics of discussion included the 2020

12 THE BULLETIN February 2020

Law Council President’s objectives; the ongoing review of the Australian Solicitors’ Conduct Rules; and various internal policies and governance and financial matters relating to the LCA.

2 DECEMBER 2019 Meeting with Labor Parliamentarians re foreign lawyers legislation The amendments to the Legal Practitioners Act 1981 (SA) to introduce regulation for foreign lawyers were discussed by Amy Nikolovski and Anna Finizio at a meeting with Mr Christopher Picton MP and the Honourable Ian Hunter MLC.

6 DECEMBER 2019 Meeting with The Hon. Irene Pnevmatikos MLC The Society’s concerns with an amendment to the Labour Hire Licensing (Miscellaneous) Amendment Bill 2019, that sought to include “legal practice work” as part of the labour hire licensing scheme in SA were raised by Amy Nikolovski and Anna Finizio at a meeting with the Honourable Irene Pnevmatikos MLC.

11 DECEMBER 2019 Meeting with the Chief Justice Matters discussed by Amy Nikolovski, Tim White and Stephen Hodder at their meeting with the Chief Justice included the appointment of Senior Counsel; the Society’s proposal for the introduction of mandatory Continuing Professional Development in Bullying, Discrimination and Harassment, and in wellbeing and resilience; and setting down fees. B

MEMBERS ON THE MOVE

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etired District Court judges David Smith and Jack Costello have both recently begun practising out of chambers on 30 Market St Adelaide.

Mr Smith is practising as a barrister and is available to conduct mediations and undertake general consulting work, while Mr Costello will focus solely on mediation work. Mr Smith can be contacted at: Davidwsmith5491@ gmail.com or 0402133323. Mr Costello can be contacted at: jack@costellojk. com.au or 0403795475.

CHARITY

Society President explains why Diabetes SA is such a worthy charity to support TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

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am delighted to welcome Diabetes SA as the President's Charity for 2020 Each year, the President of the Law Society selects a charity partner and this year’s President Tim White said that Diabetes SA was a charity that was close to his heart.

Mr White has an immediate family member who was diagnosed with type 1 diabetes over 40 years ago and has firsthand seen the impact the condition can have on a person and their family.

“It was an obvious choice to choose Diabetes SA as this year’s charity partner,” Mr White said.

“I have always wanted to give back to this organisation in some way and this provided the perfect opportunity.

I’m really looking forward forward to seeing the two organisations work closely together this year.”

Diabetes is a condition that affects millions of people in Australia and impacts people of all ages.

As someone who is passionate about health and fitness, Mr White is keen to spread the message about the importance of a healthy lifestyle to reducing the risk of complications, as well as the numerous other benefits of physical activity.

“My family life, personal life, and

Former nurse and St John Ambulance volunteer Rita Handley was diagnosed with type 2 diabetes in 1987.

Read her story at www.diabetessa.com.au/Web/Media/Story/Rita

working life have benefitted immensely from regular exercise, and I have even been fortunate enough to run in 13 marathons, Mr White said. “Hopefully I have another few left in me!”

Mr White said he hoped that by partnering with Diabetes SA it can further assist lawyers in being aware of the importance of balancing their busy and stressful lives with some exercise and healthy activities, including healthy eating.

“Being a lawyer involves long hours of being at your desk and basically being inactive,” he said.

Hopefully partnering with Diabetes

SA will encourage lawyers to maintain a regular exercise regime and a healthy diet, which will go a long way in minimising the chances of being diagnosed with diabetes.

The Law Society and Diabetes SA will run a number of initiatives this year to raise funds and awareness for the important charity.

“We hope the profession can come out and support these initiatives,” Mr White said.

“We are very excited about the year ahead and encouraging lawyers to improve their health and wellbeing.” B

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Updated and improved juror education recommended to address jurors’ use of social media and the internet JEMMA HOLT, RESEARCH FELLOW & ACTING EXECUTIVE OFFICER (RESEARCH), TASMANIA LAW REFORM INSTITUTE This year, the South Australian Law Reform Institutes will conduct research into the influence of social media on jury trials. Jemma Holt reports on the findings of the Tasmania Law Reform Institute’s recent report on the issue, as she plans to return to SA after a stint in Hobart to work for the Director of Public Prosecutions and assist SALRI with it project - The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders

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n 22 January, the Tasmania Law Reform Institute released a Final Report entitled Jurors, Social Media and the Right of an Accused to a Fair Trial. The Report is the culmination of extensive research and community consultation between 2018 to present about jurors’ use of social media and the internet during criminal trials.

it is one which must be addressed. That is particularly the case given the general perception within the legal community and public at large is that juror misconduct of this kind is prevalent. If measures are not put in place to respond to misuse – real or perceived – public confidence in the criminal process will be undermined.

JURORS & SOCIAL MEDIA: UNKNOWN, UNKNOWABLE AND UNAVOIDABLE.

JURORS’ NET USE - A MULTI-FACTORED AND MULTI-DIRECTIONAL PROBLEM

There has been one documented case in Tasmania in 2015 of juror/s accessing online information in the course of deliberations. However, the actual prevalence of the practice is likely to be much higher, something evidenced by documented misuse of internet devices by jurors in other jurisdictions within and outside Australia. Indeed, all indications are that the reported cases represent the bare minimum of cases of misconduct of this kind, and there is no way of properly assessing or measuring its actual prevalence.

What does present itself as a constant, known quantity is the gravity of the risk: the risk that an accused’s fundamental right to a fair trial before an impartial jury is adversely affected. Every juror or prospective juror carries this risk and the act of only one of those persons can undermine the trial process. This makes identifying and managing the risk in the immediate sense challenging, but given its impacts on the administration of justice

Historically, the legal profession has been concerned with the so called ‘Googling juror’. That is, someone who intentionally and defiantly uses the internet to search for trial related information while sitting as a juror in a criminal trial.

The Institute’s report demonstrates that the issue is much broader.

Juror misconduct may involve both ”information in” and “information out” uses of social media and/or the internet.

It may also involve wilful disobedience to directions but also unintentional acts by jurors who believe they are doing the right thing. For instance, jurors accessing the news, entertainment or social media sites via their internet connected devices during the trial may inadvertently or passively be influenced by information, online sentiment and/or unsolicited communications relevant to the matter.

That, in turn, may impact upon their ability to perform their role.

Jurors’ habitual use of social media and/or other internet platforms may cause

14 THE BULLETIN February 2020

jurors to fall into misconduct by way of “information out”. That is, the desire to continuously share and to be constantly connected causing jurors to publish material online, without fully appreciating the consequences of such behaviour in the context of their role and obligations as a juror.

The reasons why a juror may intentionally go online are not always straightforward either. It may be the product of confusion about and/or frustration with the trial process and/or a genuine belief that their actions are in the pursuit of ‘fairness’ or discovering the truth.

ENSURING A FAIR TRIAL - EDUCATION, NOT PUNISHMENT In its report the Institute concludes that jurors themselves must understand the wide range of possible juror misconduct involving social media and the internet.

It subsequently identifies juror education as key to addressing jurors’ use of social media and the internet during criminal trials. This requires changing court procedure rather than making substantive changes to legislation.

Prospective jurors receive introductory training/information at the courthouse before they are chosen as jurors for a particular trial and, once they have been chosen to sit on a trial, they receive instructions – directions - thereafter from the trial judge. The Institute recognises these as two areas in which significant work can be done.

The report recommends that the introductory training/information for jurors is improved and updated and that standardised directions are introduced, like the model directions on this topic that are used by judicial officers in Victoria and New South Wales.

The Institute notes that, should properly educated jurors ignore such training and directions, and breach their duties, then punishment may be appropriate. However,

ONLINE LIVING

it concludes that current Tasmanian laws available are adequate for the small role that punitive measures ought to play in addressing this issue.

The Institute’s recommendations and the full text of the report is available under the ‘Juries & Social Media’ tab at: https:// www.utas.edu.au/law-reform/publications/ completed-law-reform-projects The project was funded by a grant from the Law Foundation of Tasmania. It

CRICOS no: 00603F

benefited from valuable collaboration with the South Australia Law Reform Institute.

In 2020, the South Australian Law Reform Institute will conduct research and community consultation in South Australia on a similar project - The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders.

Jemma Holt has been living and working in Hobart, Tasmania, in 2019. During that time, she worked part time at the Tasmania Law

Reform Institute and part time as Crown Counsel for the DPP in Hobart. In 2020 she returns to practice in Adelaide at the DPP. She will continue her ties with the University of Tasmania, recently appointed as a Clinical Lecturer with the Faculty of Law at the University of Tasmania until 2022. In 2020 she will also assist the South Australian Law Reform Institute as a Project Officer/ Researcher with their related project The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders. B

February 2020 THE BULLETIN

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FEATURE

Consumer Data Right Scheme begins roll-out ALISON BRADSHAW, CHAIR, BULLETIN COMMITTEE

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n 2017, the Australian Government announced it would implement a Consumer Data Right (CDR) – a right of consumers, including business entity consumers, to greater access to data held relating to that consumer and an enhanced ability to use that data by transferring it to accredited providers of products and services which may result in a benefit to the consumer.

The CDR is beginning its roll-out in the banking industry in an initiative called Open Banking. Data under “Open Banking” has been available as of 1 February, 2020.

The Government has stated that the initiative will be extended to the energy industry and then the telecommunications industry. Additional industries may be added over time. The CDR arose from recommendations made by a number of competition, banking and energy (including pricing) reviews since 2015 including the Harper Review (2015), the Murray Inquiry (2015), the Coleman Review (2016) and the Finkel Review (2017).

Under Australian Privacy Principle #12 (in the Privacy Act 1988), consumers were able to access data only about themselves.

This right did not extend to data about what they did as held by the collector. The right also did not extend to allow business entities to access “personal” information.

The CDR regime expands on this right to allow for broader access by individuals and for business entity consumers to also participate. It also shifts the operation of the regime (from the Privacy Act 1988) to the Competition and Consumer Act 2010.

The CDR covers a number of classes of data – consumer usage data (for example, how much electricity a consumer uses and when it is used), consumer payment data (for example, how frequently

16 THE BULLETIN February 2020

a consumer makes payments to a credit card and whether the entire amount is paid down in each instance) and a consents register so that a consumer can track what consents are being provided, in addition to personal information about the consumer held by a collector.

The intention is that data sets containing these classes of data may, with the active (not implied) consent of the consumer, be transferred to accredited institutions who use that data to provide goods or services (such as a comparison website which can then use the consumer’s actual usage data to provide the best possible recommendation). It should also make it easier to change suppliers by providing a common standard and format for a consumer’s data to make it easier to port from supplier to supplier without the consumer needing to supply all the details each time. The suppliers of goods or services will also be able to use the (to-be-) developed standards for the specified data sets to supply detailed information about those goods or services that can then be used to make comparisons.

The CDR envisages specific optin consents to be provided each time a consumer seeks the services of an accredited provider. The scope of the consent will be kept narrow and more detailed consents will need to be sought and provided before consumer data sets can be taken off-shore or on-sold.

The CDR will be regulated by the privacy regulator, the Australian Office of the Information Commissioner (OAIC)1 which will be the primary complaints handler. The OAIC will also consult on privacy rights in any proposal to include additional data sets or industry segments in the CDR. The Australian Competition

and Consumer Commission (ACCC) has a role in reviewing and proposing which industries may be usefully added to the CDR and proposing and managing any Consumer Data Rules which may apply to the CDR2. The ACCC will also be responsible for managing the accreditation register.

A new Data Standards Body, initially housed at CSIRO’s Data61 facility, will consult on the standards to be used by the CDR, including the technical Application Programme Interfaces (APIs) that the data sets will need to comply with in order to be transferrable between accredited institutions. These standards have not yet been finalised but version 1.0.0 was released in September 2019 for comment3.

The first stage of the CDR – the Open Banking initiative – was scheduled to be made available by the big four banks by 1 July 2019, as they already had significant and secure infrastructure available and the banking licence to which they are subject was deemed sufficient to meet accreditation requirements. All other Australian Deposit-taking Institutions will need to comply by 1 July, 2020, again relying on the banking licence to meet accreditation standards. The initiative will be rolled out across the energy and telecommunications industries and then across the broader economy. B

Endnotes 1 https://oaic.gov.au/consumer-data-right/aboutthe-consumer-data-right/ 2 Information, including the draft rules applying to the banking industry, may eb found at https:// www.accc.gov.au/focus-areas/consumer-dataright-cdr-0 3 https://consumerdatastandards.org.au/ standards/september-2019-standards-v1-0-0/

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GAMING

LOOT BOXES IN AUSTRALIA: GAMING OR GAMBLING? JAMIE NETTLETON, JOSEPH ABI-HANNA & ALEKSANDRA PASTERNACKI, ADDISONS GAMBLING LAW INTRODUCTION

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oot boxes are a common feature in video games. Any person who has played a video game online in the last decade is likely to have encountered a loot box in one guise or another. In essence, a loot box is a video game feature which enables players to earn randomised virtual items which can be used to enhance an individual’s game play or experience.1 This article will provide a legal insight into loot boxes. Globally, gambling regulators have reached divergent opinions on whether loot boxes fall within the scope of gambling. In 2018, the Australian Senate conducted an Inquiry on Gaming Micro-Transactions for Chance-Based Items (the Loot Box Inquiry).

The single recommendation of the Loot Box Inquiry report (the Report) was that a comprehensive review of loot boxes in video games ought to be conducted.2 In its response to the Report earlier this year, the Australian Government did not consider it necessary to authorise a formal department review of loot boxes at a Federal level.3 This has left the future of loot box regulation in Australia in a state of uncertainty.

WHAT IS A LOOT BOX? The term loot box does not have a settled meaning. In fact, some academics have argued that “the term ‘loot box’ and the phenomena it covers are not sufficiently precise for academic use.”4 In the Report, the concept of “microtransactions” was preferred over the term loot boxes. Micro-transactions were defined as “any model that provides a consumer with the option of making small purchases within a game or other application.”5 Irrespective of terminology, certain elements underpin a loot box or a microtransaction. A player is required to advance

18 THE BULLETIN February 2020

something of value in the context of the game, such as game points earned through gameplay, or something of real-world value, such as money. Once this valuable thing is advanced, the game will generate randomly the chance to win (or earn) a virtual item for the player (a reward). Hence, a loot box is inherently a transaction, as the player expends something of value in exchange for the opportunity to receive something that may be of value.

The virtual items found in loot boxes vary from game to game, however, they consist generally of items which can be used to enhance a player’s game play or cosmetic items, being items which do not affect game play but which affect the aesthetics or appearance of certain elements in the game. These cosmetic items are sometimes called “skins”. In some games, skins may be bought and sold on platforms hosted by third parties.

ARE LOOT BOXES GAMBLING? Under Australian Federal law, an activity may fall within the scope of gambling if it involves each of the following three elements: 1. Consideration – A person must provide something of real-world value to enter the activity; and 2. Prize – The player has the opportunity to win a prize of tangible value (i.e. money or money’s worth); and 3. Chance – The outcome of the activity involves an element of luck or “chance”.6 When a player uses real-world money to purchase, or to acquire an opportunity to purchase, a virtual item in a loot box, the player has provided something of value.

If the virtual item can be exchanged for money or money’s worth, that virtual item may be considered a prize. As the virtual

items in the context of a loot box are randomly generated by the software of a game, it may be said that the randomness is akin to the notion of chance or luck.

Therefore, an argument exists that these forms of loot boxes amount to gambling.

Gambling regulators in certain overseas jurisdictions have applied their existing laws to the concept of loot boxes and have arrived at the conclusion that certain loot boxes constitute gambling, as each jurisdiction has a different legal definition of gambling. In 2017, New Zealand’s Department of Internal Affairs stated that loot boxes did not meet the legal definition of gambling.7 The French Gambling Authority, Autorité de régulation des jeux en ligne, took a similar approach to loot boxes.8 In 2018, regulators in Belgium,9 Denmark10 and the Netherlands11 determined that loot boxes involving the payment of real-world money satisfy the elements of gambling under their respective laws and, as such, are subject to the various prohibitions on gambling set out in those laws. More recently, a UK House of Commons committee recommended that the UK Government should regulate loot boxes that can be purchased with real-world money under the Gambling Act 2005 (UK).12

AUSTRALIA AND THE LOOT BOX INQUIRY Loot boxes have also been considered by the Australian Government and state and territory governments. Most notably, in 2013, former South Australian Senator Nick Xenophon introduced a Bill into the Australian Senate which sought to bring activities within games involving both the purchase of virtual items with realworld money and “gambling” with virtual items within the scope of the definition

GAMING

of a “gambling service” under Australian Federal law.13 However, the Bill was not passed by the Australian Senate.

In 2018, the Senate Environment and Communications References Committee (the Senate Committee) conducted the Loot Box Inquiry. The Senate Committee was tasked with determining the extent, if any, to which loot boxes may be harmful, with particular reference to whether the purchase of chance-based items, combined with the ability to monetise these items on third-party platforms, constitutes a form of gambling.14 In particular, the Senate Committee considered whether loot boxes satisfied the legal and psychological definitions of gambling.15 Given the diversity of game features which may be considered loot boxes, the Senate Committee noted the difficulty of making definitive statements regarding loot boxes.16 However, the Senate Committee did recognise a broad consensus that, where real-world money is exchanged (that is, when loot boxes are purchased, where virtual items are bought and sold, or where both occur), those loot boxes most closely meet the definitions of gambling (both regulatory and psychological).17 Players may be exposed to risks in this context, including the risk that loot boxes may cause gambling-related harm. The Committee noted the vulnerability of certain groups to these risks, including children and people with mental health issues.18 In the Report, the Senate Committee recommended that the Australian Government undertake a comprehensive review of loot boxes in video games, which would have required consideration of whether specific regulation is appropriate for loot boxes.19 In March 2019, the Australian Government

released its response to the Report. The Government decided not to follow the recommendation. The Government cited the lack of research into gambling-related harms as a result of loot boxes as its reason for refraining from undertaking a comprehensive review, and stated “that developing an evidence-based regulatory approach to mitigate against any harms is challenging until further research is complete”.20

THE CURRENT REGULATORY FRAMEWORK At present, there is no specific regulatory framework in Australia targeted at loot boxes. Video games, or “computer games”, are subject to the National Classification Scheme, which is administered under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and a co-operative agreement between the Commonwealth, state and territory governments. However, the National Classification Scheme is focussed only on gambling and not on game features such as loot boxes.21 In the absence of a targeted regulatory framework, the Senate Committee considered several potential regulatory options, including the imposition of a MA15+ or R18+ rating for computer games containing loot boxes, a mandatory descriptor on all video games containing loot boxes, self-imposed and/or parental controls on interactions with loot boxes, compulsory disclosure of odds associated with loot boxes and an outright prohibition on loot boxes.22 However, the Senate Committee did not recommend adopting any of these options based on current evidence.

The Australian Consumer Law (ACL)23 may be a potential avenue for the regulation of certain aspects of loot boxes.

For example, it is possible that certain loot boxes could be misleading or deceptive to a consumer, particularly loot boxes which do not disclose the likelihood (or chance) of winning specific kinds of rewards.

Hence, if the ACL (as an existing law) were utilised to regulate these loot boxes, it may remove the need for implementing a targeted regulatory framework.

THE FUTURE In the absence of formal regulation of loot boxes, certain industry participants have removed or altered the loot boxes they offer, and will continue to do so.24 These approaches indicate a move towards “self-regulation”.

Self-regulation is not new to the video game industry. For example, following recommendations from the Japanese authorities as to which types of loot boxes should be banned, the Japanese mobile gaming industry engaged in self-regulation.

The Japanese model has achieved a degree of success without the imposition of formal constraints on loot boxes.25 Following the Australian Government’s response to the Report, it is unlikely to take any further action with respect to the regulation of loot boxes in the near future. This means that, for the moment, self-regulation is the default position in Australia.

However, both the emerging body of research on loot boxes and developments overseas may cause the Australian Government to reconsider its stance in the not too distant future; it would surprise no one if the Australian Government dipped its toe back into the murky waters of the regulation of loot boxes in the years to come.

Note: The authors are members of the Addisons Gambling Law team. B February 2020 THE BULLETIN

19

GAMING

Endnotes 1 For more on the concept of loot boxes, see Brendan Scott, ‘Loot Boxes drawing regulatory attention’ (November 2018) Internet Law Bulletin 124, 124; Sally Gainsbury, ‘Gaming-Gambling Convergence: Research, Regulation, and Reactions’ (2019) Gaming Law Review 23(2) 80; Edwin Hong, ‘Loot Boxes: Gambling for the Next Generation’ (2019) Western State Law Review 46(1) 61.

2 Environment and Communications References Committee, Parliament of Australia, Gaming micro-transactions for chance based items (Report, November 2018) (‘Loot Box Inquiry report’) 73.

3 Parliament of Australia, Government Response to the Gaming micro-transactions for chance based items inquiry (Government response, March 2019) (‘Government Response’).

4 RKL Nielsen and P Grabarczyk, ‘Are Loot Boxes Gambling?’ (2019) 4(3) Transactions of the Digital Games Research Association 171, 172.

5 Loot Box Inquiry report (n 1) 2.

6 Interactive Gambling Act 2001 (Cth) s 4 (definition of ‘Gambling Service’) (‘IGA’).

7 See, eg, Katherine Cross, ‘New Zealand says lootboxes ‘do not meet the legal definition for gambling’, Gamasutra (News report, 11 December 2017) <https://www.gamasutra. com/view/news/311463/New_Zealand_says_ lootboxes_do_not_meet_the_legal_definition_

for_gambling.php>.

8 See generally Stefanie Fogel, ‘French Regulator Criticizes Loot Boxes but Says They’re Not Gambling’, Variety (News report, 5 July 2018) < https://variety.com/2018/gaming/news/franceloot-boxes-1202865706/>.

9 See generally Newsbeat, ‘Gaming loot boxes: What happened when Belgium banned them?’

BBC News (News report, 12 September 2019) < https://www.bbc.com/news/ newsbeat-49674333>.

10 Danish Gambling Authority, Statement about loot boxes / loot crates (Statement, November 2017) <https://www.spillemyndigheden.dk/en/news/ statement-about-loot-boxes-loot-crates>.

11 Netherlands Gambling Authority, Press Release loot boxes (Press Release, April 2018) <https:// kansspelautoriteit.nl/english/loot-boxes/>.

12 The Digital, Culture, Media and Sport Committee, Immersive and Addictive Technologies report (Report, 12 September 2019).

13 Interactive Gambling Amendment (Virtual Credits) Bill 2013.

14 Loot Box Inquiry report (n 1) 1.

15 Ibid Chs 2-3.

16 Loot Box Inquiry report 71-2.

17 Loot Box Inquiry report (n 1) 72.

18 Ibid.

19 Ibid 73.

20 Government Response (n 3).

21 Marissa Dickins and Anna Thomas, Is it gambling or a game? Simulated gambling games: Their use and regulation (AGRC Discussion Paper, April 2016) 13.

22 Loot Box Inquiry report (n 1) 53-68.

23 Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’’).

24 See generally Connor Cable, ‘Rocket League is Removing Loot Boxes Later This Year’, 25YearsLater (Webpage, August 2019) <https://25yearslatersite.com/2019/08/19/ rocket-league-is-removing-loot-boxes-laterthis-year/>; Austin Goslin, ‘PUBG is finally ditching random locked loot boxes’, Polygon (Webpage, 19 November 2019) https://www. polygon.com/2019/11/19/20972315/. pubgpaid-loot-box-system-patch>; Kyle Orland, ‘So long, supply drops: Call of Duty gets rid of randomized loot boxes’, ArsTechnica (Webpage, 18 October 2019) <https://arstechnica.com/ gaming/2019/10/so-long-supply-drops-call-ofduty-gets-rid-of-randomized-loot-boxes/>.

25 Brendan Sinclair, ‘Who is responsible for loot boxes? Voices from around the industry share their thoughts on what’s at stake and who should be doing what’, gamesindustry.biz (Webpage, 16 May 2019) <https://www.gamesindustry.biz/ articles/2019-05-16-who-is-responsible-for-lootboxes>.

APPOINTMENTS

Three District Court judges & judicial registrar appointed Fuller, Michael Burnett QC and Ian Joana Press SC have recently been appointed to the District Court Bench following the retirement of District Court Judges his Honour Paul Rice, his Honour Jack Costello, and his Honour Sydney Tilmouth.

Judge Fuller and Judge Burnett are also designated as judges of the Environment, Resources and Development Court and the Licensing Court.

Judge Fuller, who commenced her role on 10 December 2019, is experienced in criminal matters, traffic law, family law and animal welfare law. She has also served in the RAAF Specialist Reserve for 20 years and in March 2019 was appointed by the Chief of the Defence Force as a Judge Advocate/Defence Force Magistrate.

Judge Fuller was admitted to practice in 1994, joined the independent bar in 1997 and since then has been practising within Bar Chambers. She is also a former Chair of the Law Society’s Animal Law Committee.

Judge Burnett commenced his role on 3 February. His 35-plus years in the law have included specialist practice in civil and commercial litigation. Prior to joining the independent bar in 2004, Mr Burnett QC was Counsel and Director of Enforcement for the Australian Securities and Investment Commission in New South Wales and Queensland.

He worked as a solicitor in various private firms both in Adelaide and Sydney and until moving to the bench was practising at Bar Chambers.

Judge Joana Fuller

Judge Michael Burnett QC Judge Ian Press SC

Judge Press, and experienced prosecutor, commenced his role on 20 January.

While at the the Office of the Director of Public Prosecutions, Judge Press served as a Managing Prosecutor, a Deputy Director, and most recently as Chief Counsel for Appeals.

Prior to that he worked in the Legal Services Commission’s criminal practice, War Crimes Unit, and as a Duty Solicitor.”

The Law Society thanks Judge Paul Rice, Judge Jack Costello and Judge Sydney Tilmouth for their outstanding contribution to the justice system.

INAUGURAL JUDICIAL REGISTRAR APPOINTED Melanie Burton has been appointed South Australia’s first Magistrates Court Judicial Registrar.

Ms Burton is a senior civil litigator

Melanie Burton

with over 20 years’ experience in all areas of civil law and procedure in all South Australian civil jurisdictions, including the oversight of long, complex litigation.

Attorney General Vicki Chapman said the appointment of a Judicial Registrar to the Magistrates Court would help sitting magistrates devote their time to more complex matters.

“By appointing experienced legal practitioners as Judicial Registrars, we’re giving the courts an alternative way of dealing with simple or high-volume matters,” Ms Chapman said.

“Allowing a Judicial Registrar to handle these matters will enable Magistrates to focus on the more complex or significant matters and will aid in the overall efficiency of the Court.”

Ms Burton began her seven-year appointment in January. B

Jason Karas commences as LSC Chairman Karas has commenced his role Jason as Chairperson of the Legal Services Commission, replacing Michael Abbott AO QC whose term ended in January.

Mr Karas was principal and co-founder of Lipman Karas firm. He is a graduate of the University of Adelaide and has practised law in SA since the early 1990s.

The Commission’s Director, Gabrielle Canny, welcomed the appointment of Mr

Karas and also acknowledged Mr Abbott’s outstanding contribution.

“Michael’s energy, expertise, leadership and dedication have greatly assisted the Commission’s development since he joined its Board in late 2013,” Ms Canny said.

“Michael has helped to build and refine our operations and the services we provide to the community.

“Jason’s diverse skills will help the

Commission build on its strong track record and meet the challenges of providing legal help in the next decade.”

Mr Karas said :“The Commission’s legal assistance ensures South Australians, particularly the most disadvantaged members of our community, have access to justice.”

“This is essential work and I look forward to supporting the Commission’s delivery of those services.” B February 2020 THE BULLETIN

21

ONLINE ACCESSIBILITY

I can’t read you! The importance of website accessibility for legal services NATALIE WADE, PRINCIPAL LAWYER, EQUALITY LAWYERS

I

t is well accepted that disability access and inclusion from a business perspective involves ramps, elevators and wider doorways. When designing our office spaces and thinking about how to deliver legal services to the community, we are aware that these features need to be embedded into practice. In 1992, the Disability Discrimination Act 1992 (Cth) cemented the legal obligation to have these practices and over the last 26 years, buildings and infrastructure have undoubtedly become more accessible.

However, when designing those core features of a legal service or law firm we can often forget the website. Websites are one of the most common ways in which people connect with businesses. When facing a legal issue, people will “google it” or if they see an advertisement for a law firm, may search for the website before picking up the phone. If you are a person with a disability who is looking for a lawyer, clicking on an inaccessible website is no different to arriving at an office in a wheelchair to find that the front door is accessed by a flight of steps. An inaccessible website could mean losing clients and those clients losing access to legal services. Neither is a good outcome.

Technically, website accessibility means “websites, tools and technologies are designed and developed so that people with disabilities can use them”.1 The Web Content Accessibility Guidelines (WCAG) apply to information in a webpage such as text, images and sounds but also the structure and presentation of a page.2 The WCAG should be applied in the development or revision of all websites for legal services and law firms. Practical examples of website accessibility include being able to use software to convert text

22 THE BULLETIN February 2020

into speech or using a keyboard to move through content rather than the mouse.

Intuitively, law firms may realise that a WCAG-compliant website would provide access to people with vision impairment.

But website accessibility is much broader than that. It can assist people with other disabilities including auditory, cognitive, neurological, physical and speech.3 People with disabilities make up 20% of the Australian population,4 which makes for a significant group of people who may be denied access to legal services because websites make it impossible to know what is on offer and who to contact. That presents a serious access to justice issue which all law firms must take responsibility for. It is critical to the success and integrity of our profession to ensure that services are accessible and inclusive for all.

While website accessibility is fundamental to access and inclusion for people with disabilities, it is worth noting that accessible websites present other benefits. An accessible website will be easier to navigate for people using mobile phones, smart watches and TVs, those who are trying to view the screen in bright sunlight or with a slow internet connection.5 Like the iconic ramp to a building, website accessibility makes it that little bit easier for everyone. Behind the scenes of the website, those which are accessible are also easier for search engines to read so those Search Engine Optimisation (SEO) results which bring people to a website when they are looking for a particular service (for example, searching “family lawyer, Adelaide”) will be better for accessible websites.

In October, 2019, the Royal Commission into the Violence, Abuse, Neglect and Exploitation of people

with disabilities (“Disability Royal Commission”) was criticised by disability advocates as not having an accessible website.6 The advocates pointed out that the language, legibility and appropriateness of content was not appropriate for use by most people with disabilities. Vision Australia provided a public statement confirming that while they had been consulted on the accessibility of a draft version of the Disability Royal Commission website, they had not been asked to conduct a final audit to confirm it meets the WCAG.7 The Disability Royal Commission have since provided specific information on the accessibility of their website.8 It goes without saying that inaccessible features on the Disability Royal Commission website are especially disappointing given the work they do, but it does highlight the importance of why all services, public or private, need to ensure their websites are accessible.

Recognising the need for website accessibility is one matter, but it is entirely another to know how to get it into practice. There are several ways to get your website compliant and accessible.

The obvious and easiest way is to engage a graphic design company that works to the WCAG to make it happen for you. If that is not appealing or practical, the South Australian Government has launched an Online Accessibility Toolkit (www. accessibility.sa.gov.au) which provides a host of guides, policies and support for making your website compliant.

The Toolkit is a good place to start to learn more about what is involved in an accessible website and what it looks like.

The WVAG are also available online (www. w3.org) which provide the technical detail required for a complaint website.

ONLINE ACCESSIBILITY

In acknowledging the importance of websites to all law firms and legal services, the accessible website is 2020’s version of “the humble ramp”! B

3 4

Endnotes 1 Web Accessibility Initiative, Introduction to Web Accessibility (5 June 2019) <https://www.w3.org/ WAI/fundamentals/accessibility-intro/#what> 2 Ibid.

6

5

Ibid.

Australian Network on Disability, Disability Statistics (2019) <https://www.and.org.au/pages/ disability-statistics.html> Web Accessibility Initiative, Introduction to Web Accessibility (5 June 2019) <https://www.w3.org/ WAI/fundamentals/accessibility-intro/#what> Sam Langford, The Advocate Redesigned the Disability Royal Commission website so people with a disability can actually use it (1 November 2019) SBS The Feed <https://www.sbs.com.au/news/ the-feed/this-advocate-redesigned-the-disability-

7

8

royal-commission-website-so-people-with-adisability-can-actually-use-it> Vision Australia, Statement from Vision Australia on Disability Royal Commission website accessibility (31 October 2019) <https://www.visionaustralia. org/community/news/2019-10-31/statementvision-australia-disability-royal-commissionwebsite> Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Accessibility <https://disability.royalcommission. gov.au/Pages/Accessibility.aspx>

RENTAL ACCOMMODATION

NO LONGER UNREGULATED, BUT STILL CONTROVERSIAL: THE LAWS AROUND HOME SHARING IN AUSTRALIA CALLUM RITCHIE, SOLICITOR, WALLMANS LAWYERS AND BRENDAN GRIGG, SENIOR LECTURER IN THE COLLEGE OF BUSINESS, GOVERNMENT AND LAW, FLINDERS UNIVERSITY

I

n her decision in Swan v Uecker1(Swan), Member Campana of the Victorian Civil and Administrative Tribunal (VCAT) described Airbnb’s effect on the residential tenancy market as ‘unregulated and controversial’.2 Three years on from Swan, and the appeal to the Victorian Supreme Court,3 Australian Governments have now taken, or are in the process of taking, steps to regulate the short-term rental accommodation phenomenon. This article presents a snapshot of the status of that regulation in each Australian jurisdiction.

HOME SHARING AND THE ‘SHARING-FORPROFIT’ ECONOMY In the sharing economy, ownership of assets is not transferred; people, instead, create income from ‘sharing’ their excess or under-utilised assets.4 Home sharing platforms enable homeowners or tenants to obtain income from their extra space, by making it easy for people to book short-term accommodation.5 Through Airbnb, for example, a ‘host’ lists an empty property (or room) online, and then a ‘guest’ books a ‘stay’.6 Airbnb provides the platform which connects the parties and facilitates payment of the fees,7 of which Airbnb takes a percentage.8 Other platforms like Couchsurfing9 and Stayz10 play a role, however, Airbnb is the most prominent home sharing platform: in 2015–16, over 800,000 Airbnb stays were booked for 2.1 million guests in Australia.11 Airbnb ‘stays’ vary in form depending on whether the host is ‘present,’ ‘temporarily’ or ‘permanently’ absent.12 The first is where the guest occupies a spare room and uses shared facilities in a house.13 The second involves the host temporarily making the entire property available to a guest, 14 whereas a permanently absent host does not reside at the property at all, and

24 THE BULLETIN February 2020

the entire property is available for shortterm rental on an ongoing basis.15 Some participants in the ‘sharing economy’ may aspire to a more sustainable use of resources through collaborative consumption,16 but others view the short-term rental phenomenon as simply commercial short-term letting operations conducted via an app.17 Indeed, in 2016, approximately 25% of Sydney’s Airbnb listings were for properties permanently offered for short-term rental and consequently unavailable for longterm housing.18

COMMERCIAL HOME SHARING AND INTENSIFICATION OF USE The responses across Australian jurisdictions, identified below, reflect an intention to regulate commercial activities, where a host is absent, rather than non-commercial activities. Traditional participants in the accommodation industry (like hotels), have long been the subject of regulation, and have argued that platforms like Airbnb are unfairly advantaged if they are free from such regulation, despite effectively being a commercial operation.19 Similarly, the short-term rental phenomenon allows people to use their home or apartment in a manner and to an extent that has not previously been possible. This intensification of residential use is challenging, because as it takes on more of a commercial quality, it conflicts with traditional residential land uses.

Planning laws traditionally seek to separate conflicting land uses.20 This conflict lies at the heart of many resident complaints about impacts to their amenity from neighbours using properties as short-term rentals.21 Responding to intensification of use is another key driver of the legislative responses to the short-term rental phenomenon.

LEGISLATIVE RESPONSES New South Wales In 2018, the NSW Government announced a framework for implementation in 2019 involving a combination of measures.

Firstly, it contemplates clarifying the place of short-term rentals in the NSW planning system, by defining the concept and setting out where approval is required.

‘Short-term rental accommodation’ will be defined as ‘the commercial use of an existing dwelling, either wholly or partially for the purposes of short-term accommodation, but does not include tourist and visitor accommodation’.22 It will be an acceptable land use where: the use of a dwelling is permissible for the zone; the dwelling already has the requisite planning approval; and no physical alterations are made to accommodate the use.23 The NSW framework envisages amending the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) to provide for exempt/complying development status and associated approval pathways depending on the property’s location and whether the owner is present. If the host is present overnight, the short-term rental accommodation will be exempt development.24 The host’s presence will mean they can manage impacts on neighbours.25 Where the host is absent, and the property is not on bushfire prone land, exempt development status will only apply if the property is used for short-term accommodation less than 180 days per year and is within the Greater Sydney area.26 Outside that area, the use is unlimited on land not defined as bushfire prone, though local councils will be empowered to restrict it to 180 days per year.27 Where a host is

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not present on-site in a bushfire prone area, the use will require complying development approval, in recognition of the increased safety requirements.28 The Fair Trading Amendment (Short-term Rental Accommodation) Act 2018 (NSW) (‘FT Amendment’) inserts Division 4A in Part 4 of the Fair Trading Act 1987 (NSW) and establishes a Code of Conduct (‘Code’) to apply to all ‘participants’29 in the shortterm accommodation industry from 2019.30 This includes providers of online booking services; agents who facilitate the agreements; those who provide or are given a right to occupy premises; and any other person prescribed by the regulations who facilitates short-term rental accommodation arrangements.31 The legislation also prescribes a list of matters that the Code may deal with, including setting out rights and obligations of the participants;32 establishing a registration system for premises used as short-term accommodation and when they are so used;33 setting up a complaints resolution mechanism;34 and the ability to keep a register of participants who fail to comply with the Code.35 The scheme also enables the creation of criminal offences and civil penalties for certain breaches.36 Amenity impacts from the intensification of use caused by home sharing are felt acutely in multistorey apartments, where disputes have arisen between resident owners who complain about amenity impacts and over use of common property areas37 and investor owners who seek to maximise return from their investment.38 The FTA Amendment also amends the Strata Schemes Management Act 2015 (NSW) by inserting section 137A, which ensures that an owners corporation may, via a special resolution, prohibit a lot from being used for short-term rental accommodation if the lot is not the

principal residence of the person offering the accommodation.39 The amendment also invalidates any existing by-law that prohibits short-term rental accommodation if the lot is the principal residence of the person offering the ‘short-term rental arrangement’.40 ‘Short-term rental accommodation arrangement’ is defined as ‘a commercial arrangement giving a person the right to occupy residential premises for a period of not more than three months at any one time’.41 Accordingly, the definition will only capture commercial arrangements and exempts any non-commercial, personal arrangement.

Victoria Victoria’s approach does not utilise planning laws, rather, it enables the private enforcement of rules by owners’ corporations.42 It does not expressly apply only to commercial arrangements, but in practice such arrangements are more likely to be caught by the scheme. The Owners Corporations Amendment (Short-stay Accommodation) Act 2018 (Vic) commenced operation on 1 February, 201943 and introduced a new scheme into the Owners Corporations Act 2006 (Vic),44 to regulate short-stay accommodation arrangements within an owners corporation.45 A ‘shortstay accommodation arrangement’ is ‘a lease or licence for a maximum period of 7 days and 6 nights to occupy a lot or part of a lot affected by an owners corporation’.46 The scheme establishes conduct standards expected of short-stay occupants and provides for a complaints mechanism where those standards are breached,47 including by: • Unreasonably creating noise likely to substantially interfere with the peaceful enjoyment of other lots, other than where permission has been given;48 • Behaving in a way that is likely to

unreasonably and substantially interfere with the peaceful enjoyment of another lot;49 • Using or allowing a lot or common property to be used so as to cause a substantial hazard to the health, safety and security of any person;50 • Unreasonably and substantially obstructing the lawful use and enjoyment by an occupier or their guest of the common property;51 or • Substantially damaging or altering, intentionally or negligently, a lot or the common property.52 Where a short-stay occupant has breached a standard, a lot owner, occupier or a manager may make a complaint to the owners corporation.53 The owners corporation is empowered to require rectification of any breach,54 or to apply to VCAT to resolve the dispute.55 VCAT has the power to order that a person be prohibited from using the lot for shortstay accommodation where there have been at least three complaints within 24 months;56 to award compensation for loss of amenity57 (capped at $2,000 for each affected occupier);58 and to award a civil penalty against a short-stay occupant.59 Any such order can only be imposed by VCAT, and cannot be enforced by the owners corporation in its by-laws, as contemplated by the NSW scheme.

Queensland Queensland’s approach has been limited to using planning laws to regulate the impacts to neighbours arising from commercial short-term rentals that are used as ‘party houses’. ‘Party house’ is defined as ‘premises containing a dwelling that is used to provide, for a fee, accommodation or facilities for guests’ where: a. guests regularly use all or part of the premises for parties (bucks parties, February 2020 THE BULLETIN

25

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hens parties, raves, or wedding receptions, for example); and b. the accommodation or facilities are provided for a period of less than 10 days; and c. the owner of the premises does not occupy the premises during that period.60 The Planning Act 2016 (Qld) provides that a planning scheme may stipulate that a material change of use for a party house is development that requires assessment;61 specify assessment benchmarks;62 and establish a ‘party house restriction area’ for any part of the local government area.63 Section 276(2) of the Planning Act 2016 (Qld) provides that where a local government authority establishes a party house restriction area, any approval for use as a residence does not include use as a party house. The requirement that guests ‘regularly’ use the premises for parties likely limits the scheme’s application to commercial home sharing. The City of the Gold Coast established a party house restriction area in 2017.64 Western Australia The Western Australian Legislative Assembly Economics and Industry Standing Committee released its report into the short-term rental accommodation market in September 2019.65 The Committee’s recommendations include: creating a new land use definition in the state planning scheme that distinguishes between ‘hosted’ and ‘unhosted’ short term rentals, 66 developing model by-laws for strata corporations that would clarify the corporation’s powers to prohibit or permit short-term rental accommodation, 67 and, the establishment of a state-wide registration scheme. 68 South Australia, Northern Territory and Australian Capital Territory Despite the views of some local councils that would like some form of regulation,69 the South Australian Government has not taken any steps to regulate short-term rentals other than to state its position in an Advisory Notice,70 a non-binding interpretive aid to the

26 THE BULLETIN February 2020

Development Act 1993 (SA).71 It points to the silence in the South Australian planning scheme about the duration or frequency with which a dwelling72 is occupied, the type of occupation, and the mechanism which facilitates the occupancy.73 It concludes that: a dwelling will remain a dwelling if it is occupied sporadically; let out during holiday periods to short-term occupants; let for shortterm use; or if the owner lives overseas or interstate and uses it occasionally and then for relatively short periods. Unless development is undertaken to physically alter the dwelling such that it is no longer a dwelling, it remains a dwelling.74 Whether the use of a dwelling for short-term rentals might otherwise constitute ‘development’75 under the Development Act 1993 (SA) and require approval76 is determined on a case-bycase basis. It appears that the equivalent position applies in the Northern Territory and the Australian Capital Territory.

Tasmania At the time of writing, a Tasmanian parliamentary committee77 is undertaking an inquiry into the short-stay industry.

The terms of reference place emphasis on exploring regulatory options, including those involving planning powers.

CONCLUSION The online platforms that underpin the short-term rental accommodation phenomenon allow those with access to property to utilise it to an extent that has not traditionally been possible. This intensification of use has led to legislative responses as some states have recognised a need for greater regulation of commercial home sharing.

These regulatory responses focus on land use planning laws and laws that enable owners’ corporations to enforce conduct standards. The primary focus in NSW and Victoria, the two jurisdictions that have taken the most significant steps to regulate short-term rentals, has been on home sharing which is undertaken on a

commercial scale. We are yet to see whether the other Australian jurisdictions, including South Australia, will follow their lead as the intensification of use associated with the practice of home sharing continues. B

Endnotes 1 [2016] VCAT 483.

2 Swan v Uecker [2016] VCAT 483, [1].

3 Swan v Uecker (2016) 50 VR 74 4 Iis P Tussyadiah and Juho Pesonen, ‘Drivers and Barriers of Peer-to-Peer Accommodation Stay: An Exploratory Study with American and Finnish Travellers’ (2018) 21(6) Current Issues in Tourism 703, 703.

5 Jim Minifie, ‘Peer-to-Peer Pressure: Policy for the Sharing Economy’ (Report No 2016–17, Grattan Institute, April 2016) 1 <https://grattan.edu.au/ wp-content/uploads/2016/04/871-Peer-to-peerpressure.pdf>.

6 Daniel Guttentag, ‘Airbnb: Disruptive Innovation and the Rise of an Informal Tourism Accommodation Sector’ (2015) 18(12) Current Issues in Tourism 1192, 1192.

7 Deloitte Access Economics, Economic Effects of Airbnb in Australia: Airbnb Australia (2017) 11.

8 Ibid.

9 ‘About Us’, Couchsurfing (Web Page) <https:// www.couchsurfing.com/about/about-us/>.

10 ‘About HomeAway’, HomeAway Stayz (Web Page) <https://www.stayz.com.au/about-us>.

11 Deloitte Access Economics, Economic Effects of Airbnb in Australia: Airbnb Australia (2017) 5.

12 Alex Lazar ‘Home-Sharing in South Australia: Protecting the Rights of Hosts, Guests and Neighbours’ (2018) 3 UniSA Student Law Review 49, 52–3; David Parker, ‘Home-Sharing, Airbnb and the Role of the Law in a New Market Paradigm’ (2018) 3 UniSA Student Law Review 72, 73.

13 Alex Lazar ‘Home-Sharing in South Australia: Protecting the Rights of Hosts, Guests and Neighbours’ (2018) 3 UniSA Student Law Review 49, 52–3.

14 David Parker, ‘Home-Sharing, Airbnb and the Role of the Law in a New Market Paradigm’ (2018) 3 UniSA Student Law Review 72, 73.

15 Ibid.

16 Laura Schatz and Rebecca Leshinsky, ‘Up in the Air(bnb): Can Short-term Rentals Be Tamed?’

(2018) 7(2) Property Law Review 105, 108.

17 Laura Crommelin, Chris Martin and Laurence Troy, ‘Airbnb Regulation Needs to Distinguish between Sharing and Plain Old Commercial Letting’, The Conversation (online, 5 June 2018) <https://theconversation.com/airbnb-regulationneeds-to-distinguish-between-sharing-and-plainold-commercial-letting-97613>; Laura Crommelin, Laurence Troy, Chris Martin and Chris Pettit, ‘Is Airbnb a Sharing Economy Superstar? Evidence from Five Global Cities’ (2018) 36(4) Urban Policy

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and Research 429. For other research results in relation to Sydney, see also Nicole Gurran and Peter Phibbs, ‘When Tourists Move In: How Should Urban Planners Respond to Airbnb?’

(2017) 83(1) Journal of the American Planning Association 80.

18 Laura Crommelin, Chris Martin and Laurence Troy, ‘Airbnb Regulation Needs to Distinguish between Sharing and Plain Old Commercial Letting’, The Conversation (online, 5 June 2018) <https://theconversation.com/airbnb-regulationneeds-to-distinguish-between-sharing-and-plainold-commercial-letting-97613>.

19 Jacob Kagi, ‘Call for Airbnb Crackdown to Target Investors, Holiday Homes in Western Australia’, ABC (online, 13 February 2019) <https://www. abc.net.au/news/2019-02-13/call-for-airbnbcrackdown-to-target-wa-investors-holidayhomes/10807774> 20 Brian J Preston, ‘The Australian Experience on Environmental Law’ (2018) 35(6) Environmental and Planning Law Journal 637, 639; Laura Schatz and Rebecca Leshinsky, ‘Up in the Air(bnb): Can Short-term Rentals Be Tamed?’ (2018) 7(2) Property Law Review 105, 107.

21 See generally ‘Uncensored Airbnb Stories & Reasons Not to Use Airbnb’, Airbnb Hell (Web Page) <https://www.airbnbhell.com/>.

22 Department of Planning and Environment (NSW), ‘Explanation of Intended Effect: Short-Term Rental Accommodation Planning Framework’ (October/November 2018) 5 <https://www.planning.nsw.gov.au/~/ media/Files/DPE/Other/Short-term-RentalAccommodation-EIE.ashx>, 9.

23 Ibid.

24 Ibid at 11.

25 Department of Planning and Environment (NSW), ‘Explanation of Intended Effect: Short-Term Rental Accommodation Planning Framework’ (October/November 2018) 5 <https://www.planning.nsw.gov.au/~/ media/Files/DPE/Other/Short-term-RentalAccommodation-EIE.ashx>, 11.

26 Department of Planning and Environment (NSW), ‘Explanation of Intended Effect: Short-Term Rental Accommodation Planning Framework’ (October/November 2018) 5 <https://www.planning.nsw.gov.au/~/ media/Files/DPE/Other/Short-term-RentalAccommodation-EIE.ashx>, 11.

27 Department of Planning and Environment (NSW), ‘Explanation of Intended Effect: Short-Term Rental Accommodation Planning Framework’ (October/November 2018) 5 <https://www.planning.nsw.gov.au/~/ media/Files/DPE/Other/Short-term-RentalAccommodation-EIE.ashx>, 11.

28 Department of Planning and Environment (NSW), ‘Explanation of Intended Effect: Short-Term Rental Accommodation Planning Framework’ (October/ November 2018) 5 <https://www.planning.nsw. gov.au/~/media/Files/DPE/Other/Short-termRental-Accommodation-EIE.ashx>, 11.

29 Fair Trading Amendment (Short-Term Rental Accommodation) Act 2018 (NSW) sch 1 s 54B(1) (‘Fair Trading Amendment Act’).

30 ‘New Rules for Short-Term Holiday Rentals’, NSW Government (Web Page, 15 August 2018) <https://www.nsw.gov.au/news-and-events/ news/new-rules-for-short-term-holiday-rentals/>.

31 Fair Trading Amendment Act sch 1 s 54A (definition of ‘short-term rental accommodation industry participant’).

32 Fair Trading Amendment Act sch 1 s 54B(2)(a).

33 Fair Trading Amendment Act sch 1 s 54B(2)(c).

34 Fair Trading Amendment Act sch 1 s 54B(2)(f).

35 Fair Trading Amendment Act sch 1 s 54B(2)(g), (i).

36 Fair Trading Amendment Act sch 1 s 54C. 37 Cathy Sherry, ‘Recent Developments in Strata Law: By-Law Making Power and Short-Term Letting’ (2016) 90(12) Australian Law Journal 853, 853.

38 Cathy Sherry, ‘Recent Developments in Strata Law: By-Law Making Power and Short-Term Letting’ (2016) 90(12) Australian Law Journal 853, 853.

39 Fair Trading Amendment Act sch 2.

40 Fair Trading Amendment Act sch 2.

41 Fair Trading Amendment Act sch 1.

42 Cathy Sherry, ‘Recent Developments in Strata Law: By-Law Making Power and Short-Term Letting’ (2016) 90(12) Australian Law Journal 853, 858.

43 Linda Dessau, ‘Acts of Parliament: Proclamation’ in Victoria, Victorian Government Gazette, No S 380, 14 August 2018. See also Jim Malo, ‘Victorian Airbnb Unit Owners Can Now Be Fined and Banned, Houses Unaffected’, Domain (online, 31 January 2019) <https://www.domain. com.au/news/victorian-airbnb-unit-owners-canbe-fined-and-banned-from-tomorrow-housesunaffected-797590/>; See generally Tim Graham and Leila Idris, ‘Legislative and Regulatory Updates: Owners Corporations Amendment (Short-stay Accommodation) Act 2018 and Mornington Peninsula Shire Council’s Short Stay Rental Accommodation Local Law 2018’ (2019) 34(4) Australian Property Law Bulletin 50.

44 Owners Corporations Act 2006 (Vic) pt 10 div 1A (‘Owners Corporations Act’).

45 Owners Corporations Amendment (Short-stay Accommodation) Act 2018 (Vic) s 1.

46 Owners Corporations Act s 3 (definition of ‘short-stay accommodation arrangement’).

47 Owners Corporations Act s 159A(1).

48 Owners Corporations Act s 159A(2)(a).

49 Owners Corporations Act s 159A(2)(b).

50 Owners Corporations Act s 159A(2)(c).

51 Owners Corporations Act s 159A(2)(d).

52 Owners Corporations Act s 159A(2)(e).

53 Owners Corporations Act s 159A(1).

54 Owners Corporations Act ss 159D(1), (2)(a).

55 Owners Corporations Act ss 159D(1), (2)(b), 159E(1).

56 Owners Corporations Act s 169D. 57 Owners Corporations Act s 169E(1).

58 Owners Corporations Act s 169E(3).

59 Owners Corporations Act s 169G. 60 Planning Act 2016 (Qld) ss 276(5)(a), (b) and (c).

61 Planning Act 2016 (Qld) s 276(1)(a).

62 Planning Act 2016 (Qld) s 276(1)(b).

63 Planning Act 2016 (Qld) s 276(1)(c).

64 ‘Planning Act 2016: Council of the City of Gold Coast Public Notice Repeal of Temporary Local Planning Instrument No 3 (Party Houses) 2017 for the City of Gold Coast Adoption Temporary Local Planning Instrument No 4 (Party Houses) 2018 for the City of Gold Coast’ in Queensland, Queensland Government Gazette, Vol 377, No 20, 2 February 2018, 82.

65 ‘Inquiry into Short-Stay Accommodation’, Parliament of Western Australia (Web Page) <http:// www.parliament.wa.gov.au/Parliament/commit. nsf/(EvidenceOnly)/5A2D93940DDF1 D254825833800277F1C?opendocument> 66 ‘Inquiry into Short-Stay Accommodation’, Parliament of Western Australia (Web Page) http:// www.parliament.wa.gov.au/Parliament/ commit.nsf/(EvidenceOnly)/5A2D93940D DF1D254825833800277F1C?opendocument, vi.

67 ‘Inquiry into Short-Stay Accommodation’, Parliament of Western Australia (Web Page) http:// www.parliament.wa.gov.au/Parliament/ commit.nsf/(EvidenceOnly)/5A2D93940D DF1D254825833800277F1C?opendocument, vii.

68 ‘Inquiry into Short-Stay Accommodation’, Parliament of Western Australia (Web Page) http:// www.parliament.wa.gov.au/Parliament/commit. nsf/(EvidenceOnly)/5A2D93940DDF1D 254825833800277F1C?opendocument viii-x.

69 Eugene Boisvert and Claire Campbell, ‘Adelaide Council Calls for Airbnb Accommodation to Be Regulated Like Hotels’, ABC (online, 13 June 2018) <https://www.abc.net.au/news/2018-06-13/ holdfast-bay-calls-for-airbnb-regulation/9864484>.

70 Advisory Notice: Building, Development Act 1993 (SA), No 04/16, March 2016 <https://www. saplanningportal.sa.gov.au/__data/assets/ pdf_file/0007/285352/Building-advisory-notice04-16-Administration-Application-of-the-changein-use-provisions-dwelling.pdf>.

71 Advisory Notice: Building, Development Act 1993 (SA), No 04/16, March 2016 <https://www. saplanningportal.sa.gov.au/__data/assets/ pdf_file/0007/285352/Building-advisory-notice04-16-Administration-Application-of-the-changein-use-provisions-dwelling.pdf>..

72 A ‘dwelling’ is defined as ‘a building or part of a building used as a self-contained residence’: Development Regulations 2008 (SA) sch 1 (definition of ‘dwelling’).

73 Development Regulations 2008 (SA) sch 2.

74 Advisory Notice: Building, Development Act 1993 (SA), No 04/16, March 2016 <https://www. saplanningportal.sa.gov.au/__data/assets/ pdf_file/0007/285352/Building-advisory-notice04-16-Administration-Application-of-the-changein-use-provisions-dwelling.pdf> 2.

75 Development Act 1993 (SA) s 4.

76 Development Act 1993 (SA) s 32.

77 ‘Legislative Council Select Committee ShortStay Accommodation in Tasmania’, Parliament of Tasmania (Web Page, 2010) <http://www. parliament.tas.gov.au/ctee/Council/LC%20 Select%20ShortStay.html>.

February 2020 THE BULLETIN

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RISK WATCH

Living online/working online: cybersecurity issues you must address GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

O

nline communication using mobile devices (phones/tablets/laptops) is so convenient and seductive it has become almost ubiquitous. Similarly, the use of email has become so common it is now almost certainly the most used mode of communication in the vast majority of businesses, including legal practices. The dangers of email and the use of mobile devices have been well documented both in these pages and in the general media in recent years. Fraudsters who target money transactions or data are clever and resourceful and will almost always be one or several steps ahead of those they are targeting.

The Society has recently sent out a survey to SA legal practices to ascertain the level of implementation of mitigation strategies to maintain good levels of cybersecurity. The results of this survey will assist the Society in planning relevant Risk Management education sessions and will be the subject of a further article in the coming months.

The survey questions were designed in conjunction with the PII Scheme’s underwriter and were based on the “Essential Eight” cybersecurity strategies published by the Commonwealth Government. Being able to answer “Yes” to these questions is an indicator of good cybersecurity, both from the point of view of minimising risk to your clients and your own practice. Even if you didn’t respond to the survey it is well worth a few minutes of your time reflecting on how your practice would answer the questions.

The survey questions were as follows: • Does your Practice require a password to access all computers and other devices (e.g. laptops, tables, phones etc.)?

• If yes, is there a policy in place requiring password complexity and periodic changing of passwords?

• Does your Practice require multifactor

28 THE BULLETIN February 2020

authentication for remote access to the Practice’s computer systems?

(Note: multifactor authentication means the requirement to provide two or more methods of verification to be granted access.)

• Does your Practice restrict administrative privileges and application usage based on user duties?

• If yes, does your Practice regularly review the need for those users with such privileges to retain those privileges?

• Do all your Practice’s computer systems have antivirus protection?

• Does your Practice conduct regular (minimum monthly) updates / patching of software systems – including any antivirus protection?

• Does your Practice conduct a daily backup and have recovery procedures for all clients’ and business data?

• If yes: Is the backup data stored:  Remotely and disconnected from the Practice’s computers?  For at least 3 months?

• Is the proper restoration of the Practice’s computer systems from the backup data tested annually?

• Does your Practice have a hardware firewall protecting your network?

• Does the Practice have Application Whitelisting implemented? (This is where only approved / trusted programs can run, and nonapproved applications (including malware) are automatically prevented from executing.)

• Do you have a secure method of sending and receiving confidential client documents electronically?

(Note: email is not a secure method.)

• Does your Practice encrypt all confidential and sensitive data?

• Is USB access disabled on all computers used in your Practice?

Judge Joana Fuller

•

Do you have a practice to verify client instructions as to monetary transactions?

• Does the Practice conduct penetration testing of the Practice’s computer systems?

• Does the Practice actively monitor network traffic to regularly identify and assess new threats?

Whilst there is no guarantee that your practice will always be safe—after all the hackers and fraudsters have compromised the computer systems of government agencies and multinational companies— getting your practice into a position where you can answer “Yes” to these questions will be of tremendous benefit because the bad guys will most likely move on to an easier target.

Another important point relating to cybersecurity and the use of mobile devices outside your office is that it has to be recognised that public/free Wi-Fi is not secure. For example, we understand that most airport Wi-Fi systems have been hacked or are easily hackable. Despite the convenience, it is not recommended that any confidential client-related matters be conducted using public/free Wi-Fi connections, such as that available in airports, coffee shops and the like—you never know who has hacked into the connection.

Living and working online comes with its own set of risks which should never be ignored.

OCHRE RIBBON WEEK

Ochre Ribbon Week raises awareness of shocking impacts of family violence CELIA MOODIE, SENIOR PROJECT & POLICY OFFICER, VICTIM SUPPORT SERVICE

O

chre Ribbon Week occurs each year between the 12th - 19th February.

The Ochre Ribbon Campaign raises awareness of the devastating impacts of family violence in Aboriginal and Torres Strait Islander communities and calls for action to end the violence against Aboriginal and Torres Strait Islander people – especially our women and children.

Research shows that Aboriginal and Torres Strait Islander women across Australia are 32 times more likely to be hospitalised for family violence, and 10 times more likely to die from a violent assault than other women in this country.

Worse still, 90% of family violence is not reported.

The effects of this victimisation flow on to Aboriginal and Torres Strait Islander children, with family violence the primary driver for the removal of those children from their families into out-ofhome care, contributing to the cycle of intergenerational trauma and victimisation.

Aboriginal and Torres Strait Islander children removed from their families and placed in out of home care are 16 times more likely to be in the youth justice system than those who are not.

Self-determination is key to change.

The Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar AO has recently completed the first stage of the Wiyi Yani U Thangani (Women’s Voices) Project.

Throughout 2018, the Commissioner led and completed a national consultation process with around 2,300 Aboriginal and Torres Strait Islander women and girls across 50 communities throughout Australia. The broad-ranging consultations explored their sense of identity, health and wellbeing, safety, economic and education participation, representation in leadership, and the way that women and girls connect to land and country.

While different issues were raised across locations, there were consistent calls for action around child removal, incarceration, housing, mental health, wellbeing and employment, all of which are often linked to family violence.

Services like ours eagerly await the Commissioner’s final report, due in March, 2020. This report is expected to provide guidance for all governments, non-government organisations and communities to better support Indigenous women and girls as agents of change. We

consider this will be an opportunity to lead us forward in supporting families and communities to address family violence, and this will provide us an opportunity to reflect on what our role can be in effective change. B

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IN HONOUR

Vale: Mark Griffin QC The following is an abridged version of the eulogy for Mark Griffin QC delivered by his brother, Paul Griffin.

M

ark Griffin attended school at St Ignatius College, Norwood and later Athelstone from 1966 to 1974.

He was a feisty kid with a shocking temper, something that he learnt to control as he grew older. He never got in any real trouble at school, it was more about being very strong willed and going into battle for the kids who may had been getting a hard time. His support of the underdog started early.

He was a good student who worked very hard and involved himself in everything at school from sport to debating and even theatre.

He was a natural leader. He captained numerous school football and cricket teams and was appointed School Captain in his final year in 1974.

He commenced at Adelaide University in 1975, was articled to John Goldberg in 1979 and graduated the same year along with his great friends John Connelly and Michael Doyle. He was admitted on December 17, 1979.

This was also the year he first became

unwell when what was initially thought to be a simple case of appendicitis turned out to be something far more serious. Mark was diagnosed with the very rare autoimmune condition that was to chart the course of his health for the rest of his life.

Fortunately his condition could be managed, and once he recovered he set about establishing his career as a lawyer.

He absolutely loved the law and by the early 1980s had married and with the support of Celine, M A Griffin & Co was established. The practice quickly grew and some years later he merged with Kym Elston and Brian Gilchrist.

In the early 1990s Mark moved to Boston and worked in the Public Defender’s Office which he loved, representing some of the most disadvantaged and troubled in the community.

In the three years Mark lived in Boston he made some wonderful friends, in particular Fr Frank Herrmann, a Jesuit Priest and Law Lecturer at Boston College Law School.

A LETTER TO DAD lectures; the stories you always repeated; your constructive criticism from the It is hard to put into words my love for sidelines of my footy matches – these you. moments we shared will be burnt into my You are my father - my idol - my best memory forever. friend - and my greatest support.

I would say goodbye, but I know you well Although our time together on this Earth enough now to know that you will never has come to an end, I have never felt truly leave me. luckier than I do now. To have grown into You are a part of me; I promise to carry a young man with you by my side; when you with me every day; and because of our time together could have been so much this, I do not fear what lies ahead. less; I am, and always will be grateful.

Until we see each other again – I will miss I know how much it meant to you that you you. saw the end of my schooling, and it was I love you with all my heart. your bravery that helped get me through such a difficult year.

Your son, Matthew All our conversations; the laughs; the To Dad,

30 THE BULLETIN February 2020

He returned to Adelaide in the mid 1990s. After a short period with the Director of Public Prosecutions he joined the Bar and has thrived on the challenges, demands and workload of life as a Barrister for the past 25 years.

Mark loved sport. The Old Ignatians’ Football and Cricket Clubs were a big part of his early life, in particular the Football Club. He was a Best and Fairest winner, A-Grade Captain, Coach, President and was a Life Member.

He was a talented sportsman blessed with skill, speed and courage as well as fair bit of aggression which could see him bowl a series of very quick short-pitched balls towards a loud-mouthed batsman or release a humiliating tirade released against an opposition hit-man. Once he lost it, he completely lost it.

He was the legal representative for the Port Adelaide Football Club which kept him quite busy at times dealing with an array of both on-field and off-field incidents, usually at very short notice.

In Round 2 this season, Port Adelaide will play Adelaide in the Showdown and Port Adelaide will be wearing black armbands in memory of Mark.

Family was hugely important to Mark.

He was as excited as Edwina and I had ever seen him when Nicholas and William were born and he became a proud uncle for the first time.

However this was quickly surpassed when Matthew was born and he and Leslee became proud parents.

He was a great dad, totally devoted to Matthew, helping with homework, hours on sidelines barracking, trips to Melbourne for the tennis and sharing the joy and often despair of life as a Port Adelaide supporter.

Barracking, he’d be yelling out to a very young Matthew telling him to quickly “get back on your feet as you won’t get your next kick lying on the ground.”

This was the way Mark approached his own life. Once an obstacle had presented itself he accepted it, digested it and dealt with it without complaint He was more than happy to share his

IN HONOUR

opinion of selected politicians, journalists, umpires, the Australian Football League, lawyers and, God forbid, even some members of the judiciary.

His analysis was always colourful and unfiltered and, if challenged, repeated.

Mark was a highly disciplined person.

He had an enormous capacity for work and committed himself totally to each and every case.

He was a great storyteller and had a brilliant sense of humour - one of those annoying people who in a group situation, one by one, others would eventually stop talking and everyone would end up listening to him.

He was engaging and genuine and was fiercely loyal to his friends and family.

He loved a good fight and he was the person you wanted in your corner.

Underlying health issues have been a part of Mark’s entire adult life. He took them very seriously, ensuring that he was always in the best possible physical condition that he could be to give himself every chance of a long life.

His liver transplant in 2006 was a blessing that he was always grateful for and while the news that was delivered to him twelve months ago was devastating, he accepted it and did what he could to keep it at bay.

He had the highest admiration for all of the medical staff involved in his treatment over years in particular Libby John and the entire team on the Liver Transplant Unit at Flinders Medical Centre.

Equally as important has been the love, care and support shown by Leslee throughout Mark’s illness which has been truly remarkable and has made all the difference.

On Sunday November 24, two weeks before he died, he was determined to get to Matthew’s Valete Dinner at St Ignatius and he did. This is the final official occasion in which the parents and the graduating students come together to celebrate the completion of their time at the school.

The effort that was required and the

energy that it consumed left nothing in reserve but he got there and loved every minute of it.

He had a truly remarkable life that has impacted a wide and diverse group of people who will all remember him fondly for many different reasons.

Mark leaves behind people whose fears were eased with some simple legal advice. He leaves behind people for whom he has advocated. People whose innocence he has been able to prove.

People who, thanks to him got a second chance and with it the opportunity to turn their lives around.

He leaves behind colleagues who he loved and engaged with over four decades and a host of younger lawyers who have benefited from his knowledge, wisdom and experience as well as friends, some lifelong, others more recent who will always remember him with great affection.

But above all, after 62 short years of a life lived at full throttle, Mark Griffin leaves behind a family who loved him very dearly and always will. B

Marie pays tribute to her dear, committed friend

A

t the funeral of Mark Griffin QC, Marie Shaw QC spoke of her generous, dedicated, courageous friend of over 30 years who she affectionally knew as “Griff ”.

“No better friend could anyone have,” Marie said. “He knew when I was struggling, and he was always there for me.

And not once in those 30 years did Mark ever let me buy my own cup of coffee” Marie said that Mark routinely took on the most difficult cases as a barrister and always defended his clients fearlessly.

She also described a different kind of courage she saw when Mark knew that his time on earth was nearing an end, but was determined to see his beloved son Matthew graduate from high school.

Last year Marie organised a surprise

event to honour Mark, telling Mark that the event in question was to pay tribute to Frank Moran QC. After Mark had spoken about the entertaining antics of Frank Moran, Michael Abbott AO QC put his arm around Mark and said: “We love you Mark. You’re one of the bravest men I’ve ever met, and tonight, we want to tell you what you mean to us.”

The first speaker was the Chief Justice Chris Kourakis, who concluded his remarks about Mark by saying: “Of course, Mark is always welcomed when he appears before the Court of Criminal Appeal.”

Without skipping a beat, Mark interjected with his wicked sense of humour: “You wouldn’t think so from the judgments I get”.

Judge Liesl Chapman and Craig

Caldicott also paid tribute to Mark, telling him what a great lawyer, father and friend Mark was.

“We knew we were the ones who were richer for the tears we shared that night, for the enduring memories we now have of Mark, and for the opportunity we had to show Mark how much we loved him,” Marie said.

February 2020 THE BULLETIN

31

FEATURE

How ‘FloatLegal’ will assist in providing effective and efficient legal services and improve access to justice VANESSA HUTCHENS, LAW STUDENT, UNIVERSITY OF SOUTH AUSTRALIA The following essay was awarded first place in a competition run by the Law Society and University of Adelaide’s GDLP program, which invited students from all South Australian-based law schools to submit an essay of 500 to 1500 words addressing the question “How an application or an existing/emerging technology will assist in providing effective and efficient legal services.”

Winning author Vanessa Hutchens, a University of SA student, was awarded $1500, while the second-place prize of $500 went to University of Adelaide student Nicholas Arundel.

A

ustralians have access to premium legal services. Yet, many Australians choose to not seek legal advice. There is a perceived notion that the financial liability associated with seeking advice, may outweigh the burden of the legal predicament. Access to justice is a pertinent issue in the legal profession, and there are many projects that aim to promote inclusiveness, particularly for those who are vulnerable in our society.1 This paper proposes that technology can be used to enhance communication between clients and lawyers, through the use of an online platform where clients can present their legal queries to qualified legal practitioners. As such, clients are granted access to relevant information that can allow them to make more informed choices as to how to proceed with their query outside of the platform.

CURRENT USE OF TECHNOLOGICAL PLATFORMS IN THE LEGAL SECTOR Taking the first step towards seeking legal advice doesn’t need to be expensive and complicated. Technology has advanced access in many ways already in the legal profession. Education in the law is facilitated by learn online sites, that provide students with a portal in which to access academic material. Databases are warehouses for cases, legislation and journal articles – all accessible at our fingertips. Websites act as portals of information for governments, law firms,

32 THE BULLETIN February 2020

published media materials, and more.

Professional networking platforms such as LinkedIn2 allow legal professionals to gain access to job opportunities, make connections with others in the profession, share accomplishments and promote and endorse their interests. Yet, the legal profession could get better at being more accessible to clients, particularly those who can’t afford legal services.3 Technology should be harnessed to close the gap that exists between legal practitioners’ ability to assist on legal matters, and client’s ability to reach out and ask for help.

TECHNOLOGY: A HELP OR HINDRANCE FOR THE VULNERABLE? There is some debate around whether the use of technology helps or hinders people who are particularly vulnerable in our communities in their quest to access justice.4 Living in a remote location, homelessness, or being a refugee for example can render people unable to access technology. It is true that this is often the case, but not always. Often people living remotely benefit from the use of technology, as it can increase access to information and reduce travel costs.5 Having FloatLegal as a resource that is available provides an extra possible route to a solution, should these individuals manage to gain access to the internet. Community centres often offer free internet services, and access to the platform would be free

Essay competition winner Vanessa Hutchens (left) with then Law Society President Amy Nikolovski

of charge. Moreover, the platform will encourage a cultural shift, encouraging an increase in lawyers wanting to offer their services pro bono. If the legal profession saw a surge in lawyers taking cases on pro bono, this would be hugely beneficial to those who are vulnerable and in need of legal assistance.

THE RIGHT TO ACCESS JUSTICE; THE RIGHT TO A PIECE OF MIND As noted by the Hon Michael Kirby AC CMG in his paper ‘Law and Justice in Australia: Room for Improvement’: Law is not just an ordinary occupation.

It is not a mechanical job. It is a vocation committed to justice. It is one fundamentally dedicated to the principles of human dignity and human rights.6 There is some debate around whether legal services are in fact a right or a service.7 However, access to legal services should be as accessible as advice from a doctor. It need not be the legal equivalent of a life-threatening condition, to have a professional provide you with some piece of mind. The legal system has been described by the Hon Mr Kirby as a ‘rolls royce system of law’,8 however there needs to be some offering that accommodates for people with smaller claims.9 Everybody has an equal right to receive advice about their health. Similarly, everybody has a right to justice and a solution to a

FEATURE

legal complaint.10 As is in the healthcare profession, the law fundamentally exists to assist and protect people against potential injustices. FloatLegal aims to increase the amount of cases that are handled by lawyers. Lawyers can identify prospective clients on the platform, and opt to take the client on bro bono, if they wish. The shift to lawyers to take on more work pro bono, is something that has been encouraged within the profession.11 Even a simple identification that there is merit to a legal query in which to warrant a face to face meeting, is often what people are wanting to find out. On the contrary, a referral to a government website, or another relevant online resource could provide sufficient.

The issue is that often people simply don’t know where to start.

In our current technological climate, platforms are being introduced to more efficiently address client needs. Uber12 is an example of utilising technology to throw a request for a service into the cloud, and wait for a response. In Uber’s case, the service costs. The platform being proposed by this paper - FloatLegal, similarly ‘floats’ legal queries and waits to see if there might be bite in the form of answers from qualified legal practitioners. People can post their legal concerns up into the ‘cloud’, and see if the legal weather system reacts, which could lead to the formation of a formal and paid (or pro bono) legal relationship. It gives some control back to the people who are seeking the service, and increases transparency in the legal profession between lawyers and clients.

Lawyers have a reputation for being conservative, intimidating and expensive.13 However, the most effective lawyers are approachable, honest, transparent and inclusive. Technology can be used to enhance inclusiveness in the legal profession through the of FloatLegal, that serves as a mode of communication for prospective clients and legal professionals.

Clearly, advice provided through this online mechanism cannot constitute formal legal advice, however it can act as a first point of call, a guide and a useful tool to primitively diagnose legal issues. Moreover, it aids to combat issues for clients seeking some immediate guidance, however cannot

attain this due to their physical proximity to legal services, for example people living in remote locations.14 Legal practitioners can ease the mind of someone who is in distress with a legal concern by identifying merits to the query, and distinguishing whether they have a potential case. Is there scope for a legal practitioner to take the case on bro bono? What law firms could be recommended for them to visit if they have a case that needs further advising?

What websites can they be referred to, what forms can be completed, or where can they be directed to read more about their particular concern? These things seem simple to qualified legal practitioners – however in many cases the crux of the issue when it comes to access to justice is a reluctance, or inability for a client to make an appointment with a lawyer.

BENEFITS TO LAWYERS The creation of a platform such as FloatLegal offers obvious benefits to clients. However, there are substantial advantages for lawyers who engage with the platform. It recognises lawyers who go above and beyond to assist people in need of advice. The platform sets a stage where lawyers can share their knowledge and expertise, with the transparency of allowing other practitioners as well as clients to view and benefit from that information.

It showcases altruistic qualities which can enhance standing in the profession, as well as in the wider community. As has been encouraged by His Honour Chris Kourakis CJ, it should be the duty of everyone in the legal profession to assist those less fortunate than ourselves.15 FloatLegal can also act as a platform from which educational and governmental resources can be pooled together in one place. Additionally, it allows qualified and admitted, yet non-practising lawyers an opportunity to remain engaged with the legal community on a professional and client basis.

CONCLUSION The fundamental goal of FloatLegal is to promote inclusiveness in the legal profession. It’s to advance the legal profession through the use of technology,

to open itself up to people suffering the burden of legal concerns. FloatLegal allows the sharing of information and educates clients about what services are available to them in their communities, as well as outside of their communities. The opportunity to seek answers to legal questions from lawyers is as much a of a right as seeking advice about your health from a doctor, or as a right to education. FloatLegal uses technology to encourage clients to reach out, and commence a journey toward seeking resolution of their issue. B Endnotes 1 The Law Council of Australia, Access to Justice, The Justice Project <https://www.lawcouncil.asn.au/ justice- project/access-to-justice>.

2 < https://www.linkedin.com>.

3 Monash University, Taking the Next Steps to Improve Access to Justice, An Interview with Dr Warren Mundy, Presiding Commissioner on the Productivity Commission’s Access to Justice Inquiry (December 2014) Monash University <https://www.monash.edu/law/newsand-events/news/articles/archive/taking-thenext-steps-to-improve- access-to-justice>.

4 See, eg, Marja Elizabeth, ‘Does Technology Help or Hinder Access to Justice for Vulnerable People?’ (2017) 39 Bulletin (Law Society of South Australia) 8-9.

5 Caroline Hart and Adrian Hallewell, ‘The Regional Route to Online Law and Justice: Challenges and Opportunities for Rural Lawyers’ (2018) 38 Proctor 18-20.

6 Hon Michael Kirby, ‘Law and Justice in Australia: Room for Improvement’ (2004) 4.2 Queensland University of Technology Law and Justice Journal 289.

7 See, eg, Steven Rares, ‘Is Access to Justice a Right or a Service?’ (2015) 89 Australian Law Journal 777.

8 Melissa Coade, Legal Experts Speak Up For the Future Prospect of Online Courts (7 August 2017) Lawyers Weekly <https://www.lawyersweekly. com.au/wig-chamber/21633-legal-experts-speakup-for-future-prospect-of- online-courts>.

9 Ibid.

10 See, eg, Penni Pappas, Chris Kourakis: Right Place, Right Time (23 November 2012) NeosKosmos <https://neoskosmos.com/en/14872/chriskourakis-right-place-right-time>.

11 Rares, above n 7, 790 [89] 12 < https://www.uber.com>.

13 See, eg, Felicity Nelson, Why Do People Hate Lawyers So Much (17 February 2015) Lawyers Weekly <https://www.lawyersweekly.com.au/ folklaw/16179-why-do-people-hate-lawyers>.

14 See, eg, Caroline Hart, ‘’Better Justice? Or Shambolic Justice?: Governments Use of Information Technology for Access to Law and Justice, and the Impact on Regional and Rural Legal Practitioners’ (2017) 1 International Journal of Rural Law and Policy 1-21.

15 Michael Esposito, ‘Luck of the Draw: Lawyers Reflect on Their Privileged Legal Position at New Legal Year Celebration’ SA Law Society Bulletin (online), March 2019 <https://www.lawsocietysa. asn.au/pdf/Bulletin/2019March/index.html>.

February 2020 THE BULLETIN

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TAX FILES

The Land Tax Changes: Aspects of the Trust Notification Provisions and the Ex Gratia Schemes BERNIE WALRUT, MURRAY CHAMBERS

A

fter much public debate and discussion, the 2019 State Budget proposal to rewrite significant aspects of the land tax laws in South Australia was completed on 5 December. 2019 with the Governor assenting to the Land Tax (Miscellaneous) Amendment Act 2019 (SA) (LTMA). Whilst the transition provisions permit the lodging of some notices prior to midnight on 30 June, 2019 the operation of the substantive provisions of the LTMA do not commence until midnight of 30 June, 2020.1 The changes effected by the LTMA can be broadly described as fourfold: significant rate reductions; a two staged taxation of commonly owned land, the first stage assesses the common ownership land and the second stage assesses each owner with an aggregation of all land interests of the owner or deemed owner at this stage with a credit for the tax already paid;2 a specific regime for the taxation of trusts with some trusts suffering a surcharge; and the grouping of commonly controlled companies for the purposes of assessing the land tax on an aggregated basis.

In addition, three ex gratia schemes and their details were announced by Treasurer during the course of the passage of the Bill through the Legislative Council.3 The first of those ex gratia schemes is the land tax transition fund that is available to provide relief to persons who suffer an increase in their land tax over three years by reason of the aggregation of the properties owned by them on the introduction of the Bill.

It does not apply to those suffering an increase by reason of the trust surcharge or the company aggregation provisions.4 The second is to provide developers of affordable housing land with a land tax concession for 12 months. The third is to provide affordable community housing land tax relief for up to 100 properties commencing from 1 March, 2020

34 THE BULLETIN February 2020

where the property is rented under an arrangement with a registered community organisation at less than 75% of the current market rent.5

NOTIFICATIONS IN RESPECT OF TRUSTS Once the provisions commence there is a plethora of notices that are required to be given to the Commissioner in connection with trusts, usually within one month of the occurrence of a particular event. In the case of administration trusts,6 it must be lodged within one month of a grant of probate or letters of administration.7 The notices to be lodged must be in the form, contain the information and be accompanied by the documents required by the Commissioner.8 The transition provisions of the LTMA do not allow for such notices to be given prior to the commencement of its provisions.9 In the case of an implied, constructive or resulting trust the provisions are simply not clear as to whether a notice ever needs to be lodged with the Commissioner. The definition of trust provides that it does not extend to such trusts,10 except where expressly provided. The only provisions that expressly deal with such trusts are sections 13E and 13F and neither require the provision of a notice.11 The notices required to be lodged by trustees include: where a person is a trustee of land in South Australia at the commencement of the legislation;12 where a person becomes a trustee of land in South Australia or as a trustee acquires land or further land;13 a trustee of land in South Australia who disposes of land must notify the Commissioner of the disposal;14 if a person is trustee of a trust that owns land in South Australia and the nature of the trust changes (i.e. from one of the following, as defined, to another of the following: a fixed trust, a unit trust, a discretionary trust, an excluded trust or a public unit trust);15 if a trustee

of fixed or unit trust has lodged a notice with the Commissioner specifying the beneficiaries or unitholders16 and there are changes of such persons, then the trustee must notify the Commissioner of such change;17 if the trustee of a fixed or unit trust is a corporation and another corporation (or related corporations) acquires more than 50% of the interests in such trusts or already has such an interest at the commencement of the provisions, the Commissioner must be notified;18 where a person is the trustee of an administration trust19 that includes land, on the completion of the administration the Commissioner must be notified of such completion.20 There is no obligation on a trustee to notify the Commissioner of the existence of a trust owning land in South Australia in two situations. One exception is where at the commencement of the LTAM the trustee has notified the Commissioner of that fact for the purposes of the Act. Under the current section 13(3)(a) of the Land Tax Act 1936 (SA) a trustee of a trust can notify the Commissioner of the existence of the trust.21 Where such notice is given, the taxable value of the land of the trust is not aggregated with other land owned by the same taxpayer, other than land in trust for the same beneficiary. It appears that where such notifications have been provided it will be unnecessary to provide the Commissioner with a further notice.

The other notification that may satisfy this situation is where the trustee has already lodged with the Commissioner a notice of the beneficial owners, unitholders or a designated beneficiary as provided for by sections 12, 13 and 13A of the LTA. It is not clear whether it is intended that a notification under those provisions prior to the commencement of the remaining provisions of the LTMA would be sufficient for all purposes. It would appear to involve unnecessary duplication if that

TAX FILES

is not the case. After the commencement of all of the provisions of the LTMA one would expect a single notification and nomination process will be possible.

The other situation where a notification is not required is where at the commencement of the LTMA the land the subject of a trust is “excepted or exempted from land tax by the Commissioner”.22 That expression can be interpreted in one of two ways. The first is that there is no need to give notice of the trust either where the land is excepted, as provided by section 4 of the LTA, or where the Commissioner has exempted the land under section 5 of the LTA. Under section 5, the Commissioner may exempt land without an application from the land owner for an exemption.23 The second possible interpretation of that expression, is that the phrase “from land tax by the Commissioner” qualifies both “excepted or exempted” rather than simply “exempted”. If that view is adopted then the situation will be anomalous. On that interpretation trustees of trusts with primary production land will not come within the notification exclusion as that land is excepted24 (i.e. they will be required to notify the Commissioner of the existence of the trust) whilst trustees of land that is a principal place of residence will come within the notification exclusion because it is exempted from land tax by the Commissioner.25 Having regard to the structure of the LTA one may suggest that this is not the intended interpretation.

Further, if the second possible interpretation is correct, then trustees of land in the State that is excepted under section 4 of the LTA will commit an offence if they fail to give notice of the trust as required by section 13D of the LTA.26 There appears to be no general power for the Commissioner to relieve taxpayers from such obligations, unless the lodgement obligation may be the subject of a special arrangement for lodging of

returns by a class of taxpayers under Part 6 of the TAA.27 If it can be the subject of such an arrangement, then the Commissioner may provide an exemption (or a partial exemption) for taxpayers from specified provisions of a taxation law to which it applies (i.e. lodging of a notice).28 As already described, where the trustee of a fixed or unit trust is a corporation and another corporation (or related corporations) acquires more than 50% of the interests in such trust or already has such an interest at the commencement of the LTAM there is an obligation on the corporate trustee of that trust to notify the Commissioner of the trust or any changes. This provision appears to compliment the corporate aggregation provision in section 13G(5). Under those provisions, fixed trusts and unit trusts that have corporate beneficiaries (either a single or grouped corporations) with more than a 50% interest are intended to be aggregate with the corporate group for land tax purposes, notwithstanding they are trusts.29 A further difficulty with that notification requirement is that it is not limited to fixed or unit trusts owning land or land in South Australia.30 The provision applies to any fixed or unit trust with such corporate holdings of more than 50% and a corporate trustee.31 The failure by the corporation, that is such a trustee to give the notice, constitutes an offence.

Once again, one may query whether the Commissioner has any power to relieve the corporate trustee from such obligations under Part 6 of the TAA.

NOTICES IN RESPECT OF TRUSTS THAT ALTERS THE INCIDENCE OF LAND TAX In addition to those notices the trustees of certain trusts with land may lodge with the Commissioner notice of the beneficial owners, unitholders or a designated beneficiary. As described,

the transition provisions of the LTMA allow for such notices to be given prior to the commencement of its substantive provisions.32 The lodgement of a notice in those situations has a number of effects, one is that the trustee is then assessed at the base rate (i.e. no trust surcharge). Another is that the beneficial owners, unitholders or a designated beneficiary have aggregated with their land holdings certain interests in the respective trusts land holding for assessment purposes and are assessed on their aggregated holdings at base rate. They also receive certain credits for the tax paid by the trustee of the trusts.

In the case of the fixed trust,33 the trustee may lodge a notice at any time, but once a notice is lodged, if withdrawn, which it may be, no further notice may be lodged thereafter.34 In the case of a unit trust35 the provisions are much the same as the fixed trust.36 In the case of a discretionary trust37 the notice can only be lodged up to 30 June, 2021. Where such a notice is lodged the rate reduction and aggregation with the designated beneficiaries holdings only applies in respect of land owned by the trustee of the discretionary trust as at the introduction of the LTMA into the House of Assembly.38 The notice in respect of the discretionary trust may specify only one natural person who must consent to being nominated and 100% of the land owned by the trustee of that trust as at the introduction of the LTMA into the House of Assembly is attributed to that designated nominee.39 There are restrictions on who may be the nominee.40 If withdrawn no further notice can be lodged. The nominee can withdraw the consent with the consequence that the notice is deemed to be withdrawn by the trustee.41 The nominee can be replaced in the event of death, incapacity, relationship break down or on the occurrence of other events prescribed by regulation.42 February 2020 THE BULLETIN

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TAX FILES

EX GRATIA PAYMENTS Complementing the land tax changes are three ex gratia schemes.

One provides relief for those adversely affected by the new aggregation rules and the others provide relief for those providing affordable housing. Under most ex gratia schemes and ad hoc ex gratia arrangements in the past in South Australia, the Treasurer has paid the tax to the Commissioner, relieving the taxpayer of the obligation to pay the tax.

The amount was not usually paid to the taxpayer, though it is possible that in some situations the tax may have been refunded under such arrangements. One assumes that a similar direct payment arrangement will apply to each of these proposed ex gratia schemes.

An issue that has been raised, in connection with the operation of these schemes, is what are the income tax consequences under the Income Tax Assessment Act 1997 (Cth) (ITAA97) for those benefiting from such payments under. A starting point is to identify whether it is ordinary income. If it is ordinary income then it will be taxable.

Such amounts are likely to be ordinary income where the taxpayer is conducting a rental property business.43 If it is not ordinary income then is the amount a recoupment for a deductible expense for the purpose of Subdivision 20-A of ITAA97. An amount is a recoupment of a loss or outgoing and an assessable recoupment if the taxpayer can deduct an amount for the loss or outgoing for the current year or has deducted or can deduct an amount for the loss or outgoing for an earlier income year under a provision listed in section 20-30. Item 1.2 of the table in section 20-30 lists rates and taxes, so far as section 8-1 allows the taxpayer to deduct such rates and taxes.44 Section 20-25(2) also provides that if some other entity pays an amount on behalf of the taxpayer (e.g. the Treasurer in this situation) in respect of a loss or outgoing that a taxpayer incurs, the taxpayer is taken

36 THE BULLETIN February 2020

to receive the amount as a recoupment of the loss or outgoing. It is not an assessable recoupment if it is ordinary income or statutory income.

Section 8-1 allows a taxpayer to deduct rates and taxes, provided there is a sufficient connection with the taxpayerâ&#x20AC;&#x2122;s income producing activities (i.e. incurred in gaining or producing the income or necessarily incurred in the conduct of a business) and they are not of a capital, private or domestic nature. Land tax has long been accepted as a tax that is deductible when incurred in connection with income producing activities.45 It is therefore suggested, that where an ex gratia payment is actually paid to the taxpayer it is likely to constitute either ordinary income or an assessable recoupment. Where it is paid direct by the Treasurer on account of the land tax liability or part of it, the payment will still constitute an assessable recoupment by reason of the operation of section 2025(2) of ITAA97. If it is not paid to the taxpayer but has the effect of reducing the amount actually payable by the taxpayer, it does raise the question as to whether it effects a reduction of the amount incurred or in some way a non-cash business benefit to which section 21A of the Income Tax Assessment Act 1936 (Cth) applies.

These are matters that will require further consideration in each individual situation.

BENEFICIARY ENTITLEMENT TO INCOME TAX DEDUCTION OF LAND TAX As described, where a notice is given by the trustee of a fixed trust, unit trust or discretionary trust notifying the Commissioner of the beneficiaries of the fixed trust, the unit holders of the unit trust or a designated beneficiary of a discretionary trust there are two particular land tax consequences. The trustee of the trust is thereafter taxed at base rate and the beneficiaries, unit holders and designated beneficiaries have aggregated with their land holdings certain interests in the respective trusts land holding for their

assessment purposes subject to receiving certain credits.

A non-land tax consideration in deciding whether to lodge such a notice is whether the beneficiary who will become liable to pay the land tax will be entitled to a deduction for such payments under the ITAA97. Once again this requires consideration of section 8-1 of ITAA97.

Is the amount incurred in deriving assessable income or necessarily incurred in the conduct of a business? As will be briefly described, it is likely to be easier to demonstrate that a taxpayer has incurred such an outgoing in gaining or producing assessable income in the case of a fixed trust or unit trust.

Further, in the case of a fixed trust it may be easier to demonstrate if the trustee is a bare trustee with no active duties,46 but even where there are active duties it is still possible that the land tax liability of the beneficiary has been incurred for the purpose of gaining or producing income where the purpose of the trust is the derivation of income for the benefit of the beneficiaries. In the case of a unit trust, with fixed rights to income, once again where the activities of the trustee are directed at deriving income for the benefit of unitholders it is possible that it can be demonstrated that the land tax obligation was incurred in the gaining or producing assessable income. In the end it will be necessary, in each situation, to establish that the essential character of the outgoing incurred was to gain or produce assessable income. In determining the essential character of such outgoing, ultimately regard must be had to its connection with the income producing activities of the taxpayer.47 The situation is much more difficult in the case of a discretionary trust. In TD 2018/9 Income Tax: deductibility of interest expenses incurred by a beneficiary of a discretionary trust on borrowings on-lent interestfree to the trustee the Federal Commissioner has determined that a beneficiary of a discretionary trust who borrows money,

TAX FILES

and on-lends all or part of that money to the trustee of a discretionary trust interest-free, is usually not entitled to a deduction under section 8-1, for any interest expenditure incurred by the beneficiary in relation to the borrowed money on-lent.

The Federal Commissioner further states in that TD that It is only where the beneficiary is presently entitled to income of the trust estate at the time the expense is incurred and the expense has a nexus with the income to which the beneficiary is presently entitled that some part of the expense might be deductible. The Federal Commissioner continues that such an expense is likely to have been incurred in the pursuit of one or more objectives,48 other than the derivation of assessable income by the beneficiary and will not be deductible to the extent of any nonincome producing objective or objectives.

The Federal Commissioner also indicates, that whilst the determination is concerned with interest deductibility, the principles described will apply to other expenses incurred by a beneficiary of a discretionary trust where it is asserted the expense is deductible by reason of its connection to an expected receipt of a trust distribution.

As described, in the case of discretionary trusts the consent of the beneficiary is required. Any beneficiary consenting to such a nomination will need to consider whether any excess land tax payable (i.e. after the credit for the land tax paid by the trustee at base rate) will be tax deductible without anything more. One may also question whether, if the price for the consent of such a beneficiary is that the trustee of the discretionary trust will keep the beneficiary indemnified against any land tax payable, will that be adequate for both?

By Bernie Walrut, Murray Chambers.

Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

Endnotes 1 Section 2(1) and Schedule 1 of the LTMA. 2 In many situations, the tax paid at the common ownership level or by a trustee at the level immediately above the other owner then being assessed.

3 The details of those arrangement are described in Hansard (Legislative Council).

4 The scheme will require that the land tax increase exceeds $2,500, is limited to a percentage of the increase and is scaled back over the three years.

It is capped in each of those years and does not apply to increases in excess of $102,500.

5 Each of these arrangements has additional requirements as to their availability which have not been described in this article. Hansard should be consulted for further details, as at the date of the preparation of this article, Revenue Rulings describing the operation of these arrangements had not been published. For a discussion as to the rights of taxpayers under such arrangements see Chubb Electronic Security Australia Pty Ltd v Commissioner of State Taxation [2012] SASC 164.

6 The holding of assets of a deceased person by a legal personal representative during the period described by the definition of such trusts in section 2(1).

7 Section 13D(10) of the Land Tax Act 1936 (SA) as amended by the LTMA (LTA).

8 Section 13D(11) of the LTA. 9 Section 2 and Schedule 1 of the LTMA. 10 See section 2(1) of the LTA. 11 In some situations, section 19 of the LTA may require information to be provided to the Commissioner or the Commissioner notified where an assessment is incorrect. If there is no assessment of the trustee of a constructive, implied or resulting trust, there is a question as to whether the taxpayer is required to inform the Commissioner under section 19(2)(a)(v) of that fact. The section simply refers to a “trust” and not explicitly to a constructive, implied or resulting trust as required by section 2(1).

12 Section 13D(2) of the LTA. 13 Section 13D(1) of the LTA. 14 Section 13D(4) of the LTA. 15 Section 13D(5) of the LTA. 16 See sections 12 and 13 of the LTA. 17 Sections 13D(6) and 13D(7) of the LTA. 18 Section 13D(8) of the LTA. There are further difficulties with this provision as discussed below.

19 The holding of assets of a deceased person by a legal personal representative during the period described by the definition of such trusts in section 2(1).

20 Section 13D(9) of the LTA 21 The notification is to be made in the manner prescribed by the Regulations.

22 Section 13D(3) of the LTA.

23 Section 5(5) of the LTA. 24 Section 4(1)(l).

25 Section 5(10)(a).

26 See section 57 and the definition of “return” in section 3(1) of the Taxation Administration Act 1996 (SA) (TAA).

27 There has long been a discussion about whether Part 6 is indeed broad enough to support the Commissioner’s online systems and practices as they have developed. It has been suggested that after nearly 24 years since its adoption, the TAA needs a general review as to its operation.

This is one of the areas that needs significant improvement with the change in practices, systems and information technology.

28 Section 35(2) of the TAA. 29 There is a possible inconsistency in the working of this provision with sections 12 and 13 where the trustee gives a notice under one of those sections.

30 Unlike the other notification provisions in section 13D that require the trustee owns land.

31 This provision was not in the Consultative Bill.

Whether it is intended to operate as broadly, is uncertain. It appears unnecessarily broad. A further query is whether it applies where the company holding more than 50% is itself a trustee.

32 Section 2 and Part 1 of Schedule 1 of the LTMA. 33 As defined in section 2(1) of the LTA. It should be noted that the fixed trust definition is the default class, in other words, if the trust does not satisfy the definitions of a unit trust, discretionary trust or an excluded trust (and by implication an implied, constructive or resulting trust) then the trust is a fixed trust for the purposes of the LTA. 34 Sections 12(1) and 12(4) of the LTA. 35 See definition of a unit trust scheme in section 2(1) of the LTA. 36 Sections 13(1) and 13(4) of the LTA. 37 See definition in section 2(1) of the LTA. 38 That was 16 October 2019.

39 Section 13A. 40 Section 13A(13).

41 Section 13A(3).

42 Section 13A. 43 Section 20-20 of ITAA97.

44 See discussion in R Deutsch et al The Australian Tax Handbook 2019 (Thomson Reuters 2019) [6 580] (2019 Tax Handbook).

45 2019 Tax Handbook [9 400].

46 Notwithstanding past practices of the Federal Commissioner of looking through such arrangements, there appears to be doubts raised by some officers of the Federal Commissioner, as to whether this practice is still appropriate for income tax purposes.

47 FCT v Smith (1981) 147 CLR 578, 586.

48 There appears to be no description as to what those other objectives may be or examples of them.

February 2020 THE BULLETIN

37

FEATURE

OPCAT is coming - and now is the time for SA to set up its monitoring system for all places of detention DR LAURA GRENFELL, ASSOCIATE PROFESSOR IN LAW, UNIVERSITY OF ADELAIDE

T

he belief that torture or cruel, inhumane or degrading treatment is something that happens elsewhere, in third world countries perhaps, but not here in South Australia, is misguided. As many in the legal profession know, particularly those who regularly visit places of detention, wherever people are being held in such places, there is a risk that they may be subjected to such treatment.

Take for example the case of a South Australian prisoner Jacqui Davies, who (according to the investigation of the SA Ombudsman) in 2011-12 was restrained for eight months for around 22 hours per day, hand cuffed to a bed via each hand while lying on her back.1 While this was to prevent the prisoner from self-harming, institutions need to take seriously the requirement that restraints must be applied for the minimum time necessary and subject to regular review and approval. Institutions need to come up with smarter means of addressing these problems, in accordance with national and international standards, without subjecting a person to degrading treatment, which was the Ombudsman’s finding in the case of prisoner Davies. A system for the monitoring of all places of detention is important to prevent this risk.

In New Zealand, the use of “tie down beds” (where prisoners are restrained by their legs, arms and chest) to prevent self-harming led to a perfect media storm in 2017 when it came to light that one prisoner was restrained in this manner, often naked, for almost 600 hours (16 hours per day for 37 consecutive days) due to prison understaffing.2 This prolonged period of mechanical restraint was based on one approval. In another case, a prisoner was kept in a waist restraint (with their hands cuffed behind their back) almost continuously for more than three months. These cases were reported

by NZ’s detention monitoring body, the National Preventive Mechanism (NPM) which indicated that despite the intention

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Photo of SA OPCAT Roundtable participants at Adelaide Law School, 4 December, 2019

to maintain the prisoners’ wellbeing, the cases constituted cruel, inhumane or degrading treatment, contrary to the UN Convention against Torture.3 This report initially led to some push-back from the NZ Corrections Department but two years later it announced that tie down beds had been removed and banned and a prison mental health unit would open. Ultimately such cases have the potential to assist institutions to secure more resources so as to deal more humanely with those being held in places of detention.

In December, 2017, the Federal Government voluntarily ratified OPCAT (the Optional Protocol on the Convention against Torture) which is an international instrument to assist state parties to set up monitoring mechanisms to prevent torture and cruel, inhuman or degrading treatment in all places of detention. Given our federal system, each Australian jurisdiction is committed to setting up these mechanisms and this includes South Australia. The Federal Government has nominated the Commonwealth Ombudsman as the NPM to coordinate these mechanisms across Australia but each jurisdiction must set up its own preferred NPM system which complies with OPCAT. So far, the South Australia Government has not indicated which body/bodies will undertake this monitoring role. It has until

December, 2020 to have a functioning NPM. In Western Australia, two bodies – the Office of the Custodial Inspectorate and the State Ombudsman – have been nominated to together undertake the monitoring role in that state. Other jurisdictions, like South Australia, are in the process of working this out, some more actively than others.

The SA Government will need to decide whether to take a centralised or decentralised approach to SA’s NPM. A centralised NPM would mean a single body to monitor all places of detention in SA with the help of teams of experts depending on the place of detention. A decentralised NPM would mean a group of state monitoring bodies. Regardless of which is chosen, the SA Government would need to ensure that the functions of the monitoring body are not mixed up with the other functions of the chosen body/ies. NZ, for example, has a decentralised model wherein the Ombudsman is one of four NPM bodies.

This means that the Ombudsman must separate its complaints handling functions from its monitoring functions by ensuring that the two sets of staff are separated and use different data bases.

In December, 2019, a SA Roundtable on OPCAT (co-hosted by Adelaide Law School) brought together relevant SA

FEATURE

bodies and civil society to hear from the Commonwealth Ombudsman and Australian Human Rights Commissioner about what South Australia needs to do to prepare. The Roundtable included experts from New Zealand where a NPM has been operating for a decade. It also included an expert from the European mechanism, the Committee on the Prevention of Torture which has been operating for 30 years.

Hearing about and learning from these monitoring experiences was invaluable.

A key takeaway from the international speakers was that adequate monitoring is resource-intensive, and there was general consensus among participants from existing state bodies that they could not absorb OPCAT-type functions without significant additional resources.

Centre (YTC) so as to cover, for example transport to and from the YTC and court.

For our nine prisons, SA currently lacks a system of monitoring by paid, independent inspectors with the relevant expertise. It has not followed Western Australia and other jurisdictions in setting up a statutory custodial inspector. In regard to SA’s locked mental health facilities, the Community Visitor Scheme (CVS) currently involves inspections but they are not necessarily conducted by teams with the relevant expertise. This was demonstrated by the CVS reports relating to the Oakden Older Persons Mental Health facility which did not mention the inappropriate and excessive use of restraints which later became a focal point of the Chief Psychiatrist’s Oakden inquiry.

THE SCOPE OF ’PLACES OF DETENTION’

HOW DOES MONITORING COMPARE WITH COMPLAINT HANDLING?

To most people, SA’s nine prisons, its youth detention centre and its locked psychiatric wards will come to mind when we think of places of detention but we should not forget that OPCAT covers all places of detention, whether or not they are intended to be places of detention.

This means that we need to consider places where people are not able to leave, such as locked units of residential aged care facilities, regardless of whether they are privately run.

MONITORING BY INDEPENDENT BODIES WITH RELEVANT EXPERTISE There is a strict requirement that independent bodies (ie those bodies not part of government) undertake the monitoring function and that these teams include those with relevant expertise in areas such as human rights standards, prisons, youth justice, geriatric care and mental health care. In SA, the detention of children and young people is already monitored by such a body but this monitoring does not extend to detention outside of the Youth Training

Under OPCAT, monitoring takes place via unannounced and announced visits to places of detention. SA already has bodies that handle individual complaints relating to places of detention, taking a reactive approach. The monitoring system is by contrast preventive and while it does involve speaking to those held in places of detention, it is not a mechanism to advance individual complaints or to make legal findings of torture or cruel, inhuman or degrading treatment. Instead the monitoring system seeks to assist institutions in proactively improving detention conditions so as to minimise any risk of torture or cruel, inhuman or degrading treatment. Monitors have access to all places of detention and to data systems. The NPMs are aimed at complementing existing oversight bodies rather than replacing them. Many people in places of detention are not in a position to initiate complaints, hence the need for this proactive, preventive monitoring approach.

OPCAT has an international dimension in addition to its national approach. This

entails visits by the UN’s Subcommittee on the Prevention on Torture (SPT) which engages with government and civil society and conducts monitoring visits alongside the NPMs. Given that the SPT’s limited resources, it is likely that it will visit about every eight years, which means that the NPM system is front and centre. The SPT has announced its first visit will take place in 2020 but the places of detention it chooses to visit is kept confidential. This should motivate SA’s government into action.

The UN Working Group on Arbitrary Detention has also announced a 2020 visit.

Both international bodies will be keen to understand how Australia monitors places of detention and whether there are any persons who are being unlawfully detained in facilities regulated and/or funded by the government, regardless of whether they are privately run. Both international bodies will visit every Australian jurisdiction and it is likely that they will be interested in SA’s places of detention.

Going forward, the SA Government needs to determine: which body/bodies will monitor places of detention; how these bodies will be properly resourced in order to monitor all places of detention under state jurisdiction and; whether legislation is required to ensure that these monitoring bodies can access all relevant data and places. B Endnotes 1 SA Ombudsman, Correctional Services, Department for – Treatment of a prisoner - Final Report [2013] SAOmbRp 17 (24 April 2013). Available from http://www.austlii.edu.au/cgi-bin/ sinodisp/au/other/SAOmbRp/2013/17. html?stem=0&synonyms=0&query=jacqui%20 davies 2 NZ Chief Ombudsman. A question of restraint.

Care and management for prisoners considered to be at risk of suicide and self-harm: observations and findings from OPCAT inspectors. Wellington: Office of the Ombudsman; 2017. Available from https:// www.ombudsman.parliament.nz/sites/default/ files/2019-03/A%20question%20of%20 restraint%20March%202017.pdf This was one of 44 incidents where prisoners were restrained via a tie-down bed for a period of more than 12 hours.

3 NZ Chief Ombudsman. A question of restraint. p5.

February 2020 THE BULLETIN

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WELLBEING & SUPPORT

Why Lawyers are more susceptible to Anxiety and Depression SARAH EL SAYED, SOLICITOR, SOLOMON HUMBLE COMMERCIAL LAWYERS

I

t is no myth that anxiety and depression appear to be more prevalent in the legal profession with one in three legal practitioners diagnosed with mental illness at some stage in their career. Research indicates that Australian lawyers also suffer from higher than average rates of psychological distress compared to the general population. This disproportionate statistic begs the question why are lawyers more susceptible to anxiety and depression.

ONE THEORY TO EXPLAIN THIS PHENOMENON IS THE PREVALENCE IN LAWYERS TO CULTIVATE A “PESSIMISTIC” PERSONALITY STYLE Research suggests that pessimism is maladaptive in most endeavours and in most professions the personality trait of pessimism will lead to poor performance. In contrast however, pessimism has strangely been described as a virtue for lawyers and equips lawyers to perform their job at a higher standard as a result of the inherent prudence within pessimism.1 As a lawyer, prudence allows you to identify perils and pitfalls that may conceivably occur in any given transaction and therefore protect your client in any given scenario (whether the event is likely to occur or entirely remote).

The ability to foresee risk that nonlawyers do not see is therefore highly adaptive for a practising lawyer.

SO WHY IS PESSIMISM SO BAD? Although pessimism may be beneficial for practice as a lawyer, the qualities that make for a good lawyer do not necessarily bode well with happiness. As lawyers are able see how bad things may be for their clients, they are often burdened with the tendency to translate those thoughts into their own lives. The problem with pessimism for lawyers is the inability for lawyers to switch off their pessimism when they leave the office. After years of fostering this style of thinking, it is likely to spread to your daily life, whether that’s personal relationships, financial decisions,

40 THE BULLETIN February 2020

or career planning. As a lawyer, you may find yourself with constant thoughts such as “I will not make partner” or “I will lose my job”. The long-term effects of this pessimistic personality style can be seriously damaging to your general wellbeing and carries the risk of an increase of depression and/or anxiety.

SO HOW CAN LAWYERS MANAGE THEIR ‘PESSIMISTIC’ PERSONALITY STYLE AND PROFESSIONAL PRUDENCE? An effective solution to pessimism is adopting an optimistic approach.

Optimism is the ability to dispute recurrent catastrophic thoughts effectively and this is a skill that can be learned.2 Learned optimism recommends that individuals use a three-stage disputing technique to identify and dispute negative thoughts to control their negative emotions.3 1. Learn to identify catastrophic thoughts and the circumstances under which they occur.4 “I don’t know what I am doing. I bet I missed something important. I should have read that document again. I’m going to be sued for negligence” 2. Learn to treat those thoughts as if they

were comments uttered by an external person or a rival.5 “That’s not really my thoughts - that’s my negativity speaking” 3. Learn to marshal contrary evidence against the catastrophic thoughts.6 “No, actually I am an exceptional lawyer, I have reviewed the document thoroughly, diligently and provided well researched and thorough advice” Of course, adopting a blind approach to optimism can be dangerous and therefore an effective technique for lawyers to learn and adopt is flexible optimism; a technique that enables people to determine how and in what situations one should use optimism and/ or pessimism. By learning the technique of flexible optimism as a lawyer you will be able to use optimism in your personal life, and maintain adaptive pessimism in your professional life.

Endnotes 1 Martin E.P. Seligman, Paul R. Verkuil, Terry H. Kang, ‘Why Lawyers are Unhappy’ (2001) 23 CARDOZO Law Review 33, 41.

2 Ibid 43.

3 Ibid.

4 Ibid.

5 Ibid.

6 Ibid.

BOOKSHELF

GOVERNMENT LIABILITY: PRINCIPLES AND REMEDIES Abstract from LexisNexis The first book in Australia to draw together the principal means of challenging and remedying harm caused by government decisions and conduct. This book familiarises readers with some of the complexities underpinning this area and covers public law

remedies, private law remedies, and statutory remedies...dedicated coverage of public law remedies (judicial review), private law remedies (tort, contract, equity and restitution), and statutory remedies (merits review, human rights legislation, ombudsmen, investigative agencies and discretionary compensation regimes).

J Boughey, E Rock & G Weeks LexisNexis Butterworths 2019 PB $128.00

CORPORATE GOVERNANCE IN NON-BANK FINANCIAL ENTITIES

David Millhouse LexisNexis Butterworths 2019 PB $110.00

Abstract from LexisNexis This ground-breaking book provides a comprehensive legal review of the Australian non-bank financial sector. It analyses and explains its evolution since deregulation in 1981 until today. It explores non-bank financial entities (including managed investment schemes and superannuation funds), which largely have not been examined in the recent Banking Royal Commission and other inquiries.

The author quantifies and explains the causes of systemic and cyclical failure of the law in the sector, bringing together the various sources of law applicable to the various types of legal entity, and also explains the difficulties and choices faced by directors and trustees of these entities. In doing so, he positions current regulation in the business context.

CRIMINAL PROCEDURE IN AUSTRALIA

A Hemming, F Feld & T Anthony 2nd ed LexisNexis Butterworths 2019 PB $131.00

Abstract from LexisNexis This book provides a comprehensive analysis of the law relating to policing, criminal prosecutions, pre-trial and trial issues, sentencing and criminal appeals. The book is unique in its breadth and depth of coverage of the criminal procedural laws across Australia. It provides a unified and comprehensive analysis of the

law relating to policing, criminal prosecutions, pre-trial and trial issues, sentencing and criminal appeals. In addition, the book examines the extensive Commonwealth and state legislation and case law in the fields of police investigation and Crown prosecutorâ&#x20AC;&#x2122;s powers and duties across all jurisdictions.

JUSTICE IN TRIBUNALS

JRS Forbes 5th ed The Federation Press 2019

Abstract from Federation Press Justice in Tribunals, now in its 5th edition, deals with the law relating to quasi-judicial authorities of government, professions, sporting organisations, industrial, political and commercial associations and their supervision by the regular courts. By no means confined to general principles, it treats in detail due process before proceedings commence, urgent action, proper notice of issues to be decided, the right

to legal representation, procedure in hearings, the right to reasons, internal appeals and bias (actual and apprehended). It includes a chapter on Royal Commissions and commissions of inquiry, which, technically at least, do not determine legal rights and obligations. This edition refers to numerous judicial decisions since the 4th edition appeared in 2014, and many references to statutes have been updated.

February 2020 THE BULLETIN

41

LEGALSUPER

Putting Members’ Interests First Act ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

D

efault insurance cover for many young super fund members and people with low super account balances will be changed as of 1 April, 2020.

More changes are coming for the default insurance cover of young super fund members and members with low super balances under new laws passed by the Federal Parliament in September of this year.

The Treasury Laws Amendment (Putting Members’ Interests First) Act 20191 means that as of 1 April, 2020: • On joining a super fund, automatic insurance will no longer be provided to: ° People aged less than 25 years ° New accounts with a balance less than $6,000, and • Existing accounts with insurance and balances less than $6,000 on 1 November, 2019 will have that insurance cancelled – unless the member opts to retain the insurance cover by 1 April, 2020.

• A dangerous occupations exception may apply whereby members will remain “opted-into” insurance if the member’s occupation is in the riskiest quintile of Australian occupations or they are defined as an emergency services worker.

Currently, most new members joining a super fund are typically automatically provided death and total and permanent disability insurance. Some super funds also automatically provide members salary continuance insurance (or income protection).

Under the new laws, members aged under 25 with account balances less than $6,000 will only be provided insurance if they opt-in to the insurance offered by their super fund or take out insurance outside super.

BENEFITS OF THE CHANGES The key benefit of the changes is younger super fund members and members just starting to build their super savings will no longer have their balances reduced by insurance premiums (fees). As a result, they will more quickly build their super balance.

42 THE BULLETIN February 2020

A further potential benefit is the removal of insurance for younger members is appropriate given they are less likely to need the type of cover provided by death and total and permanent disability insurance.

POTENTIAL DOWNSIDES While there are views that younger members may be less likely to need insurance, these views may be open to question.

What cannot be questioned, however, is that deciding to not take out or continue with suitable levels and types of insurance carries with it some very real and possibly significant risks.

Any young super fund member or member with a low account balance with no insurance who suffers a misfortune will find themselves without the protections, supports and financial benefits provided by these types of policies.

Writing in the Australian Financial Review on 14 May, 2018, the Chief Executive of the Association of Superannuation Funds of Australia (ASFA), Dr Martin Fahy, said of the then proposed changes: “It will be the families and dependants of young Australians suffering misfortune who will be left to pick up the pieces if the measures pass.”2

THE BENEFITS OF TAKING OUT INSURANCE VIA YOUR SUPER FUND Young super fund members and members with low balances who want to take out insurance will need to actively choose between cover offered by their super fund or retail insurers.

In considering these options, keep in mind that premiums for insurance via your super fund, in most instances, will be lower compared to retail insurers as super funds can offer insurance on a “group” basis across many members.

Many super funds automatically accept you for cover without requiring a health check and you can vary the amount for which you are covered or cancel the cover entirely.

Taking out insurance via your super fund is usually easier and more convenient to manage. Insurance premiums are automatically deducted from your super account rather than your hip pocket.

Most super funds will also pass on the tax benefit of the deduction for premiums.

Automatic deduction of premiums ensures you avoid a time of crisis of not having cover as payment of premiums was overlooked.

NEXT STEPS Pursuant to the Treasury Laws Amendment (Putting Members’ Interests First) Act 2019, by 1 December, 2019 all super funds must write to members with a less than $6,000 balance as at 1 November, 2019, informing them any insurance they have via their super fund will be cancelled on 1 April, 2020 unless the member elects to opt-in and continue their cover.

The 1 April, 2020 date replaces an earlier proposed date for this (and the other changes covered in this column) of 1 October, 2019.

Super fund members who will be affected by these changes should contact their fund for more information.

Employers may also wish to contact their super fund to arrange a workplace visit to explain the changes to their staff.

This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision.

ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au. B Endnotes 1 See https://www.aph.gov.au/Parliamentary_ Business/Bills_Legislation/Bills_Search_Results/ Result?bId=r6331 2 See https://www.afr.com/opinion/columnists/ federal-budget-2018-changing-super-cover-meansless-insured-for-a-higher-price-20180513-h0zzwe

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GAZING IN THE GAZETTE

3 NOV 2019 – 2 JAN 2020 ACTS PROCLAIMED Liquor Licensing (Liquor Review) Amendment Act 2017 (No 49 of 2017) Commencement remaining provisions: 18 November 2019 Gazetted: 7 November 2019, Gazette No. 53 of 2019 Statutes Amendment (SACAT) Act 2019 (No 14 of 2019) Commencement Parts 2; 5; 9; 10; 13-15; 18; 27-30: 2 December 2019 Gazetted: 21 November 2019, Gazette No. 58 of 2019 Statutes Amendment (Vehicle Inspections and South Eastern Freeway Offences) Act 2017 (No 54 of 2017) Commencement ss 4; 5; 6; 9; 11: 21 November 2019 Gazetted: 21 November 2019, Gazette No. 58 of 2019 Legal Practitioners (Miscellaneous) Amendment Act 2019 (No 27 of 2019) Commencement except s5: 1 December 2019 Gazetted: 28 November 2019, Gazette No. 59 of 2019 Landscape South Australia Act 2019 (No 33 of 2019) Commencement except ss 8-10; 15(4)-(5); 16; 17; 25-33; 36-222; 224-241; 243; 244; 249; Schedules 2-4; 5, Parts 1-29; 5 clause 89(2)-(6); 5 clause (3)9-(6): 19 December 2019 Gazetted: 19 December 2019, Gazette No. 63 of 2019

ACTS ASSENTED TO Legislation (Fees) Act 2019, No. 30 of 2019— Gazetted: 7 November 2019, Gazette No. 53 of 2019

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

Landscape South Australia Act 2019, No. 33 of 2019 (repeals Natural Resources Management Act 2004) Gazetted: 21 November 2019, Gazette No. 58 of 2019 Controlled Substances (Youth Treatment Orders) Amendment Act 2019, No. 34 of 2019 Gazetted: 21 November 2019, Gazette No. 58 of 2019 Statutes Amendment and Repeal (Classification of Publications, Films and Computer Games) Act 2019, No. 35 of 2019 (amends Classification (Publications, Films and Computer Games) Act 1995 and Summary Offences Act 1953; repeals Classification of Theatrical Performances Act 1978) Gazetted: 5 December 2019, Gazette No. 60 of 2019 Criminal Law Consolidation (False or Misleading Information) Amendment Act 2019, No. 36 of 2019 Gazetted: 5 December 2019, Gazette No. 60 of 2019 Local Government (Administration of Councils) Amendment Act 2019, No. 37 of 2019 Gazetted: 5 December 2019, Gazette No. 60 of 2019 Land Tax (Miscellaneous) Amendment Act 2019, No. 38 of 2019 Gazetted: 5 December 2019, Gazette No. 60 of 2019 Statutes Amendment (South Eastern Freeway Offences) Act 2019, No. 39 of 2019 (amends Motor Vehicles Act 1959 and Road Traffic Act 1961) Gazetted: 6 December 2019, Gazette No. 61 of 2019

Crown Land Management (Section 78B Leases) Amendment Act 2019, No. 43 of 2019 Gazetted: 12 December 2019, Gazette No. 62 of 2019 Statutes Amendment (Gambling Regulation) Act 2019, No. 44 of 2019 (amends Authorised Betting Operations Act 2000, Casino Act 1997, Gaming Machines Act 1992, Liquor Licensing Act 1997, Problem Gambling Family Protection Orders Act 2004 and State Lotteries Act 1966) Gazetted: 12 December 2019, Gazette No. 62 of 2019 Supreme Court (Court of Appeal) Amendment Act 2019, No. 45 of 2019 Gazetted: 19 December 2019, Gazette No. 63 of 2019 Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019, No. 46 of 2019 Gazetted: 19 December 2019, Gazette No. 63 of 2019 Retail and Commercial Leases (Miscellaneous) Amendment Act 2019, No. 47 of 2019 (amends Retail and Commercial Leases Act 1995 and Landlord and Tenant Act 1936) Gazetted: 19 December 2019, Gazette No. 63 of 2019 Married Persons (Separate Legal Status) Act 2019, No. 48 of 2019 (amends Law of Property Act 1936) Gazetted: 19 December 2019, Gazette No. 63 of 2019 Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Act 2019, No. 49 of 2019 Gazetted: 19 December 2019, Gazette No. 63 of 2019

Surrogacy Act 2019, No. 31 of 2019— (amends Assisted Reproductive Treatment Act 1988, Births, Deaths and Marriages Registration Act 1996 and Family Relationships Act 1975) Gazetted: 7 November 2019, Gazette No. 53 of 2019

Architectural Practice (Continuing Professional Development) Amendment Act 2019, No. 40 of 2019 Gazetted: 12 December 2019, Gazette No. 62 of 2019

Land Acquisition (Miscellaneous) Amendment Act 2019, No. 50 of 2019 Gazetted: 19 December 2019, Gazette No. 63 of 2019

Lotteries Act 2019, No. 41 of 2019 Gazetted: 12 December 2019, Gazette No. 62 of 2019

APPOINTMENTS

Flinders University (Remuneration of Council Members) Amendment Act 2019, No. 32 of 2019 Gazetted: 21 November 2019, Gazette No. 58 of 2019

Gambling Administration Act 2019, No. 42 of 2019 Gazetted: 12 December 2019, Gazette No. 62 of 2019

44 THE BULLETIN February 2020

Director of Public Prosecutions for a term of 7 years commencing on 18 November 2019 and expiring on 17 November 2026 Adelaide, 14 November 2019 Martin Gerard Hinton QC

GAZING IN THE GAZETTE

Gazetted: 14 November 2019, Gazette No. 55 of 2019

Gazetted: 5 December 2019, Gazette No. 60 of 2019

Legal Services Commission Chairperson: from 20 January 2020 until 19 January 2023 Member: from 20 January 2020 until 19 January 2023 Jason Karas Member: from 1 December 2019 until 30 November 2022 Lucinda Kirsty Byers Debra Ann Contala Catherine Ann Nelson Jason Karas Gazetted: 21 November 2019, Gazette No. 58 of 2019

Licensing Court of South Australia Conferral of authority on District Court Judge From 3 February 2020 His Honour Judge Michael Robert Burnett Gazetted: 5 December 2019, Gazette No. 60 of 2019

Magistrates Court Judicial Registrar for a term of seven years commencing on 13 January 2020 and expiring on 12 January 2027 Melanie Kate Burton Gazetted: 21 November 2019, Gazette No. 58 of 2019 Magistrate of the Youth Court of South Australia for a term of 1 year Luke Anthony Davis Gazetted: 21 November 2019, Gazette No. 58 of 2019 Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South Australia from 10 December 2019 Joana Maria Fuller Gazetted: 5 December 2019, Gazette No. 60 of 2019 Licensing Court of South Australia Conferral of authority on District Court Judge from 10 December 2019 Her Honour Judge Joana Maria Fuller Gazetted: 5 December 2019, Gazette No. 60 of 2019 Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South Australia From 3 February 2020 Michael Robert Burnett, QC

Parole Board of South Australia Member: from 18 December 2019 until 17 December 2022 Eleanor Frances Nelson Belinda Jane Powell Nora Ann Bloor Garth Dodd Susan Joan MacDonald Deputy Member: from 18 December 2019 until 17 December 2022 Kevin John Hill (Deputy to Bloor) Presiding Member: from 18 December 2019 until 17 December 2022 Eleanor Frances Nelson First Deputy Presiding Member: from 18 December 2019 until 17 December 2022 Belinda Jane Powell Gazetted: 12 December 2019, Gazette No. 62 of 2019 Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South Australia from 20 January 2020 Ian Douglas Press Gazetted: 12 December 2019, Gazette No. 62 of 2019 Licensing Court of South Australia Conferral of authority on District Court Judge from 20 January 2020 His Honour Judge Ian Douglas Press Gazetted: 12 December 2019, Gazette No. 62 of 2019 South Australian Civil and Administrative Tribunal Deputy President for a term of five years commencing on 19 January 2020 and expiring on 18 January 2025 Barbara Ellen Johns Full-time Senior Member for a term of three years commencing on 19

January 2020 and expiring on 18 January 2023 Department of the Premier and Cabinet Jacqueline Mary Rugless Part-time Senior Member for a term of three years commencing on 19 January 2020 and expiring on 18 January 2023 Mark Alan Stevens Sessional Ordinary Member for a term commencing on 5 February 2020 and expiring on 15 March 2023 Kathleen Patricia McEvoy Gazetted: 19 December 2019, Gazette No. 63 of 2019 Magistrate on an auxiliary basis, for a period commencing on 19 January 2020 and expiring on 30 June 2020 Barbara Ellen Johns Gazetted: 19 December 2019, Gazette No. 63 of 2019

RULES Magistrates Court (Civil) Rules 2013 Amendment 27 Gazetted: 21 November 2019, Gazette No. 58 of 2019 Magistrates Court (Civil) Rules 2013 Amendment 28 Gazetted: 28 November 2019, Gazette No. 59 of 2019 Magistrates Court Rules 1992 Amendment 80 Gazetted: 12 December 2019, Gazette No. 62 of 2019

DISALLOWAL OF REGULATIONS Genetically Modified Crops Management Act 2004, No 220 of 2019 From 27 November 2019 Gazetted: 5 December 2019, Gazette No. 60 of 2019 Planning, Development and Infrastructure Act 2016, No 172 of 2019 From 4 December 2019 Gazetted: 12 December 2019, Gazette No. 62 of 2019

February 2020 THE BULLETIN

45

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Ben Cox & Associates PO Box 205, Marden, SA 5070 Phone: 0437 325 112 E: ben@bcafireforensics.com.au www.bcafireforensics.com.au

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

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

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

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

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

46 THE BULLETIN February 2020

CONSULTING ACTUARIES

LawCare

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

If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you.

Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year.

All information divulged to the LawCare counsellor is totally confidential.

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

Marita Bajinskis

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

matrimonial and de facto property settlements superannuation children’s issues

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