The Bulletin - Law Society of South Australia - February 2022

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 44 – ISSUE 1 – FEBRUARY 2022

IN THIS ISSUE

Parties respond to Society's key election issues Lawyers make their case for election commitments on justice issues

STATE ELECTION EDITION

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (1) LSB(SA). ISSN 1038-6777

CONTENTS STATE ELECTION EDITION

FEATURES & NEWS

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Parties respond to Law Society’s key election edition

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What’s the difference between 10 and 14? – By Brittany Armstrong

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24 Access to Justice: An investment with a good rate of return – By Zoe Lewis 26

Enhancing accountability and transparency in the law-making process – By Dr Sarah Moulds

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Vulnerable people need better legal protection in guardianship matters

By Jennifer Corkhill

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Building disputes need a more efficient resolution process

By Alex Lazarevich

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

J Stewart-Rattray J Marsh A Lazarevich M Tilmouth F Bell R Sandford Vacant Vacant

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

REGULAR COLUMNS

Gay law reform: how South Australia led the nation and English-speaking world – By Tim Reeves

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President’s Message

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From the Editor

Australian regulators crack down on companies promoting goods purported to prevent COVID-19

By Madi McCarthy & Mark Giddings

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Tax Files: Self-managed super funds: Beware on NALI – By Briony Hutchens

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Risk Watch: Culturally and Linguistically Diverse Clients: Ongoing Challenges for Lawyers (Part 2)

By Grant Feary

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Wellbeing & Resilience: Wellbeing Resolutions for 2022 By the Wellbeing & Resilience Committee

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Members on the Move

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Family Law Case Notes

By Craig Nichol & Keleigh Robinson

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Gazing in the Gazette Complied by Master Elizabeth Olsson

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Case Note: Deputy Commissioner of Taxation v Huang – By Stephanie Lo

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Opinion: A call to arms: Why we need to lift our pro bono contribution in SA – By Alice Rolls

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

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

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

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

PUBLISHER/ADVERTISER Boylen 3/288 Glen Osmond Road, Fullarton SA 5063 Phone: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

IN THIS ISSUE Covid still looms large, but other key issues should not be forgotten MICHAEL ESPOSITO, EDITOR

T

alk about a challenging start to the year! While many of us were able to get away over Christmas and see loved ones after months of separation, a number of people spent Christmas in isolation, recovering from Covid or trying to avoid it.

Somewhat encouragingly, the Omicron wave appears to be on a downward trend, and although this sinister disease may have more surprises in store, one can be forgiven for indulging in some cautious optimism that the worst is behind us.

New Law Society Justin Stewart-Rattray has spoken about wanting to help the legal profession bounce back from a couple of tough years due to the pandemic, and really build an atmosphere of camaraderie and support among the profession which will hopefully be facilitated by a return to more face-to-face gatherings.

Covid has of course been the primary focus of Governments, and the upcoming State election on 19 March is shaping up to be a referendum on how the incumbent party managed Covid.

One’s view on how the Government handled the pandemic will naturally be coloured by how they were personally affected, but from the Society’s view, it also

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highlighted some gaps in our emergency response legislation that need addressing.

The Society has highlighted this issue in its State Election submission sent to all SA political parties. But while Covid has commandeered much of the focus, the Society has urged parliament not to forget about other pressing legal issues, some of them long-standing, such as court and legal aid resourcing, and other issues such as privacy protection and addressing protracted building disputes The Society asked all parties, as well as independents, to respond to the submission, and those responses are published in full in this edition. This edition features several articles from practitioners that examine some of the Society's election issues and explain why those key asks are so important..

The Society thanks party representatives and independents for taking the time to provide considered responses to the Society’s key election issues.

We encourage you to read what our parliamentarians have to say about how they plan to address important legal issues in this State, and judge for yourself how their responses stack up. B

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DEATH OF DR DUNCAN 50 years since the tragedy that sparked gay law reform

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LORNA JANE COVID CLAIMS Retailer reprimanded for misleading marketing

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FROZEN ASSETS High Court confirms powers to make global freezing orders

PRESIDENT’S MESSAGE

Seeking opportunities for the profession to proposer JUSTIN STEWART-RATTRAY

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t is such an honour to follow in the footsteps of previous Presidents who I have always looked up to with awe. I will do my best to continue the work and traditions of those who have served before me.

I am delighted to assume the role after a long stint of 27 years in practice but relatively brief time on the Law Society Council and Executive.

But who doesn’t love a steep learning curve and working under pressure? It’s what we do every day as practitioners.

My ambition sitting on Council and now as the incoming President was and is to give back something to the profession. No set political goals, just a desire to ensure the profession in South Australia stays healthy and gets back firing again as we gradually emerge from the global pandemic – hopefully sooner rather than later.

The current Covid conditions have seen us change the way we work, live and serve Law Society Members. Working from home and being unable to travel for work or recreational purposes has taken its toll. We have become more accustomed to electronic meeting platforms and not seeing clients or the inside of the courtroom has become more of the norm rather than the exception. Whilst these experiences have not always been negative ones, dealing with change is difficult and they have required some adjustment, which has created its fair share of challenges.

My main objective is to support the profession as much as I can and enhance the reputation, prosperity and stability of the profession.

The pandemic has created significant personal and professional challenges over the past two years and I am keen to help guide the profession through these uncertain times. It’s time for the members of the profession to get back out there, prosper and interact again properly with clients, colleagues and other professionals alike. We’re all still in these uncertain times together. The wellbeing and resilience of our profession has been tested but has endured. We need to keep being mindful of the stresses of legal practice and look after each other accordingly.

One of my tasks this year, will be to persuade the pre and post-election politicians of the need to look after our profession and the legal rights of the general community, on key issues which we have recently released. I am keen to: 1. Increase work for South Australian lawyers through exploring networking opportunities and win back some work from various other professional sectors and interstate.

2. Reduce regulation on lawyers and law practices as small businesses, especially in what is still a pandemic recovery period, while maintaining the high professional standards that are essential to the proper functioning of the justice system.

3. Improve the public perception of the legal industry and highlight the many “good news” stories that the profession has to tell.

4. Strengthen the legal profession and justice system by lobbying for specific reforms and investment as highlighted in the Society’s Key Election Issues Document.

As we head into a State Election year, it is important that we maintain and build good relationships with all sides of politics, but remain strictly apolitical as we agitate for greater investment in the legal profession, increased access to justice, and a legislature that is consultative and makes laws that respect the rule of law and protect the integrity and independence of the justice system.

By way of update: • On 6 December 2021 the Law Society Council decided to adopt the new Legal Profession Conduct Rules that apply to the entire SA profession; • A CPD program on the Legal Profession Conduct Rules will delivered

by Ethics & Practice; • On 3 December the Professional Standards Council approved the new Professional Standards Scheme, which is awaiting approval by the Attorney General and will launch on 1 July 2022; and • The Society’s new Strategic plan for the Profession will be finalised at the Executive Retreat in February 2022. The Retreat sets aside a whole day for the Executive to discuss big picture issues, future plans and policies to support the profession, and approve the strategic plan. I look forward to implementing the strategic plan and informing Members of the outcomes of the Retreat.

I am keen to ensure the Members know the Society is responsive to their needs and I am always keen to hear the views of any member on any topic.

I am accessible and I look forward to working with members to represent their voice and stand up for the profession. B February 2022 THE BULLETIN

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ELECTION RESPONSES

PARTIES, INDEPENDENTS RESPOND TO SOCIETY’S KEY ELECTION ISSUES O

n 5 November, The Law Society released its Key Election Issues submission, and asked political parties, as well as independents, to respond to the submission ahead of the State Election on 19 March.

Responses were received from the Liberal Party, Labor, The Greens, SA Best, and independent MPs Sam Duluk and Frances Bedford. The responses have been published in this special State Election edition of the Bulletin.

The full version of the Society’s Key Election submission is available on the Society’s website. A summary of the Society’s key asks are:

EMERGENCY RESPONSE •

A full review of the Emergency Management Act, with a view to enacting legislation that specifically deals with responding to a pandemic and other prolonged emergency situations.

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victims of serious invasions of privacy to seek compensation.

New laws that require government agencies to safely manage personal data that has been collected for the purpose of Covid management.

• • •

LEGISLATIVE TRANSPARENCY & ACCOUNTABILITY

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Establishment of a Scrutiny of Bills and Delegated Legislation Committee in SA Parliament.

A review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation.

The implementation of a Parliamentary policy to ensure proper public consultation on all proposed legislation.

FAIRER COMPENSATION • • • •

WHISTLEBLOWER PROTECTION ACCESS TO JUSTICE • •

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• •

Increased funding to the Legal Services Commission.

Funding for legal representation for people subject to guardianship, medical treatment and residence orders who appear in the SACAT in first instance matters.

Increased and sustained funding for the Legal Services Commission Women’s Safety Service, Women’s Legal Service and other domestic violence support services.

Measures to ensure timely access to professional interpreters.

Publicly available assessments of legal need in SA, broken down into State and Commonwealth matters, to inform the allocation of State legal assistance funding.

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A consultative review of the Public Interest Disclosure Act 2018 (SA) in the wake of ICAC reforms to determine whether legislative amendment is necessary to return the Act’s original scope and operation.

• •

An increase in the age of criminal responsibility in South Australia from 10 to 14.

Securing the long-term future of the Reunification Court by entrenching it in legislation.

Greater resources and legislative reform ensure all young people under long-term guardianship of the State receive services and support to transition from care to independence.

COURT FUNDING PRIVACY PROTECTIONS •

The introduction of laws to allow

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•

A policy that requires the Government to publicly disclose the process by

An increase in compensation actually paid to victims of crime following a review into the current scheme.

Removal of victims of crime levies for young people.

A more transparent process for reviews of and changes to the workers’ compensation scheme.

The establishment of a process to ensure that any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary Review.

CRIMINAL JUSTICE REFORM •

YOUTH JUSTICE •

which court fees are determined and where the monies are allocated.

Lowering the overall cost of court trial and listing fees in the civil jurisdiction.

Elimination of court transcript fees.

Probate filing fees be set at a more equitable level.

Establishment of a building tribunal to resolve building disputes.

An increase in suitably qualified mediators within the court system.

• •

A full review into the scope and operation of the Spent Convictions Act 2009 (SA) with a view to developing a Bill to amend the Act. Funding to increase the capacity of rehabilitation courses within prisons.

The establishment of a formal process to give the DPP carriage of Major Indictable Matters from commencement of a matter, and adequate resources to enable the DPP to conduct such matters.

FIDELITY FUND •

Implementation of financial measures to halt the decline in the Fidelity Fund which do not involve further increases (beyond inflation adjustments) in the annual cost of Practising Certificates.

ELECTION RESPONSES

SA LIBERAL PARTY

FROM: Hon Rob Lucas MLC, Treasurer The Marshall Liberal Government acknowledges the Law Society for their engagement over the past four years and appreciates the opportunity to comment on matters of interest and concern to their members.

Within the portfolio of the AttorneyGeneral, significant reform has taken place — including structural changes such as the establishment of South Australia’s Court of Appeal, stronger legislative and policy responses for domestic violence prevention, signing up to the National Redress Scheme and associated reforms with respect to limitations, changes to sentencing discounts, and — at times — controversial social reforms. Throughout, the Government has listened and engaged with the advice of the profession in the development and implementation of policy.

EMERGENCY RESPONSE As COVID-19 moves from being a pandemic disease to being an endemic disease, the Government will consider how COVID and other such diseases in the future will be managed, including laws supporting the Government’s response.

The Government will instigate a review of the Emergency Management Act 2004 to ensure we are best placed to manage any future emergencies.

ACCESS TO JUSTICE The Government has already increased

funds to core legal assistance services.

On 1 July 2021, the Legal Services Commission (LSC) commenced the operation of the Disability Information and Legal Assistance (DILA) unit. The LSC receives funding of $150,000 per annum over three years from the AGD to deliver this service. This dedicated disability service is also available to those with mental and cognitive impairment and forms part of a broader Marshall Liberal Government policy to protect vulnerable South Australians and improve their access to justice.

In addition, the Government agreed to the final version of the Bilateral Schedule of National Legal Assistance Partnership 2020 — 2025, which will provide funding over 5 years for legal services that assist vulnerable South Australians. This includes an additional $37.741 million over that period to expand services for family law matters, domestic violence victim survivors, specific ATSILS programs, and further support for those with mental health conditions.

The Government has also significantly increased funding to the Aboriginal Legal Rights Movement (ALRM) to support programs delivering improved legal services to indigenous communities, including additional funding from the Federal Government during the COVID-19 pandemic to meet the anticipated increase in demand for services. The Federal Government has also provided additional funding for ALRM to operate a formal Custody Notification Service and we have put in place the necessary Regulations.

From 30 June 2021, the Government has committed $933,275 over four years for an Aboriginal Justice Advocacy Service. This service intends to address the legal needs of Aboriginal communities through policies that reduce incarceration rates, support rehabilitation and diversionary programs and the implementation of recommendations from the Royal Commission into Aboriginal Deaths in Custody.

Notably, the Premier also introduced legislation to enshrine an Aboriginal Voice to the Parliament.

The Government has also increased funding for support services for domestic violence victim survivors through initiatives such as hotlines, counselling, and assistance through the court process.

We have also recognised the long-term impacts of abuse and have offered financial assistance to help victim survivors secure long-term accommodation.

The Government committed $200,000 through the SPACE program to support early intervention, $1.66 million over 4 years to the 24/7 Domestic Violence Crisis line, $954,000 over three years to Yarrow Place for free counselling for victims of sexual violence, an additional $2 million for the establishment of the Women’s Domestic Violence Court Assistance Service, $1.86 million for the Stop It At The Start campaign, and removed the fees associated with domestic violence intervention order applications.

These initiatives are just a snapshot of the measures this Government has put in place to complement our legislative response to prevent domestic violence. We will continue to commit additional funding where necessary.

The Law Society has recommended funding legal representation for first instance matters before SACAT in respect of guardianship matters. This matter has already been addressed with the establishment of a dedicated disability legal service at the Legal Services Commission as discussed above, which commenced operation on 1 July 2021.

PRIVACY PROTECTIONS The Law Society rightly identifies privacy protections as a matter of importance, and, to that end, the Government has drafted legislation.

The Government tabled the Civil Liability (Serious Invasions of Privacy) Bill February 2022 THE BULLETIN

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ELECTION RESPONSES

2021 in the House of Assembly on 23 September 2021. The Bill provides a broad cause of action for serious invasions of privacy and is open for public consultation.

Privacy concerns will also be addressed in a review of the Emergency Management Act 2004, particularly in respect of the recent use of QR codes to assist with contact tracing efforts for COVID-19.

The deletion of QR code data is currently mandated by a Direction issued by the State Coordinator.

YOUTH JUSTICE On 12 November 2021, at the Meeting of Attorneys-General, the Government was pleased to support the motion for State Attorneys-General to develop a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements.

The Government has already provided its support for diversion programs to reduce the number of young people in detention. These measures have already resulted in a reduction of young people aged 10 to 17 years of age detained at Kurlana Tapa of, on average, 45 young people in the 2017 June quarter to 22 in the 2021 June quarter (the most recently published data).

In addition, the Government is working with Indigenous communities via the Aboriginal Justice Advocacy Service to reduce Aboriginal detention rates. The Government will consider the use of such programs for all youth offenders.

Due to the success of the Reunification Court in practice, the Government will consider how else it could be supported, including by recognising it in legislation.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY The Government notes the recent report of the Select Committee on the Effectiveness of the Current System of Parliamentary Committees, and agrees with its recommendations, including the establishment of a Scrutiny of Bills and Delegated Legislation Committee.

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Consultation on proposed legislation is an integral part of lawmaking to ensure it best meets its objectives and has broad support. The Government thanks the Law Society for its active participation in these processes, and the Government will consider what further measures could be adopted to support formal consultation.

WHISTLEBLOWER PROTECTION The Government is committed to keeping laws up to date and relevant.

Following the recent passage of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021, the Government will review associated legislation and regulations to ensure consistency.

COURT FUNDING The Government notes the Society’s requests and concerns in respect of the operational fees of the courts, and will consider these fees in the next Budget.

FAIRER COMPENSATION The Government has significantly reduced the Victim of Crime Levy applying to young people under 18 years of age. From 1 July 2022, for expiated offences, the Victims of Crime Levy will reduce from $92 to $20 and from $245 to $40 for summary offences.

CRIMINAL JUSTICE REFORM The Government supports a review of the Spent Convictions Act 2009.

The Government recently received the Barrett Review of the Major Indictable Reforms Offences, which made no recommendations for legislative, regulatory, or administrative action in light of administrative reforms the Director of Public Prosecutions has already undertaken that have the support of stakeholders. The Government will continue to monitor court timeframes.

FIDELITY FUND The Government notes the Society’s acknowledgement of the previous Government’s failure to address the

declining balance of the Fidelity Fund, measures taken by this Government to date, and the recent actuarial work commissioned by the Society. The Government looks forward to receiving recommendations from the Society beyond increasing the cost of practising certificate fees.

SA LABOR

FROM: Hon Kyam Maher MLC, Shadow Attorney General

SA Labor has reviewed your submission and I take this opportunity to commend you on the positive and considered policy ideas you have suggested. These and other submission will undoubtedly influence our thinking if Labor forms the next State Government.

The coming election will be like no other in living memory – conducted in the shadow of the ongoing COVID-19 pandemic. South Australians will be looking to what the major parties say about the economic and health response to the pandemic and that will be a major focus of SA Labor.

Over the coming months, Labor will release our plan for the future of South Australia. Our policies on health, jobs, education and the environment will outline a clear path forward. Key law and justice focuses for Labor include community safety, victim support and the over representation of Aboriginal people in the legal system.

I will ensure that you are advised of any policy announcements that relate directly to the Law Society. In the meantime, if you would like details of our announced policies, they can be accessed at www.petermalinauskas.com. au/news/policies.

ELECTION RESPONSES

SA BEST LEFT: Hon Connie Bonaros MLC & RIGHT: Hon Frank Pangallo MLC

EMERGENCY RESPONSE A full review of the Emergency Management Act 2004, with a view to enacting legislation that specifically deals with responding to pandemics and other prolonged emergency situations.

Strongly Supported This is very timely given the COVID-19 pandemic and possible future extreme or crisis events.

It is important South Australians are clear on when an emergency is declared and the scope and extent of the powers that exist within any legislation.

SA-BEST agrees with the LSSA that the Emergency Management Act 2004 was only ever intended for bushfires, cyclones and or other similar catastrophic events like earthquakes - not an international pandemic like the COVID-19 outbreak!

At the outset, SA-BEST supports in principle the notion of declarations that place decision­making powers in the hands of an impartial, apolitical third party, based on expert advice.

As the LSSA would be aware, in March 2020 as a result of the global COVID-19 pandemic, the South Australian Parliament passed the COVID-19 Emergency Response Act 2020 (‘the Act’) which made various temporary modifications to the Emergency Management Act 2004, the South Australian Public Health Act 2001 and the Payroll Tax Act 2009.

The temporary modifications or emergency measures which were accompanied by regulations - were aimed at dealing specifically with the current pandemic and, at the insistence of the crossbench and Opposition, were subject to regular review by the Parliament.

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The Act has been amended from time to time with some provisions ceasing to operate as no longer required. The last of those powers ceased to have effect in December 2021.

Prior to their expiration, the Government indicated it would consider and introduce legislation aimed specifically at dealing with pandemics and the current COVID-19 pandemic. This did not eventuate.

It is worth noting at the time the changes were introduced, the Social Development Committee was in the process of undertaking a statutory review into the South Australian Public Health Act 2001. Given the pandemic was still in its infancy at the time, the Committee resolved not to hear evidence on the amendments.

However, the final report of the Committee did recommend all changes associated with the COVID-19 pandemic be considered for review by the Social Development Committee.

SA-BEST strongly supports this next step although it considers the review may be required prior to the expiration of the current state of emergency declaration.

It is clear the Emergency Management Act 2004 was never intended for longterm pandemics.

It is our understanding the Government has taken the view the existing legislation is sufficient to rely on throughout the COVID-19 pandemic, and to date, this has not been challenged in any meaningful way.

Notwithstanding either of these two factors, SA-BEST maintains there is a very clear need for separate dedicated legislation to deal with pandemics particularly when they are protracted in nature.

SA-BEST is particularly focused on there being sufficient transparency, accountability, oversight and review mechanisms incorporated in any future legislation.

ACCESS TO JUSTICE More funding to LSC to a level that enables the Commission to fund legal aid to all those below or at the poverty line.

Strongly supported Funding for legal representation for people subject to guardianship, medical treatment and residence orders, who appear at SACAT in 1st instance matters.

Strongly supported

Increased and sustained funding for LSC, Women’s Safety Service, Women’s Legal Service, and other service providers that support survivors of domestic violence to understand and safely access legal processes and tools relating to domestic violence.

Strongly supported Measures to ensure timely access to professional interpreters for applicants, protected persons and defendants from non-English speaking backgrounds.

Strongly supported - especially for Aboriginal and Torres Strait languages, and languages of disadvantaged, oppressed, minority and newly arrived migrant groups.

Publicly available assessments of legal need in South Australia, broken down into State and Commonwealth matters, to inform the a/location of State funding to the LSC, Community Legal Centres and ALRM. Strongly supported. Public funding of all provided legal services should be publicly available and disclosed.

PRIVACY PROTECTIONS The introduction of laws to allow victims of serious invasions of privacy to seek compensation.

Strongly supported New laws that require Government agencies to safely manage personal data that has been collected for the purpose of Covid management, including deleting contact tracing data after 28 days.

Strongly supported As a general comment, SA-BEST wants the State Government to substantially improve and safely manage all personal data security, including for the purpose of COVID-19 management.

Recent data breaches of the personnel records of over 80,000 State Public Servants illustrated the need to vastly improve data security across the board.

SA-BEST strongly supports deleting contact tracing data after 28 days, including there being very strong laws about sharing, storing, using and destroying backups of data for COVID-19 tracing and other purposes.

There should be no doubt the data can only be used by relevant agencies and strictly for the purposes of COVID-19 management.

ELECTION RESPONSES

YOUTH JUSTICE An increase in the age of criminal responsibility in SA from 10 to 14 years.

In principle support Increasing the age of criminal responsibility to 14 years is consistent with the position of the United Nations Committee on the Rights of the Child.

The age of criminal responsibility is meant to reflect the age at which a child is able to understand their actions are wrong and they may face criminal charges as a result of such actions as well as the consequences of those actions.

It is universally acknowledged children aged 10 or even 12 or 13 simply do not possess that cognitive function. This is evidenced by the fact that like many other parts of the world, Australia does not allow children in these age groups to vote, gain access to a motor vehicle licence, smoke or consume alcohol, among other activities.

In Australia, Aboriginal and Torres Strait Islander children aged between 10 and 14 years make up almost two thirds of children in that age group in juvenile detention. There is no question this issue impacts our most disadvantaged and vulnerable community members more than any other group. It also serves to perpetuate generational cycles of disadvantage.

It is important to note there are considerable developments nationally to increase the age of criminal responsibility to 12 years.

At a recent COAG meeting, state Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements .

The Northern Territory committed to raising the age of criminal responsibility to 12 based on the recommendations of the Royal Commission into the Protection and Detention of Children in the NT in 2017 but has yet to act on that commitment.

The Australian Capital Territory has signalled its intention to introduce legislation to raise the age to 14 this year following a Review of the Service System and Implementation Requirements for

Raising the Minimum Age of Criminal Responsibility in the ACT in 2021.

In principle, SA-BEST supports the adoption of a nationally consistent approach where appropriate, based on all available evidence. In this instance, we note the national approach falls well short of the model approach which has the overwhelming support of industry experts and stakeholder groups.

SA-BEST calls on the State Government to undertake comprehensive consultations and to work collaboratively with stakeholders - including service providers and staff in corrections settings, experts and researchers - on this issue to develop nationally consistent legislation consistent with the model approach.

We are being constantly made aware of grave concerns of parents, family, child protection workers, counsellors, youth training officers, courts, lawyers, the Legal Guardian and the Commissioners for Children and Young People about the failures of the juvenile justice system.

There must be a focus away from detention, and a renewed focus on providing more appropriate and more readily available support services and programs (including voluntary and mandatory drug rehabilitation programs), diversionary programs, educational programs and living resources for children and young people who are at risk of, or who have engaged with, the criminal justice system.

There needs to be a genuine and appropriately resourced focus on breaking cycles and generations of disadvantage.

Increasing the age of criminal responsibility does not equate to a “soft on crime” attitude towards minors who offend.

As highlighted above, it does however perpetuate those cycles of disadvantage that are almost guaranteed to see our most disadvantaged and vulnerable community members stay in the criminal justice system well beyond their teens, if not their entire adulthood. It perpetuates social disadvantage, poverty and physical and mental health problems.

SA-BEST is of the strong view the South Australian Parliament cannot defer consideration of this issue indefinitely and notes some jurisdictions are already taking

proactive steps to implement their own legislation.

As stated at the outset, national consistency is the preferred option. In the absence of national consistency and consensus, SA-BEST will continue to support legislation increasing the age of criminal responsibility at a state level consistent with the model approach.

Securing the long-term future of the Reunification Court by entrenching it in legislation.

Strongly supported SA-BEST’s policies around child protection and reunification are premised on the best interests of the child and the paramountcy principle.

In many instances, the removal of a child from their family is the only suitable option in the best interests of the child.

That said, removal - especially permanent removal - should be deemed a choice of last resort.

As of October 2021, there were 4646 children in state care - an increase of 300 compared to the previous year. The year before had similar results. There has also been an increase in applications for 18year orders particularly as they relate to indigenous children.

It is little surprise then that the Commissioner for Aboriginal Children and Young People has signalled her intent to conduct an inquiry into these growing numbers.

SA-BEST is increasingly concerned at the growing number of children in state care, the increase in 18-year order applications and the complete lack of “wrap around” services and support services provided to vulnerable families, particularly indigenous families.

SA-BEST supports a stronger focus on family reunification where appropriate and also calls for family reunification models to be further developed (particularly for indigenous families) and implemented in SA as part of a “root and branch” reform of the child protection system in South Australia.

SA-BEST is committed to working closely with our indigenous communities to ensure their concerns around the need for reunification and the importance of family and culture are understood and are central to any such root and branch reviews.

February 2022 THE BULLETIN

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ELECTION RESPONSES

SA-BEST also remains committed to prescribing in legislation the Aboriginal placement principles and ensuring they are adhered to.

SA-BEST is opposed to the Liberal Government’s policy of making the adoption process easier when it comes to children in state care, as proposed in its most recent legislative agenda, especially given the recent spike and increasing numbers of applications for 18-year orders.

Greater resources to ensure all young people under long term guardianship of the State receive services and support to transitions from care to independence.

Strongly supported Such resources should include educational support for post-secondary fees and costs, housing and counselling for children who have often been deprived of life skills that might have been attained but for their removal from their families and therefore require higher levels of supports than their peers.

Legislative reform to enable the Minister for Child Protection to provide reliable support for young people in State care until 25 years.

Strongly supported As above, including educational support for post-secondary fees and costs, housing and counselling, but also tailored supports according to need, and provided when and where needed.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY Establishment of a Scrutiny of Bills and Delegated Legislation Committee in the SA Parliament.

Strongly supported SA-BEST notes there is a report by the South Australian Parliament’s Effectiveness of the Current System of Parliamentary Committees Committee initiated and chaired by Connie Bonaros - that is highly relevant to this issue.

The report produced in August 2021 had the unanimous and bipartisan support of all Members of Parliament.

South Australia is the only jurisdiction that doesn’t have a scrutiny of bills committee.

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The Inquiry highlighted the need for a new approach to parliamentary committees to ensure an effective and more efficient accountability and scrutiny mechanism. The consultation and comparison with other jurisdictions highlighted a lack of committee scrutiny over Bills to assist the Parliament in its debate and ultimate legislative outcomes for the people of South Australia.

SA is currently the only bicameral Australian mainland Parliament without a Scrutiny of Bills/legislation committee, with academics, stakeholders and members of the community seeking the Parliament to provide more opportunities for engagement with the lawmakers of this State.

The State Parliament’s approach to scrutinising the Budget Estimates process was also compared with the other jurisdictions , with the Committee noting it as the only bicameral jurisdiction not involving its Upper House members in this scrutiny process.

The Committee considered it prudent to bring SA in line with accepted practices seen in all other jurisdictions . This extended to appropriate staffing and resourcing practices and processes.

Currently, the only Committee with a scrutiny role is the Legislative Review Committee. South Australia is well overdue for reform in this area.

The findings and recommendations of the report comprehensively canvassed these important issues. Please find a copy attached to this document.

Importantly , a Bill is currently under development which seeks to overhaul South Australia’s committee structure in line with other jurisdictions , including the Federal Parliament.

These reforms include the establishment of a Scrutiny of Bills and Delegated Legislation Committee as well as changes to the existing Legislative Review Committee and a number of other important changes outlined in the report.

Connie has served on the Legislative Review Committee since becoming a Member of Parliament.

In 2021, that Committee undertook a review into its functions and workload.

Connie submitted a Minority Report

highlighting a number of concerns around the Committee’s processes and core functions. Among those concerns was the fact that delegated legislative instruments have become the primary form of lawmaking In 2020 alone, a total of some 514 pieces of legislation were enacted. Of those, 45 enactments were primary legislation enacted by the Parliament while the remaining 469 instruments were delegated instruments reviewed by the Committee.

Putting aside questions of the overreliance on delegated legislation in our lawmaking, this raises serious issues around appropriate levels of transparency and scrutiny - the core functions of the Committee.

The ever-increasing volume and the complexity of work of the Committee means there is not adequate time assigned to properly review the subordinate legislation before the Committee, let alone undertake its new role of inquiring into petitions, adequately and effectively.

The time allocated for the Committee is also not commensurate with the level of work and scrutiny that is required.

The inherent risk in the Committee’s current practice and time restraints is that despite its best intentions, issues of significance could easily be overlooked.

From an accountability perspective, this simply is not acceptable. Similarly, working under the current time and resourcing constraints is not feasible for staff and Members alike.

Connie highlighted the makeup of the Committee does not promote a multi-partisan approach to the review and scrutiny work of the Committee.

Indeed, it has become common practice for successive Chairs of the Committee to exercise their casting vote to wave through legislative instruments that clearly don’t meet the scrutiny expectations of at least half of the Committee Members.

The lack of appropriate reporting on the work of the Committee means other Members of Parliament are not alerted to these contentious votes.

Even more concerning, over the past 20 odd years, successive State Governments of all persuasions have

ELECTION RESPONSES

bypassed regulations by using by-laws, codes, and guidelines which involve no oversight other than governmentcontrolled Committee processes.

In terms of transparency and accountability, Connie’s Minority Report highlighted the Committee requires government agencies to provide a report accompanying the subordinate legislation reviewed by the Committee.

The departments and agencies who report to the Committee are meant to demonstrate they have considered the scrutiny requirements . One of the greatest abuses in reports is the absence of information relating to any consultation the department and agencies have undertaken in drafting those regulations.

The Committee’s difficulty in obtaining information relevant to proposed subordinate legislation can often prevent proper scrutiny by the Committee, thereby creating additional work and ultimately making the Committee’s deliberations partisan in nature.

These matters were also canvassed extensively by expert witnesses appearing before the subsequent inquiry undertaken by the Select Committee into the Effectiveness of the Current System of Parliamentary Committees, instigated by SA-BEST. The draft legislation to be considered by the next Parliament is aimed directly with these very important issues.

See also, above response to the next three dot points.

Review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. Strongly supported (See above response).

and recommendations of the Committee, will also form part of the Bill currently under development.

SA-BEST has been an outspoken advocate to improve transparency and accountability of government. We have repeatedly pointed out almost 90% of all laws passed in SA are done via regulation, and that this provides for very limited oversight.

Implementation of a parliamentary policy to ensure proper public consultation within an agreed framework in relation to timeframes and processes of consultation.

Strongly supported

Proper resourcing of committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these committees can undertake meaningful and robust reviews of proposed legislation.

Strongly supported

WHISTLEBLOWER PROTECTION

This issue was canvassed extensively in the final report of the Effectiveness of the Current System of Parliamentary Committees Committee. Those recommendations that do not require legislative change are already under consideration. Changes to the resourcing of committees, in line with the findings

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Successive governments have long used ‘Cabinet in confidence’ as a means of preventing access to submissions and consultation processes which go to the heart of important legislative reform.

The same mechanism has also been used to prevent committees from accessing submissions and feedback pertinent to their consideration of subordinate legislation, amongst other things.

During Parliamentary debates, it has become common practice for MPs to seek out the information they require from stakeholders who have contributed to public consultation processes, via their own requests because they are unable to access it via the government, on the basis that it is confidential.

This is neither feasible nor practical and often results both in unnecessary delays and unsound outcomes. The implementation of any policy needs to ensure all of these issues are appropriately addressed.

See also, above responses.

A review of the Public Interest Disclosure Act 2018, in the wake of ICAC reform with a view to determining whether legislative amendment is necessary to return the Act’s scope and vision.

SA-BEST notes there is a review mechanism under the ICAC amendments recently passed but agrees a full review of the Public Interest Disclosure Act 2018 would be worthwhile, after some three years of operation of the Act. SA-BEST notes the need to also review protections for journalists and public servants under whistleblower legislation.

Full and proper disclosure and consultation with the community as to any permanent changes to the Public Interest Disclosure Act 2018 and the consequences for those in the public sector.

Strongly Supported

COURT FUNDING A policy that requires the Government to publicly disclose the process by which Court fees are determined and where the monies are allocated.

Strongly supported In addition, SA-BEST calls for a review of funding provided to all courts with a particular focus on better resourcing the Coroner’s Court jurisdiction.

Lowering the overall cost of court trial and listing fees in the civil jurisdiction.

Strongly supported A review of fees in South Australia by comparison with other jurisdictions including the Federal Court system would also be most worthwhile.

Elimination of court transcript fees.

Strongly supported - especially where available and able to be provided electronically.

Probate filing fees to be set at a more equitable level, by either setting a flat fee or setting fees according to the net value of an asset.

Strongly supported Establishment of a building tribunal to resolve building disputes.

Strongly supported SA-BEST’s predecessors were instrumental in the passage of security of payment legislation in this jurisdiction. Since then, SA-BEST has continued to look for improvements in resolution mechanisms and consulted with the equivalent bodies in other jurisdictions - including Queensland - in response to high levels of complaints and disputes regarding building works. A new tribunal or body must be independent of industry and government, with its own legislation, staffing, resourcing, compliance and enforcement.

An increase in funding for suitably qualified mediators within the court system.

Strongly supported

FAIRER COMPENSATION An increase in compensation actually paid to victims of crime following a review into the current

ELECTION RESPONSES

scheme, including its formula for determining compensation.

Strongly supported SA-BEST believes there should be a full review of the Victims of Crime Act 2001 including the levies and eligibility criteria for victims of crime to streamline and tailor payments that better reflect the level of harm caused to victims of crime.

SA-BEST supports, in principle, the establishment of an independent tribunal to a consideration of any review.

A tribunal would consider the circumstances of each victim’s claims in detail, being able to call on expert advice or assistance as needed .

Although maximum payments to victims have increased, SA-BEST is aware of many cases where these have been inadequate or unfair.

There should also be a full review of the administration and allocation of criminal assets confiscation funds.

SA-BEST believes proceeds of crime funds should be directed to rehabilitation services and education programs, as per the original legislation and subsequent agreements. These funds should not be treated as general revenue or to prop up funding of the state’s judicial system.

Removal of victims of crime levies for young people.

Strongly supported SA-BEST strongly supports waiving fees for Intervention Orders but notes the need to ensure the focus of any relevant legislation is on victims and does not create a perverse outcome whereby perpetrators can more easily apply for variations to current Intervention Orders to further traumatise and control their victims.

A more transparent process for review of and changes to the workers compensation scheme.

Strongly supported SA-BEST strongly supports the reversal of the most recent government decision which enables the Minister for Industrial Relations to change threshold guidelines well above what was ever anticipated, and without any Parliamentary oversight.

The establishment of a process to ensure any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary review.

Strongly supported.

SA-BEST believes these provisions need to be legislated and not just guidelines that can be easily changed without scrutiny.

See also above, comment on the Legislative Review Committee’s report.

CRIMINAL JUSTICE REFORM A full review involving community and stakeholder consultation as to the scope and operation of the Spent Convictions Act 2009 with a view to developing a Bill to amend the Act. Strongly supported Funding to increase the capacity of rehabilitation courses within prisons to ensure prisoners have the opportunity to participate in relevant courses to rehabilitate and be considered for parole.

Strongly supported See above, SA-BEST calls for proceeds of asset confiscation to be directed to this area as originally agreed.

The establishment of a formal process to give the Office of the Director of Public Prosecutions carriage of Major lndictable matters from commencement of a matter and adequate resources to enable the DPP to conduct such matters.

Strongly supported The Crime and Public Integrity Policy Committee has repeatedly heard of difficulties and failed prosecutions, arising through lack of clarity regarding which agency has responsibility for what matters.

SA-BEST notes this lack of clear responsibility and accountability has severely disadvantaged victims.

FIDELITY FUND Implementation of financial measures to halt the decline in the Fidelity Fund, which do not involve further increases (beyond inflation adjustments) in the annual cost of practising certificates.

Strongly supported.

Other Justice/Legal Profession reforms proposed and or supported

by SA-BEST: SA-BEST will be calling for a full review and reform of the SA Parole Board, including the Correctional Services Act 1982 provisions covering the Parole Board, and other related Acts relevant to the eligibility, granting and declining of parole for prisoners. It considers the South Australian Law Reform Institute (SALRI) is best placed to undertake a review and recommend legislative change.

SA-BEST also advocates for a review of the operation and conduct of the Legal Practitioners Conduct Commission.

In 2020, SA-BEST successfully moved a motion calling for an independent review into harassment in the legal profession.

The report of the Review of Harassment in the South Australian Legal Profession was finalised in April 2021. It made 16 recommendations aimed at supporting the development of safe and inclusive workplaces in the legal profession.

SA-BEST will continue to call for the full implementation of the recommendations made by the Equal Opportunity Commissioner as part of that review.

SA-BEST strongly supports the Commissioner’s recommendations requiring legislative change and calls on the Law Society and the judiciary to ensure all such legislative changes are supported and endorsed by those bodies.

It also calls on the Law Society and the judiciary to continue to work towards implementing such other changes as recommended by the Commissioner (that do not require legislative change) in a timely manner.

THE GREENS

RESPONSE FROM: Hon Robert Simms MLC

EMERGENCY MANAGEMENT ACT Law Society Key Ask: A full review of the Emergency Management Act 2004, with a view to enacting legislation that specifically deals with responding to pandemics and other prolonged emergency situations.

The Greens: Agree. South Australia has faced unprecedented challenges over the COVID-19 pandemic. Future emergencies are not unimaginable, be they resulting from climate change, future pandemics or other as of yet unknown causes. While our band-aid solution has been reasonably February 2022 THE BULLETIN

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adequate thus far, it has highlighted the need for future proofing. We support a full review of the existing legislation, particularly with a view to having stronger oversight and accountability mechanisms.

ACCESS TO JUSTICE Law Society Key Asks: • Increased funding to the Legal Services Commission to a level that, at the very least, enables the Commission to fund legal aid matters for all those below or on the poverty line.

• Funding to ensure families in care and protection matters have access to legal representation.

• Funding for the provision of legal representation for people subject to guardianship, medical treatment and residence orders who appear in the SACAT in first instance matters.

• Increased and sustained funding for the Legal Services Commission Women’s Safety Service, Women’s Legal Service and other service providers that support survivors of domestic violence to understand and safely access legal processes and tools relating to domestic violence.

• Measures to ensure timely access to professional interpreters for applicants, protected persons and defendants from non- English speaking backgrounds.

• Publicly available assessments of legal need in SA, broken down into State and Commonwealth matters, to inform the allocation of State funding to the Legal Services Commission, Community Legal Centres, and the Aboriginal Legal Rights Movement.

The Greens: Agree. Access to justice is pivotal in the operation of an equal and just society. The continued gutting of legal aid has served to disadvantage the most vulnerable members of our society.

We support an increase of the budget of these legal services to adequately assist people in need.

PRIVACY PROTECTIONS Law Society Key Asks • The introduction of laws to allow

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•

victims of serious invasions of privacy to seek compensation.

New laws that require government agencies to safely manage personal data that has been collected for the purpose of Covid management, including deleting contract tracing data after 28 days.

The Greens: Agree. The unprecedented data collection that has occurred as a result of the COVID-19 Pandemic must be addressed. We must legislate to protect people from the mismanagement of this data. Contact tracing data can have no real value to COVID management efforts after 28 days.

We also support the proposal to allow for a right to seek compensation over any serious harm suffered from an invasion of privacy.

young people to age 25. Living in state care can already be a traumatic experience, especially if a child is moved to various homes within their time in the system.

But by extending the support to young people until they turn 25 (Greens policy is to extend financial support until at least 21), children who have faced difficult times already in their short lives can have the chance to stay at home and receive support to pursue tertiary study, be guided by people who can help them see their way through those formative years of adulthood and leave to live independently when they are ready.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY

Law Society Key Asks: • An increase in the age of criminal responsibility in South Australia from 10 to 14.

• Securing the long-term future of the Reunification Court by entrenching it in legislation.

• Greater resources to ensure all young people under long-term guardianship of the State receive services and support to transition from care to independence.

• Legislative reform to enable the Minister for Child Protection to provide reliable support for young people who have been in State care until they reach 25 years of age.

Law Society Key Asks: • Establishment of a Scrutiny of Bills and Delegated Legislation Committee in SA Parliament.

• A review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. • Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these Committees can undertake meaningful and robust reviews proposed legislation.

• The implementation of a Parliamentary policy to ensure proper public consultation on all proposed legislation that also establishes an agreed framework in relation to timeframes and processes of consultation.

The Greens: Agree. It is an international disgrace that we allow for children as young as 10 to be incarcerated. We are wholeheartedly in favour of raising the age of criminal consent to 14. The Greens have tabled legislation for this very purpose, and we are committed to reintroducing it in the new Parliament. Providing proper support to young people who have been in state care, and supporting their transition to independence is also essential to the development and health of the young people in these situations. The Greens absolutely support extending support for

The Greens: Agree. Legislative Review is an important tool in ensuring our laws adhere to the principles of justice and fairness that our democracy is founded on, and requires proper funding. We broadly support the recommendations made by the LSSA with regards to legislative transparency and accountability.

The Greens have participated in the Select Committee inquiry into the effectiveness of Committees of SA Parliament, and fully support its recommendations – including the establishment of a Scrutiny of Bills and

YOUTH JUSTICE

ELECTION RESPONSES

Delegated Legislation Committee. The recommendations of the committee further outline changes to ensure proper resourcing for Committees, which we support.

WHISTLEBLOWER PROTECTION Law Society Key Asks: • A review of the Public Interest Disclosure Act 2018 in the wake of ICAC reforms with a view to determining whether legislative amendment is necessary to return the Act’s original scope and operation.

• Full and proper disclosure and consultation with the community as to any permanent changes to the Public Interest Disclosure Act 2018 and their consequences for those in the public sector.

The Greens: Agree. Acts of corruption and maladministration should not receive unintended protection and we fully support a review of the Public Interest Disclosure Act. We have always been proponents of proper public consultation, and would support consultation and disclosure with the community to any further changes to the act.

COURT FUNDING Law Society Key Asks: • A policy that requires the Government to publicly disclose the process by which court fees are determined and where the monies are allocated.

• Lowering the overall cost of court trial and listing fees in the civil jurisdiction.

• Elimination of court transcript fees.

• Probate filing fees be set at a more equitable level, by either setting a flat fee or setting fees according to the net value of an asset.

• Establishment of a building tribunal to resolve building disputes.

• An increase in funding for suitably qualified mediators within the court system.

The Greens: Agree. Access to the state’s justice system should not be prohibitive, and there is much that could be done to ease the barriers to accessibility and timely justice.

FAIRER COMPENSATION Law Society Key Asks: • An increase in compensation actually paid to victims of crime following a review into the current scheme, including its formula for determining compensation.

• Removal of victims of crime levies for young people.

• A more transparent process for reviews of and changes to the workers’ compensation scheme.

• The establishment of a process to ensure that any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary Review The Greens: Agree. We support a review into the existing workers’ compensation scheme. With recent decisions made in the courts that will alter the law surrounding workers’ compensation, it is important that the existing scheme is fair and equitable.

We support an increase to the Victims of Crime compensation. There should be no reason to increase levies without a view to increasing payments. We also strongly agree with the removal of victims of crime levies for young people.

CRIMINAL JUSTICE REFORM Law Society Key Asks: • A full review involving community and stakeholder consultation as to the scope and operation of the Spent Convictions Act 2009 with a view to developing a Bill to amend the Act. • Funding to increase the capacity of rehabilitation courses within prisons to ensure prisoners have the opportunity to take part in relevant courses to rehabilitate and be considered for parole.

• The establishment of a formal process to give the Office of the Director of Public Prosecutions carriage of Major Indictable Matters from commencement of a matter, and adequate resources to enable the DPP to conduct such matters.

The Greens: Agree. There are serious issues with our existing criminal justice

system. With an existing focus on punitive rather than restorative justice, we cannot expect large rates of rehabilitation. This in turn will inevitably lead to reoffending and further societal fracture.

FIDELITY FUND Law Society Key Asks Implementation of financial measures to halt the decline in the Fidelity Fund which do not involve further increases (beyond inflation adjustments) in the annual cost of Practising Certificates.

The Greens: We agree a functioning, stable Fidelity Fund is necessary for the protection of South Australians. We would support measures to halt its decline and improve its viability, without unnecessary impact to legal profession.

INDEPENDENTS

Hon Frances Bedford MP, State Member for Florey

EMERGENCY RESPONSE The COVID-19 pandemic in South Australia has raised many issues, restricted the lives of individuals and the processes implemented were not smooth or streamlined. Protocols and information have (and continue) to constantly change and many of my constituents have called the office for clarity and assistance. As you may be aware, I tried on multiple occasions to establish a COVID-19 Select Committee to investigate and find solutions to problems - from long wait times for testing and vaccinations, home quarantining and QR Code check-ins to better communication strategies among other things. Unfortunately, the motion failed in the House and with no further sitting days set, it is impossible to hold Government to account. I have also been February 2022 THE BULLETIN

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seeking another MP briefing (we have only ever had one!!) - again with no luck.

It is important a review of the Emergency Management Act 2004 occurs to ensure the powers within the legislation can adequately and effectively respond to a pandemic or other emergency. It must also incorporate a review system to ensure better planning and practices are put in place for the future.

PROTECTION OF PRIVACY This another key issue which has COVID-19 implications and has become more prominent during the pandemic.

With increased use of technology for communication and the use of COVID-19 QR Code Check-in system and Home Quarantine Program, many people have become more aware of the use of their personal information, and who has access to it.

Legislation should be reviewed to ensure privacy laws are adequate and provide protections and avenues to seek compensation for an invasion of privacy.

In light of the Auditor­General’s COVIDSafe Check-In Review Report, legislation should ensure Government agencies are safely using, collecting, storing, and disposing of personal information in the required timeframe.

A particular concern of mine is identity theft and its implications, so any increased protection of privacy should provide ancillary benefit to individuals’ security.

ACCESS TO JUSTICE Every individual - no matter their socio-economic status, legal issue, or ethnicity - should have representation.

Justice is denied without it. The Legal Services Commission, Community Legal Centres (Northern Community Legal Centre in particular) and Women’s Legal Services provide much needed legal support to South Australians and deal with an increased volume of legal issues beyond the available State funding.

Increased funding across all justice services is essential and would potentially fund legal aid matters for individuals living on or below the poverty line, victims of domestic

18 THE BULLETIN February 2022

or family violence, and individuals subject to guardianship matters. Research into the legal need of South Australians and Aboriginal people in particular, can ensure funding is supplied to reflect demand and a rationale for future funding. Professional interpreters for language translation and for interpreting the law and court appearances, should be provided in a timely manner to ensure individuals can fully understand the implications of their legal matter.

The Law Society’s support for legislation which seeks to criminalise domestic violence or coercive control and to ensure support avenues and services are available is commendable, and I concur must be “accompanied by a range of other measures directed to addressing domestic violence in the community”. As you would be aware, Parliament failed to pass legislation to enhance the legal processes around domestic violence before it rose in December. It is an important issue which is continually gaining public attention - imperative to drive cultural change. Sadly, the issue is not new rather one that needs continual comprehensive multi-faceted responses to ensure proper protections, processes and support mechanisms are in place.

COURT FUNDING Court fees continue to rise beyond affordability for most people.

The Government needs to apply itself more rigorously to its duty to ensure timely access to justice which is at a fair and reasonable cost to the person. Individuals must pay set fees and daily fees on top of the added costs of pursuing a claim - these fees are not always clear and transparent.

Most often cases before the Magistrates Court cost more than the amount in dispute. Any policy which involves implementation of a clearly defined fee structure would be supported as it can be more reflective of court costs for resources and planning for court staff, plaintiffs and defendants. I agree public disclosure of the process by which court fees are determined and a breakdown of where fees collected are invested would be useful.

Your suggestions that further resources and funding for a Building Tribunal as

part of SACAT and Alternative Dispute Resolution (such as Mediation) would definitely simplify and streamline court processes and help alleviate the backlog of cases entering the justice system.

CRIMINAL JUSTICE REFORM Criminal Justice Reform is essential and has the potential to further streamline services reducing court backlog and reduce re-offending through rehabilitation.

Procedural issues and other matters certainly seem to have resulted in the system not working effectively. Solutions including your suggestions of a formal process to give the Office of Director of Public Prosecutions carriage of Major Indictable Matters from commencement should be further investigated. A review of the Spent Convictions Act 2009 can increase the capacity for reform and rehabilitation courses within prisons, a must to ensure individuals are returned to the community as better and more productive members of society.

YOUTH JUSTICE Firstly, the age of criminal responsibility in South Australia should be raised from 10 to 14 to limit the number of young children incarcerated and reduce the number of young people falling into the cycle of a lifetime of criminality. I have raised this matter several times during question time (see attached Hansard). Children in care need better services and, when necessary, representation and access to the justice system to ensure the best possible outcome is actioned as soon as possible. The Reunification Court has had great success since it commenced in January 2019 with reuniting 39% of children with their parents.

Unfortunately, this court is not entrenched in legislation and does not provide an avenue for the Youth Court or any other Court to adjourn matters to the Reunification Court. Major gaps in child protection and support for young people und er guardianship still exist. I am working with others to ensure child protection and the inquiry currently underway are major election issues. Young people approaching the age of 18 still require support both

ELECTION RESPONSES

financially (especially if studying) and mentally. Young people need to be provided with support and resources necessary for them to transition from guardianship to independence and remain free of the criminal justice system cycle.

As you would be aware, the Children and Young People (Safety) (Inquiry into Foster and Kinship Care) Amendment Bill 2021 passed both Houses of Parliament in the last week of sitting. I took carriage of this important bill in the Lower House and, with some reservations, am happy to see the Independent Inquiry into Foster and Kinship Care has begun on the 9/1/22. The Inquiry aims to uncover the issues children in care and their carers may have and ensure they are receiving the best services and support the State Government has to offer. I hope through the Inquiry, the voices of carers and children in care will be heard and actions can be taken to address and enhance the services available.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY These pillars of the law-making process often present themselves through the Committees stage of the legislative process, where Members have the opportunity to ask questions on each clause of a bill to ensure the true intent and will of the Parliament is unambiguous.

However, as you mentioned in your document, 86% of new laws in South Australia in the past three years were made by Regulations and are subject to little or no oversight. The standard and requirements to make Regulations (Subordinate Legislation Act 1978) needs to be reviewed immediately to ensure these mechanisms are not used inappropriately and Regulations are meaningful and robust.

WHISTLE-BLOWER PROTECTION This is another issue of great concern to me. I have no problem in calling for a review of the Public Interest Disclosure Act 2018 to ensure protections still exist in their original form, considering the Act provides protections to the individuals in

the public sector who expose corruption.

A review will ensure the Act continues to operate in its original form and changes made to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021 have not negatively impacted or limited the operation or scope of this Act.

relating to trust money or property. Several solutions were recommended by the Law Society’s actuarial report and one can only hope they will be considered in good faith.

Financial measures should be put in place to ensure the Fund is maintained and compensation can be paid in the future.

INDEPENDENTS FAIRER COMPENSATION Changes to the Return to Work SA Impairment Assessment Guidelines have continued to cause problems as they increase deductions for unrelated injuries and prevent proper consideration for explanations, leaving workers worse off. More transparent processes and avenues for review of changes to Workers Compensation are needed. As you will know, Hon Irene Pnevmatikos MLC introduced and successfully passed through the Legislative Council the Return to Work (Impairment Assessment Guidelines) Amendment Bill 2021. This bill aims to ensure Parliamentary scrutiny over the Assessment Guidelines and any changes which may be made to them.

Unfortunately, this bill still sits with the Lower House and will likely lapse by prorogation.

The Victims of Crime Fund remains difficult to access and payments are still minimal for those who do obtain payment.

The formula and compensation paid to victims of crime should be reviewed and increased to ensure victims are supported.

I am aware of examples where access to victims of crime compensation has been denied by the very narrow interpretation of “prima-facie case” and I would certainly like to see some changes in this area.

FIDELITY FUND As established under section 57 of the Legal Practitioners Act 1981. this fund is essential for the protection of all South Australians. The steady decline of the fund is not a new issue and one which has been raised in Parliament. The Fund is important for the compensation of clients who may suffer pecuniary loss by a legal practitioner’s dishonest acts or omissions

Hon Sam Duluk MP, Member for Waite The South Australian community deserves their elected representatives to be actively engaged in reviewing the Emergency Powers granted during situations such as COVID-19.

I am supportive of a full review of the Emergency Management Act 2004 (the Act), with a view of amending the legislation to enact a Parliamentary review of the Act every three months during a declared pandemic or other prolonged emergency situations.

We need to ensure our small business community and constituents have a voice and can respond through Parliament to the laws that impact them.

I am also supportive of new laws to require Government agencies to safely manage personal data that has been collected for the purpose of COVID-19 management and to better understand how these laws interact with Federal privacy legislation.

I sympathise with the need for our court system to operate more efficiently and be more affordable. I would be supportive of policies that would require the Government to publicly disclose the process by which court fees are determined, with an intention of lowering the overall cost of court trials.

Your attention to this matter is appreciated. B February 2022 THE BULLETIN

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KEY ELECTION ISSUES

WHAT IS THE DIFFERENCE BETWEEN 10 AND 14?

BRITTANY ARMSTRONG, SOLICITOR, ABORIGINAL LEGAL RIGHTS MOVEMENT

W

hat can happen in the four years of a child’s life between the ages of 10 and 14? Unfortunately, for a number of already disadvantaged children, a 10th birthday party can be held in police cells when they have engaged in the exact same behavior that they were doing at age nine.

Before turning 10 years old, a child would have never been to a youth detention centre or brought before the Court. Referring to a case study of the Aboriginal Legal Rights Movement, a 13-year-old child may have spent as many as 27 separate periods in police custody without a single conviction or finding of guilt. This is not an issue of who is naughty and who is not. This is a sociological issue. Approximately 65 percent of incarcerated children aged between 10 and 13 in Australia are Aboriginal or Torres Strait Islander.

DOLI INCAPAX In South Australia, the Young Offenders Act 1993 (the Act) identifies that “a person under the age of 10 years cannot commit an offence”.1 The presumption of doli incapax is a common law principle that is utilised in all Australian States and various other countries. It presumes that a child under the age of 14 years lacks the capacity to be criminally responsible for his or her actions.2

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Unlike a criminal defence, the onus is on the prosecution to rebut the presumption of doli incapax. If the prosecution fails to adduce evidence capable of proving that the child actually knew that what they were doing was seriously wrong (rather than merely mischievous or naughty), the child is incapable at law of committing the charged offence and must be acquitted.3 To rebut the presumption, the prosecution must prove beyond reasonable doubt that notwithstanding the child’s age, they were capable of forming the requisite mens rea in relation to the alleged offence.

RAISE THE AGE In 2017, the Australian Law Reform Commission published a Report entitled: Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. When reviewing the cross-over between outof-home-care and detention, particular emphasis was placed on juvenile detention being a key driver of adult incarceration.

The Report outlined that a 2005 study found that 90% of Aboriginal and Torres Strait Islander youths who appeared in a children’s court went on to appear in an adult court within eight years – with 36% of these receiving a prison sentence later in life.

Also in 2017, the Royal Commission into the Protection and Detention of Children in the Northern Territory recommended that the minimum age level of criminal responsibility be raised to 12 on the basis that it would reduce the number of children brought before the courts and it would better reflect current understanding of brain development.4 The Commission also recommended retention of the rebuttable presumption of doli incapax for those aged 12–14.

On 31 January 2019, the Law Council of Australia and Northern Territory Law Society sent out a media release, essentially supporting the recommendations of the Commission.

The Law Council considers the minimum age of criminal responsibility should be at least 12 years, subject to: the rebuttable presumption that children aged between 10 and 14 years are incapable of committing a criminal act remaining in place; and no child under 14 years should be sentenced to detention, except in the most serious cases, in line with the NT Royal Commission’s recommendations.5 The ‘Raise the Age’ campaign is a national campaign to raise the age of criminal responsibility from 10 years to 14 years old. It is based on the ongoing call from the United Nations Committee on the Rights of the Child that the minimum

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age of criminal responsibility should be at least 14, having regard to the medical evidence of a young person’s development6.

In February 2021, the ACT Government commissioned an independent review on the steps required to support the major reform of raising the age of criminal responsibility from 10 years to 14 years old.

In July 2021, the Australian Government appeared before the United Nations Human Rights Council for the Universal Periodic Review (5-yearly occurrence). 31 member countries supported a recommendation to Australia to raise the age of criminal responsibility from 10 to 14.

Despite this, the Australian Government rejected the call stating that it will ultimately be a decision for each jurisdiction to make.

In November 2021, Australia’s Attorneys-General agreed to formulate a plan to raise the age of criminal responsibility from 10 to 12 years old. This was met with backlash by many supporters of the ‘Raise the Age’ campaign, stating it is still too young.

The Honourable David Shoebridge MLC introduced a bill into the NSW parliament on 11 November 2021 headed Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021 (the

Bill). The purpose of the Bill is to raise the age of criminal responsibility to 14 years.

Mr Shoebridge MLC has aptly stated “at ages 10 and 11 children are still losing their baby teeth, they don’t have their pen licences let alone drivers licenses”; “Some of these young people spend their first night away from their families in a prison cell”.

In his Second Reading Speech, Mr Shoebridge MLC stated7: The bill is in fact very simple. It amends section 5 … to raise the age of criminal responsibility from 10 years to 14 years.

This accords with the global consensus. Other nations have a minimum age of criminal responsibility of 14, 16 or 18 years. It is based on understandings of cognition and development that show it is simply not possible for younger children to meaningfully understand the implications of their actions or how they relate to the criminal law and social norms.

There is significant—indeed, overwhelming— scientific evidence that 14 is the bare minimum for this, but even that is likely to be too low.

Schedule 3 of the Bill inserts section 5A to the Act to provide that children under the age of 16 years are not to be remanded awaiting proceedings nor imprisoned as a penalty for a criminal offence. On this point, Shoebridge MLC said:

That does not take any other punitive or diversionary measures off the table. It does not mean there are no consequences. It simply means that the consequence of prison—one which we know is particularly harmful and associated with reoffending, alienation and a future downward spiral in a young person’s life—is not an option for the courts. We know that the young people who do go to prison are not the ones with the expensive lawyers.

They are not the ones with the wraparound services available to address issues they may be having. They are some of the most disadvantaged young people in the State.

Putting them through the criminal justice system and incarcerating them only entrenches that and cuts off alternative pathways. The medical evidence is clear: Child prisons hurt all children. What hurts an 11 year old or a 13 year old also hurts a 15 year old. Given half the children in prison are on remand, the bill also provides that remand should not be an option for children under 16 years.8 There is a group in society who argue that young offenders ought to be incarcerated to “keep the community safe” and “pay for what they have done”. We need to remember the extensive amount of taxpayer dollars that are being spent on the process of arrest, bail/remand, court, and lawyers. Furthermore, does this group understand the often childish ‘offending’ February 2022 THE BULLETIN

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that is being committed? Many young people are being charged for doing things that are a product of their environment.

They are stealing things because they have seen their families steal things, or because they are hungry and have no way of getting food. They are putting petrol in a car that is being driven by their father, mother or brother. They are driving a car because of family pressure. They are breaching their bail because they do not want to be at home. These are not criminals. These are children. Unfortunately, many of these are Aboriginal children.

The presumption of doli incapax provides a safeguard for our young people which, more often than not, results in the charges against the young person being withdrawn. When you acknowledge that, it becomes apparent that a number of young people have been taken from their community, arrested, placed into youth detention centres and brought before the Court on numerous occasions for childish behavior that does not result in a conviction.

It is widely accepted that children between the ages of 10 and 14 do not have the requisite capacity to commit a criminal offence. Accordingly, it is unsurprising that these children barely understand the Court process. The process outlined above is doing nothing to “teach them a lesson” or “ensure the safety of the community”, rather, it is costing the State money at every stage, with no ‘win’ for anybody.

This is particularly so given the statistics of children who later ‘graduate’ into the adult system.

Under current legislation, when a child

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is 9, they can walk along a street and see a bike. They can ride off on that bike. The police may see them, tell them they cannot take the bike and take them home. When a child is 10, a child can walk along a street and see a bike. They can ride off on that bike. The police may see them, speak to them (likely tackle them to the ground), place them in handcuffs, take them to the closest police station and arrest them for unlawful possession of a bicycle.

The police will likely interview them and the child may say “I didn’t know that I wasn’t allowed to take that bike.” Despite that, police may refuse bail and that child may be taken to Kurlana Tapa Youth Justice Centre until the Court can hear an application for bail. In almost all cases, that young person will have the charges against them withdrawn.

Aboriginal young people between 10 and 14 are grossly overrepresented whether it be on bail or in detention. This is a result of the existing disadvantages that these young people face, and continue to face throughout their life. The criminal justice system sweeps them up indiscriminately.

As a nation, we have a responsibility to look after our First Nations children. They are the future. We have the opportunity to change the current direction of their life.

Raising the age of criminal responsibility will not only ensure that young children are not spending time away from their families and communities unnecessarily, but it will help to secure a more positive future for them, and for our society.

The South Australian Government needs to follow the lead of NSW and the ACT and take action to commence

legislation that will ultimately see the age of criminal responsibility being raised from 10 to at least 14. It is acknowledged that we do not have all the answers at this stage. We don't necessarily know what we should do to assist those young people who would usually be brought before the Court. That however, is not a reason to resist raising the age. Raising the age will release additional funds whereby the Government can examine alternatives to help keep these disadvantaged children on the right track. It is called justice reinvestment.

The questions should not be “Why are these children out on the streets?” or “Where are their parents?” The question should be “How can we help these children, our children and valued members of our society?” B Endnotes 1 Section 5.

2 RP v The Queen [2016] HCA 53 at [4].

3 R v Johnson [2015] SASCFC 170; R v Gorrie (1918) 83 JP 136; JM (A Minor) v Runeckles (1984) 79 Cr App R 255.

4 NT, Royal Commission into the Protection and Detention of Children in the Northern Territory, Final Report (2017) vol 2B, 420 (Recommendation 27.1).

5 Law Council of Australia Media Release: Law Council and NT Law Society support reduction of NT age of criminal responsibility, 31 January 2019.

6 This has been supported by the Australian Medical Association in their submission to the Council of Attorneys-General – Age of Criminal Responsibility Working Group Review – 2 February 2020.

7 As quoted in Parliament of New South Wales Legislative Review Committee, Legislation Review Digest, NO. 37/57 – 16 November 2021, P44.

8 Ibid.

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ACCESS TO JUSTICE

ACCESS TO JUSTICE: AN INVESTMENT WITH A GOOD RATE OF RETURN ZOE LEWIS

W

hat does access to justice even mean? It doesn’t just mean being able to afford a lawyer and court filing fees (although financial barriers can obviously be very significant).

It is also about access to information early on to help avoid the need for lawyers and court applications in the first place.

It is about legal services that are physically accessible, culturally appropriate, delivered by someone who understands trauma and mental illness if those are challenges faced by the person needing the services. It is also about being able to access the legal help at the right time – needing to wait two weeks for a free appointment somewhere might mean the person misses out on the information when they could have best utilised it.

Many services strive to provide access to justice but this system can be difficult to navigate. As services gain and lose funding, they necessarily change the scope of the services they offer, and their capacity to take on new clients fluctuates.

The legal aid scheme provides invaluable assistance to many people facing criminal or family law matters in particular.1 But many people won’t qualify.2 For example, if someone isn’t facing a period of imprisonment for their criminal charges, they may be facing other lifechanging consequences, such as loss of driver’s license and employment, but will still not qualify. They might be able to access assistance through a Community

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Legal Centre (CLC) but this will depend on factors such as where they live and the capacity of their local centre.

JusticeNet, where I work, fills many gaps in the legal assistance sector. The model is heavily reliant on the generosity of members of the private profession agreeing to undergo pro bono work. This is a highly economical and successful model which has proven to be sustainable for well over a decade. However, demand for our assistance continues to exceed the available resources.

This means people often face a long journey from, perhaps, an initial conversation with the legal helpline, a consultation with their local CLC, and an application to JusticeNet as their last resort.

And many matters can still fall through the cracks.

This has consequences for individuals, families, the Courts, and the community at large.

Imagine you received a speeding fine in the mail. The camera detected your car at a location at which you never drive.

You know straight away that something is wrong. You consult your electronic diary on your reliable and fully charged smartphone and check who was actually driving the car that day. Plus you know you have the option of requesting photos if you think they have mistaken the vehicle altogether. Although you’re not happy about the $400 fine, if you end up having to pay it, it probably isn’t really going to impact your life too much. And if it really

all goes pear-shaped, you probably know a traffic lawyer you can ask for help.

Now imagine you don’t have a fixed address so didn’t receive the fine until it was too late to submit a statutory declaration or consider electing to be prosecuted. Instead, enforcement action has commenced and additional fees added.

You don’t have a job because you don’t have enough housing stability to maintain one. You will therefore have to repay this fine from your Centrelink benefits and will definitely notice the reduction in your fortnightly income for the duration of your repayment arrangement.

You don’t know where to go for help and certainly can’t afford to pay a lawyer to sort it out. You hear about the free legal helpline, and you do have a mobile, but because you live out of your car it is frequently without power or credit. That makes it harder to call them. Your phone is also regularly lost or stolen and so you don’t have records to help you figure out if you were even the driver on the relevant day.

The unfortunate reality is that people who are facing disadvantage are significantly more likely to be experiencing legal problems and are also more likely to be facing multiple legal problems.3 Services like the Legal Services Commission, Community Legal Centres, Aboriginal Legal Rights Movement and JusticeNet are well-placed to improve access to justice. They have legal expertise at their disposal as well as a commitment

ACCESS TO JUSTICE

to making services truly accessible, such as arranging interpreters where they are needed and ensuring that services are delivered by people with an understanding of the financial and non-financial barriers which the person might be facing in resolving their legal problems.4 However, uncertain, inadequate and ever-changing funding brings challenges to the sector.

How often do lawyers at one of these services think to themselves “if only this person had received some help earlier”? A truly effective legal assistance sector is well enough resourced to assist with such preventative education and early intervention work. Showing up to a legal advice appointment might (understandably) not be someone’s top priority if they also need to figure out where their next meal is coming from, where they are sleeping that night, or how they are gathering the identity documents which Centrelink have demanded before any further payments will be made to them. But if legal services are made as accessible as possible, the chances of them being utilised increases, and this can help vulnerable individuals to avoid spiralling consequences such as mounting fines and missed opportunities to file relevant documents. Examples of such services include duty solicitors on site at the Court precincts and JusticeNet’s Homeless Legal service (which provides legal help at the homelessness centres clients are already attending for meals and other assistance).

Ideally, a well-funded, stable, cohesive and collaborative legal assistance sector would mean that people could easily find the service best placed to assist them, taking into account their geographical location, the type of legal issue, and other relevant circumstances, such as family violence or disability. Specialist services are particularly effective because the lawyers have the most relevant skills and experience. An example is the various family violence legal services which are operated by lawyers and support staff who understand the practical and emotional challenges of this situation.

This has obvious benefits for the individual, who gets the support they need. However, this also provides undeniable benefit to the Courts (as lawyers assist in ways such as narrowing the issues in dispute), as well as to our community as a whole.5 From my experiences, the lawyers who work in this space are talented, dedicated and generous. It is worth celebrating the commitment to access to justice which is shared by so many within the South Australian legal profession. However, these resources are finite and unfortunately demand constantly exceeds capacity.

“An effective justice system must be accessible in all its parts. Without this, the system risks losing its relevance to, and the respect of, the community it serves.

Accessibility is about more than ease of access to sandstone buildings or getting legal advice. It involves an appreciation

and understanding of the needs of those who require the assistance of the legal system.”6 B Attorney-General Robert McClelland Foreword to the Report of the Access to Justice Taskforce September 2009 Endnotes 1 https://www.un.org/ruleoflaw/thematic-areas/ access-to-justice-and-rule-of-law-institutions/ access-to-justice/ 2 In Australia, legal aid goes a long way to addressing the financial barriers to accessing justice. However, it is not a solution in itself.

More than 13 per cent of Australians live under the poverty line, while legal aid is available to just eight per cent. Many impoverished people are considered too wealthy to get basic legal help. https://www.lawcouncil.asn.au/justice-project/ access-to-justice 3 Law Council of Australia, The Justice Project, “People who are homeless”, Final Report – Part 1, August 2018 4 Australians who experience disadvantage may find it more difficult to access necessary legal assistance for many reasons such as education and literacy levels, language barriers, financial constraints, lack of accessibility, access to information and digital technology, past traumas and hesitation to engage in legal processes and lack of knowledge about their rights and where to go for advice and assistance. https://www. lawcouncil.asn.au/justice-project/access-to-justice 5 Properly investing in legal assistance services will increase access to justice, reduce the emotional and financial burden on individuals, reduce the pressure on courts, and reduce delays in the justice system. LSSA Key Election Issues 2022 State Election.

6 https://www.ag.gov.au/legal-system/access-justice

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Enhancing accountability and transparency in the law-making process DR SARAH MOULDS

2

021 was a year of high drama for the South Australian Parliament. There were allegations of harassment, corruption and conflicts of interest, lightning-fast legislating, a Speaker deposed, and procedures and conventions radically altered, before we even factor in the COVID-19 pandemic.

The rolling sense of chaos and disorder that characterised South Australian politics in 2021 has been building for some time, with pre-existing concerns about the integrity of parliamentarians, the continued legitimacy of extraordinary delegation of lawmaking power, and the absence of respect for rule of law standards.

Even for the most seasoned members of the legal profession, it is increasingly difficult to understand who is making the law, what the law actually is, and who is responsible for making sure everyone sticks to the rules.

It is easy to feel like these problems are intractable and unavoidable in the context of the COVID-19 pandemic, but there are practical things we could do right now to begin to restore this breach of trust and to highlight those many parliamentarians who act with integrity and listen to their electorate. These include measures that would promote more consistent parliamentary scrutiny of proposed legislation, impose clear limits and safeguards around executive law-making, and improve the community’s access to and understanding of changes to laws that affect their daily lives.

The Law Society of South Australia

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considers these reforms to be essential to facilitating meaningful public engagement with the South Australian Parliament, and to promoting compliance with rule of law standards. Moreover, these reforms have the potential to improve the quality of lawmaking in this State, by facilitating early expert input in legislative design and identifying and addressing unintended or disproportionate consequences before they lead to costly litigation or embarrassing public inquiries.

Some of the specific recommendations advanced by the Law Society include: The establishment of a Scrutiny of Bills and Delegated Legislation Committee.

South Australia is the only Australian jurisdiction without such a Committee, leaving a significant gap when it comes to the provision of accessible, reliable and independent information about proposed new laws for the public and the Parliament. A Scrutiny of Bills Committee would provide much needed systematic consideration of each and every Bill introduced into parliament in light of a set of common law rights (such as that used by the two Senate scrutiny committees and in the NSW and Victorian parliaments) and/or a set of human rights (such as that used in other jurisdictions such as the Commonwealth Parliament, Victorian Parliament, ACT Parliament, NT Parliament and Queensland Parliament).

The establishment of a Scrutiny of Bills Committee has also been recommended by

the Select Committee on the Effectiveness of the System of Committees in its Final Report tabled on 25 August 2021.

A review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. The South Australian response to the COVID-19 pandemic has included an unprecedented transfer of lawmaking power away from the parliament and towards the executive. While this approach may have been effective and appropriate at the beginning of the pandemic, fissures are now beginning to show. The range of complex policy considerations that must now form part of our response to the pandemic rightly fall within the bailiwick of Parliament. No longer can we continue to look solely to one or two highly competent but singularly focused senior public officers to forge a pathway out of this broad ranging crisis. Clarifying the procedures for delegating lawmaking power, and preserving parliamentary oversight of such powers, is one way to begin to restore the separation of powers that has defined South Australia’s legal and constitutional character.

Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these Committees can undertake meaningful and robust reviews of proposed legislation.

Parliamentary committees are an

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essential component of our parliamentary culture that must be preserved and protected. These committees – which can be comprised of members from one or both houses, and from the full range of political parties - provide parliamentarians with the space to deliberate and examine executive decision making, as well as providing deliberative forums for parliamentarians to engage directly with experts and with those with diverse lived experiences that may be acutely relevant to proposed laws or policies under consideration. Increased investment in the South Australian parliamentary committee system is essential to ensure that these bodies can continue to perform their important functions, have access to high quality support and advice, and embrace innovative practices and technologies to reach out to a diverse range of South Australians including those previously marginalized from the parliamentary lawmaking process.

The implementation of a Parliamentary policy to ensure proper public consultation on all proposed legislation, and that establishes an agreed framework in relation to timeframes and processes of consultation.

The lightning-fast pace at which the South Australian Parliament introduced, debated and enacted significant legislation in 2021 rendered thoughtful consideration by representative bodies, industry groups, experts or community members completely impractical. While there will always be the need to enable ‘emergency’ lawmaking, it is critical that the starting point for the introduction of new legislation includes a commitment to facilitating meaningful public consultation, and ongoing sharing of information that explains and justifies the need for the proposed new law.

When viewed in isolation, these recommendations may seem boring and dry, focused as they are on parliamentary procedure rather than substantive rights issues. However, they go to the heart of

our representative democracy, and our constitutional character. If the community cannot access reliable information about the laws being made in our State, or cannot identify a legitimate pathway or forum to raise their genuine concerns or perspectives on a proposed law, they may turn to less productive platforms or spaces to vent their frustrations or voice their misunderstandings. This in turn risks creating an environment where the people are disconnected from their parliament, and where lawmakers escape scrutiny or accountability for the decisions they make.

2022 provides an important opportunity to reform and reset, and to restore public trust in our most central of public institutions. Let’s hope the State Election helps to focus the minds of our politicians on these important recommendations and reforms.

Dr Sarah Moulds is a Senior Lecturer in Law at the University of South Australia and Director of the Rights Resource Network SA. B

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Vulnerable people need better legal protection in guardianship matters JENNIFER CORKHILL

I

n South Australia applications may be made to the South Australian and Administrative Tribunal (SACAT) pursuant to the Guardianship and Administration Act (the G&A Act) and the Mental Health Act 2009 (the MH Act) for various orders including: • Inpatient Treatment orders which provide for long term involuntary detention and involuntary treatment in a psychiatric hospital (MH Act); • Community Treatment Orders which provide for involuntary medical treatment in the community (frequently by injected medication) (MH Act); • Orders that a person be given involuntary electro-convulsive therapy (ECT). (MH Act); • Administration Orders which provide for the management of a person’s finances by another person or Public Trustee (G&A Act); • Guardianship Orders which allow a guardian, sometimes the Public Advocate to make lifestyle decisions (G&A Act); • Special powers under Section 32 which can be used to require a person to reside in a particular place/detain the person in a particular place using force if necessary (G&A Act).

All of these orders have the potential to result in orders which abrogate the civil liberties most of us take for granted. All have the potential to have a significant

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impact upon the life of the person the subject of the order.

Whilst legal representation is provided free of charge for reviews of these orders, there is no provision for free legal representation for the initial hearings before the SACAT where evidence is taken and where the initial decision is made.

In the majority of cases, the person who is the subject of the application will be suffering from mental illness or some form of mental disability.

In addition, they may be psychiatrically unwell at the time of the hearing. This will clearly affect their ability to understand the case against them or call evidence or make representations on their own behalf.

Most applicants for these hearings are health professionals or family members who have the support of health professionals and involve the presentation of medical evidence from hospital or community health medical case notes along with other evidence from interested parties.

The majority of those the subject of the application are unaware in advance of the hearing of the nature of the evidence against them or that they can challenge the evidence and few bring their own expert evidence for reasons of ignorance and/ or cost.

The majority are simply unable to present a compelling case against the orders which are being sought if they cannot afford to pay for legal

representation.

The power imbalance between a mentally ill or disabled person and applicants is obvious and most find the whole process extremely intimidating.

All other states except Western Australia provide at least some legal assistance for first instance applications.

The failure to provide free legal representation for those the subject of initial applications to the SACAT is contrary to International Principle 18(1) of the United Nations “Principles for the Protection of Persons with Mental Illness and For The Improvement of Mental Health Care” which provides as follows: The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint or appeal. If the patient does not secure such services, a counsel shall be made available without payment to the patient to the extent that the patient lacks sufficient means to pay.

In 2017 and 2018 the Law Council of Australia conducted a comprehensive review (the Justice Project) into the state of access to justice for people experiencing significant disadvantage.

The Law Society of SA made submissions to this review and the following case study was included in the final report drawn from the writer’s experience.1 ‘Glenda is an Aboriginal woman who

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was suffering from extremely severe depression and who was detained against her will under the Mental Health Act in a psychiatric institution. The treating team made an application to the Guardianship Board for Electro Convulsive Treatment (ECT).

Under [South Australian] law ECT can only be given without consent if the person lacks capacity. Glenda was taken to a Guardianship Board hearing where the Board and all of the treating team were male. No Aboriginal liaison person was appointed. Funding is not available for legal representation at these hearings.

The transcript of the hearing shows that the report of the treating team regarding Glenda’s capacity was accepted without question and the order was made.

Fortunately for Glenda she had 2 daughters who, when they found out about the order, contacted Aboriginal Legal Rights who contacted me. I was able to get the matter on urgently before the District Court and seek a stay of the order.

Glenda was so depressed that she could barely speak but I was, after careful and gentle questioning over a considerable period of time with appropriate breaks, able to obtain clear instructions and make an assessment that Glenda did in fact have legal capacity. She was terrified about the prospect of ECT and had felt powerless to do anything about it.

Had Glenda had legal representation at the first instance, her legal capacity could have been established and her daughters could have accompanied her to the hearing. She would have been able to challenge the medical team and the order could not have been made’.

The Justice Project found as follows: “Legal representation for people facing the Mental Health Tribunal can make a noticeable difference to the outcome achieved. For instance, the Victorian Mental Health tribunal approves applications for electro-convulsive treatment in 85 per cent of cases but this approval rate drops to 50 per cent if the person is legally represented.366” 2 The Justice Project recommended as follows: • All persons who are experiencing economic disadvantage subject to applications under Guardianship and Administration and Mental Health legislation should receive free legal assistance and representation at the first instance hearing3.

If a scheme providing for free legal representation were to be available for those the subject of the application at the initial hearing stage it is highly likely that the number of reviews would be reduced as clients would be able to present their case properly, and at the conclusion of the hearing be advised as to the likelihood

of success of a review rather than having to lodge a review application, wait for transcript and reasons and then seek legal advice. Clearly the cost of producing transcript and reasons would also be minimised as would the cost of the review hearing.

People who have been charged with criminal offences which carry a potential penalty of imprisonment are entitled to free legal representation via legal aid. The orders listed above have similar potential to deprive the person subject to the order of their liberty.

This significant impediment to access to justice for these people has been a fixture in the Law Society’s advocacy since 2005, and has been highlighted in state election submissions and a range of other submissions.

Jennifer Corkhill is a former winner of the Society's Justice Award for her work in advocating for better legal support for people with disability and mental illness. She is a member of the Society's Justice Access Committee. B

Endnotes 1 Justice Project Final Report – part 1 People with Disability page 59 2 Justice Project Final Report – part 1 People with Disability page 60 3 Justice Project Final Report - Recommendations and Group Priorities page 16

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Building disputes need a more efficient resolution process ALEX LAZAERVICH, CHAIR, CIVIL LITIGATION COMMITTEE

A

s chair of the civil litigation committee, and as a lawyer practising in, amongst other things, construction disputes, I have a concern over the cost and delay associated with residential construction disputes.

Whilst a range of legal issues often arise over issues to do with licencing, quantum meruit claims, apportionment of liability, contractual formalities, limitation issues and workers liens, in my experience the most common issue that arises is the builder asserting entitlement to payment for work and the owner asserting that the work is defective.

Disputes over residential building work are time consuming, incredibly expensive, inefficient and highly stressful. From the owners’ perspective there are emotional issues involved in a family’s major asset and place of residence being left in an unfinished or unsatisfactory state. From the builder’s perspective a failure to get paid has a flow on effect, which can cause the builder to have cash flow issues which might affect the ability to pay suppliers or subcontractors who in turn have their own families to feed.

Simply put, it is highly desirable that building disputes be resolved quickly and efficiently.

Unfortunately, the traditional legal system model seems to involve the following kind of process:

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• • •

• •

•

•

Initial letters of demand and pre action meetings where parties take polar positions.

Institution of proceedings.

Arguments over pleadings. The pleadings are often complicated because there may be a range of sub issues, and arguments over particulars are common – for example why is an item of work defective, what standard is relied on, how was it departed from, what was the consequence, what needs to be done to fix it and so on.

Discovery.

The obtaining of expert reports by each party. Those reports might include a report from a building inspector, architect or engineer, and there may be multiple reports obtained which go to liability. Further reports are then needed to establish the quantum of fixing defective works, usually from a quantity surveyor. Each report may cost between $5000 and $10,000, or more.

After exchange of reports there is often a process of supplementary reports and responding reports as well as meetings of experts.

Experts often differ in their opinions, that often being a consequence of who instructed them. A builder will usually want to adopt the cheapest solution to fix a problem; the owner usually wants what they contracted for. Often issues

arise as to who is to blame for what has occurred.

• Mediation – often the parties by this point have spent more than the dispute is worth, and the settlement often ends up consumed by legal and expert fees.

• A trial – building trials invariably take far longer than ordinary trials, often in a simple building matter with a small number of issues lasting over a week, and where there is a lot of defective work alleged often lasting weeks or months.

The trial process often involves the Court taking a ‘view’ of the site in question, and usually involves extensive evidence from experts, explaining in detail the relevant drawings, Australian Standards, technical terms, and agonising over matters of detail through the oral system of question and answer in chief and cross examination. It is not unusual for a building dispute to cost hundreds of thousands of dollars and take many years.

In the meantime the builder is unpaid; the owner usually is putting up with defective work and being highly stressed; neither party can readily afford the cash drain of legal fees.

One must question the efficiency of that process.

The legal issues themselves usually do not take too much time to argue, even if complexities arise. It is the factual and

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technical questions that take the time.

If one strips back the process of determining the technical questions, the process involves each expert going on to site for usually no more than a matter of hours. It is the process of obtaining a multiplicity of reports, and educating lawyers and judges about those reports that takes the time.

In my view a more efficient approach to resolving the technical questions is for a person or persons with the appropriate qualifications to attend on site and prepare a report which becomes the factual finding.

The parties might make submissions to the expert, but it would the expert who makes the finding. If the issue is an engineering issue that person would be an engineer; if a question of cost the person might be an

experienced builder or quantity surveyor; and the issue is quality of work that person might be a building inspector or architect.

By having the expert determine those factual questions one avoids the delays of multiple rounds of expert reports and the lengthy trial. There is no reason why those factual issues could not be determined in a matter of weeks rather than years.

To that end my suggestion is that there be a specialist building Tribunal established, either as part of SACAT or independently consisting of a pool which might include legal members, but more importantly comprise a pool of recognised experts. Legal questions might be determined by a legal member, perhaps as part of a panel, but the technical questions would be determined by the experts. The

aim would be to reduce the time taken to determine a dispute to a matter or weeks or months rather than years with the associated saving of costs.

Each of QCAT, VCAT and NSWCAT have jurisdiction to hear and determine residential construction disputes. As long as there is an appropriate pool of technical expertise to draw on to decide the technical questions it is my opinion the approach has much to commend.

The simple reality is that most owners involved in residential building disputes are ordinary people with limited finances. The Court process is simply too slow and too expensive for ordinary people to afford. B

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February 2022 THE BULLETIN

31

DR DUNCAN

GAY LAW REFORM: HOW SOUTH AUSTRALIA LED THE NATION AND ENGLISHSPEAKING WORLD TIM REEVES, INDEPENDENT HISTORIAN

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n the morning of 11 May 1972 the body of a man was pulled from the River Torrens, on its southern bank close to the intersection of Victoria Drive and Kintore Avenue. The body had lain on the riverbed for about ten hours and its arms were gruesomely outstretched from the effects of rigor mortis. A television cameraman arrived late and SA Police obligingly returned the body to the river for the filming of its retrieval. Two days later the dead man was identified as Dr George Ian Ogilvie Duncan, a law lecturer at the University of Adelaide. His killing would trigger profound changes in South Australia’s criminal law.

Duncan was born in London and known as ‘Ian’ from an early age. He was educated in Melbourne before gaining a doctorate at Cambridge University, his thesis being published as The High Court of Delegates. He was 41 and had arrived only seven weeks before, having been appointed to teach legal history and Roman law. The head of the University of Adelaide’s law school at the time was Professor Horst Lücke, who met Duncan on arrival and conveyed him to Lincoln College where he had rented a flat.

The southern bank of the River Torrens was a beat: a meeting place for homosexual men. At around 11 pm on 10 May Dr Duncan and another man, Roger James, had been thrown into the river by a group of men. James suffered a broken ankle; Duncan drowned. The murder shocked the community with allegations that police, engaged in their regular activity of ‘poofter bashing’, were involved.

It was a cruel irony that Duncan had come from Britain – which had decriminalised male homosexual acts in 1967 – to a country where they were still criminal in every state and territory.

Attorney-General, Don Dunstan in 1965

32 THE BULLETIN February 2022

had convinced Cabinet to introduce a decriminalisation Bill into the South Australian Parliament, but he had been blocked by the Labor Caucus.

The colonists had brought English law with them to Australia. It had never been codified against male homosexuality as such; its focus had always been on specific sexual behaviour. Buggery – anal sex – was first criminalised by Henry VIII in 1533, and in the beginning it was punishable by death. This code operated initially in every colony of Australia. It was not until 1859 – three years after the colony gained self-government – that the death penalty was removed in South Australia, although it had never been used. Over time the penalty was reduced from ten years to life imprisonment, to a maximum of ten years, though early on this included hard labour and even allowed for flogging. Key changes to South Australian law meant that, by 1935, attempting to procure or committing a male homosexual act whether in public or private was outlawed.

These were the restrictions in place when Dr Duncan arrived.

At the inquest into the death three vice squad officers refused to answer all questions put to them, were suspended and later resigned from the police force. The coroner’s finding was death due to violence on the part of persons unknown. Public concern was so great that Murray Hill, a progressive member of the conservative side of politics – the Liberal and Country League Party – revealed that he would prepare a private member’s bill to enact decriminalisation. It was introduced into the Legislative Council on 26 July 1972.

The Bill was based on the 1967 British legislation. It would allow consensual sexual acts in private between two men over the age of 21, even though females could consent to sexual activity in South

Dr George Ian Ogilvie Duncan

Australia at the age of 17 and the legal age of adulthood in the state was 18. The Bill defined ‘in private’ as involving no more than two people and not ‘in a lavatory to which the public have or are permitted to have access’, a specific reference to beats.

Ren DeGaris, the leader of the Conservatives in the Legislative Council, introduced a devastating amendment to the Bill. He moved that a private, consensual act, committed between two men over 21, would exist only as a defence in court. It allowed for a measure of reform, inevitable and perhaps even necessary after the death of Dr Duncan, but meant that homosexual men would still be dragged before the courts with the attendant publicity. The amended Bill eventually passed both Houses of Parliament. Full decriminalisation thus had not been achieved.

In 1973 Labor’s recently elected member for Elizabeth, Peter Duncan (no relation to Dr Duncan), announced that

DR DUNCAN

he would introduce a radically different Bill into the House of Assembly. The Bill provided for ‘a code of sexual behaviour’ applicable to all persons regardless of sex or sexual orientation. In creating statutory equality between homosexuals and heterosexuals, it established a common age of consent of 17, the same penalties for non-consenting acts and the same restrictions on public acts and penalties. It abolished the offences of buggery, gross indecency and soliciting for homosexual purposes, but now recognised male prostitution and homosexual rape. Harsh penalties were prescribed for sexual offences against children, with special reference to those committed by teachers, guardians or others in a duty of care. This indeed would be far-sighted legislation.

In November 1973 the Bill was put to the vote in the Legislative Council and defeated on the casting vote of the President, Sir Lyell McEwin. In an astonishing lapse a Labor member, Cec Creedon, who supported the Bill failed to vote. He claimed he had not heard the bells ringing for the division. The Bill was reintroduced under a rarely used Standing Order (supposedly last employed in 1884) which allowed a Bill defeated at the second reading to be restored to the notice paper.

But McEwin’s deliberative vote ensured failure again.

After the 1975 election the Dunstan Government was returned to power and, while commanding only a one-seat majority in the House of Assembly, its representation in the previously conservative-dominated Legislative Council changed dramatically.

The state of the parties was now: Labor – ten; Liberal – nine; and Liberal Movement – two. Although success was not assured this was enough for Peter Duncan to declare on 7 August that he would introduce a Bill which was almost identical in legal intent to that of 1973.

On 17 September 1975 South Australia became the first state or territory in Australia to achieve decriminalisation. This legislation was also the first in the Englishspeaking world to eliminate any distinction in the criminal law between heterosexual and homosexual acts, including the equal age of consent. South Australia’s lead was soon followed by the Australian Capital Territory (1976), then Victoria (1980), the Northern Territory (1983), New South Wales (1984), Western Australia (1989), Queensland (1990) and, finally, Tasmania – 22 years later in 1997.

The Duncan case, however, had remained unresolved. Following the coroner’s open finding, Premier Dunstan had approved a proposal from his new Police Commissioner, Harold Salisbury, to call in two detectives from New Scotland

Yard. Their report – which was not released until 2002 – had recommended prosecutions, but the Crown Solicitor decided there was insufficient evidence to proceed. The detectives returned to Britain where they were both later jailed for unrelated offences.

The case was reopened in 1985 following claims by a former vice squad officer of a police cover-up. Subsequently, the three officers identified in the New Scotland Yard report were charged with Duncan’s manslaughter. Brian Edwin Hudson was not brought to trial, unlike Francis John Cawley and Michael Kenneth Clayton – who were acquitted in 1988. A police task force recommended to State Parliament two years later that no further action be taken unless new evidence was forthcoming. And there the case has essentially rested.

The death of Dr Duncan remains one of South Australia’s most notorious unsolved murders. But it was the trigger for momentous changes in the state’s law when male homosexuality for many people was a social taboo.

The Adelaide Festival production of Watershed: The Death of Dr Duncan has been commissioned to mark the 50th anniversary of Duncan’s killing.

It runs over six days and nights at the Dunstan Playhouse from 2 March. B

Lawyer to explore regulation of movement through dance at Fringe Festival

L

awyer-turned-choreographer Rhys Ryan is heading to Adelaide Fringe to stage his latest dance work, Bodylex, which explores the physical effect of legal systems on the body.

“I split my time between working as a lawyer and freelancing as a dance artist,” says the 31-year-old from Melbourne. “I’m a mergers and acquisitions lawyer by day but moonlight in dance studios. I think there’s incredible potential for combining these disciplines – you just have to be creative.”

After winning support from the Adelaide Fringe Artist Fund, Bodylex will embark on a tour to Adelaide in 2022.

Bodylex is set in a tightly controlled arena, where three performers – driven by the pulse of a slowly accelerating metronome –

weave movement with metaphor to reveal the invisible laws that shape our actions.

It’s a stark and provocative view of our existence under rule-based systems.

“Laws are designed to regulate our behaviour,” explains Rhys. “We are constantly negotiating these rules, either deliberately or unconsciously, in a delicate balance between external pressures and our innermost desires.”

“Physical distancing restrictions are a perfect example of laws regulating our movement. But the interesting part is the choice we face: do we resist, conform or adapt to those rules? What does this reveal about our relationship to power structures and how we exercise agency?”

Bodylex will run from 22-26 February at The Bakehouse Theatre. Tickets are available at www.adelaidefringe.com.au/ fringetix. B February 2022 THE BULLETIN

33

CASE NOTE

Australian regulators crack down on companies promoting goods purported to prevent COVID-19 MADI MCCARTHY AND MARK GIDDINGS

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ince COVID-19 was declared a pandemic in March 2020, Australian regulators have been targeting companies that advertise or sell products with purported but unproven preventative or curative effects with respect to the COVID-19 virus. In a notable example, the Therapeutic Goods Administration (TGA) issued fines totalling over $100,000 against a company associated with celebrity chef Pete Evans for promoting and selling the “BioCharger NG Subtle Energy Platform”, which Evans claimed could be used to treat COVID-19 without any scientific or technological basis.1 Other companies have been fined by the TGA for their unsubstantiated claims in relation to COVID-19 preventative nasal sprays, disinfectants and rapid test kits.

Recently, activewear retailer Lorna Jane has been both fined by the TGA and had proceedings brought against it by the Australian Competition and Consumer Commission (ACCC) for claims the company made regarding its LJ Shield Activewear line of clothing.

In July 2020, amidst a time of considerable uncertainty and concern about the consequences and spread of COVID-19, Lorna Jane launched a marketing campaign to promote its new range. The marketing campaign, conducted through various social media platforms, direct emails to customers and in-store advertisements, made a series of representations that LJ Shield Activewear, coated with LJ Shield, could eliminate pathogens and viruses, protect against COVID-19 and stop the spread. Further, Lorna Jane represented that it had a

34 THE BULLETIN February 2022

reasonable scientific and technological basis for making such representations.

TGA INFRINGEMENT NOTICES AGAINST LORNA JANE On 17 July 2020, the TGA issued Lorna Jane with three infringement notices totalling $39,960 for alleged unlawful advertising in relation to COVID-19.2 According to the TGA, by advertising LJ Shield Activewear for therapeutic use, it was a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (Cth) and was therefore subject to the Therapeutic Goods Regulations 1990 (Cth) and the Therapeutic Goods Advertising Code (No 2).

As a therapeutic good, LJ Shield Activewear was required to be registered in the Australian Register of Therapeutic Goods before it could be lawfully supplied or advertised in Australia. Additionally, any references to COVID-19 in the promotion of therapeutic goods was a “restricted representation” that is unlawful unless prior formal approval has been obtained from the TGA. Lorna Jane had taken neither of these steps.

ACCC COURT PROCEEDINGS AGAINST LORNA JANE Following this, in Australian Competition and Consumer Commission (ACCC) v Lorna Jane Pty Ltd [2021] FCA 852, the ACCC commenced proceedings against Lorna Jane, alleging that the company had engaged in misleading or deceptive conduct, made false or misleading representations and engaged in conduct that was likely to mislead the public, in

contravention of sections 18, 29(1)(g) and 33 of the Australian Consumer Law. Shortly before the hearing, Lorna Jane admitted the contraventions and the parties made joint submissions on the proposed penalty and orders. The parties sought orders that Lorna Jane pay a penalty of $5 million, be restrained from using the phrase “anti-virus” or other similar phrases for three years and publish a corrective notice on its website, in-store and to be emailed to customers.

Because Lorna Jane consented to the orders, all that was left for the Court to decide was whether the proposed penalty and other orders were appropriate in the circumstances. With this in mind, Rangiah J noted that: Lorna Jane sought to exploit the fear and concern of the public through the use of misleading, deceptive, and untrue representations about the properties of LJ Shield Activewear. The behaviour of Lorna Jane can only be described as exploitative, predatory, and potentially dangerous … There is a need to impose a substantial penalty to reflect the seriousness of the conduct and to demonstrate that exploitative conduct of this kind will not pay.

His Honour also noted that the ACCC had not alleged that Lorna Jane knew that the representations were false, had actually profited from its conduct or that the contraventions caused harm to consumers.

In the circumstances, his Honour was satisfied that the proposed penalty of $5 million was appropriate.

In a statement published on Lorna Jane’s website, CEO Bill Clarkson commented

CASE NOTE

that the company “had been let down by a trusted supplier” who led them to believe “the technology behind LJ Shield was being sold elsewhere in Australia, the USA, China, and Taiwan and that it was both anti-bacterial and anti-viral.”3

COMMENT In light of the heightened public concern around COVID-19, this decision demonstrates that the TGA is closely monitoring and taking action against companies that advertise therapeutic goods which purportedly prevent or cure COVID-19 or other viruses. Additionally, the decision shows that such companies may be targeted by more than one regulator and face significant penalties if their

representations are capable of creating a false impression that their claims are backed by scientific or technological evidence.

For companies, the ACCC case against Lorna Jane is a reminder of the responsibility not to make false or misleading representations about products or services. It makes no difference if a statement was intended to be misleading or not. What is determinative is whether the statement is objectively misleading. It is also a message to consumers to exercise caution, while processing and navigating the “new normal” that is COVID-19, around products marketed as preventing or curing COVID-19, even when they are advertised by large, well-established companies with a global following. B

Endnotes 1 TGA, “Pete Evans’ company fined for alleged COVID-19 advertising breaches” (24 April 2020): https://www.tga.gov.au/media-release/ pete-evans-company-fined-alleged-covid-19advertising-breaches; TGA, “Peter Evans Chef Pty Ltd fined $79,920 for alleged unlawful advertising (25 May 2021): https://www.tga.gov. au/media-release/peter-evans-chef-pty-ltd-fined79920-alleged-unlawful-advertising 2 TGA, “Lorna Jane fined almost $40,000 for alleged advertising breaches in relation to COVID-19 and ‘anti-virus activewear’” (17 July 2020): https://www.tga.gov.au/mediarelease/lorna-jane-fined-almost-40000-allegedadvertising-breaches-relation-covid-19-and-antivirus-activewear 3 Lorna Jane, “Media Statement” (23 July 2021): https://www.lornajane.com.au/lorna-janemedia.html

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TAX FILES

Self-managed super funds: Beware of NALI! BRIONY HUTCHENS, DW FOX TUCKER LAWYERS

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on-arm’s length income, commonly referred to as NALI, is not a new concept for superannuation funds. However changes made to the provisions in 2018, combined with the Commissioner’s views as published in Law Companion Ruling 2021/2 as to how those changes apply, are causing significant concerns and potential tax implications for many superannuation funds.

What is NALI? A complying superannuation fund’s taxable income is split into 2 components – a low tax component which is taxed at 15%, and non-arms length income (NALI) which is taxed at the top marginal rate.

NALI is defined in section 295-550 of the Income Tax Assessment Act 1997 and can arise a number of different ways, including: • dividends received from a private company; • distributions from a trust other than by reason of holding a fixed entitlement to that income (e.g. distributions from a discretionary trust); • income derived from a non-arm’s length dealing; and • income derived from a trust as a result of holding a fixed entitlement to that income where either the entitlement was acquired under a non-arm’s length dealing, or the trust itself derived income under a non-arm’s length dealing.

Importantly, where a non-arm’s length dealing is required, that dealing must result in the relevant amount of income of the complying superannuation fund being more than would otherwise be expected had the parties been dealing at arm’s length.

2018 Amendments Section 295-550 was amended in 2018 to expand the definition of NALI (in so far as it relates to non-arm’s length dealings and income derived from a trust as a result of holding a fixed entitlement to

36 THE BULLETIN February 2022

that income) so that the relevant issue was not just the amount of income directly derived by the superannuation fund from that dealing or fixed entitlement, but also whether the superannuation fund, as part of a scheme involving the acquisition of the fixed entitlement or the gaining or producing of the income: • incurred a loss, outgoing or expenditure which was less than might have been expected had the parties been dealing at arm’s length in relation to the scheme; or • did not incur a loss, outgoing or expenditure that the entity might have been expected to incur if the parties had been dealing at arm’s length in relation to the scheme.

In each of the above instances, the effect is that the net income of the fund (i.e. income less expenses/deductions) would be greater than it would otherwise be, resulting in potential NALI. This significantly expanded the scope of NALI and brought into focus not just the income derived by superannuation funds, but also the expenses that the funds incurred. More significantly, the Commissioner’s views on how these provisions apply have the potential for income from a particular investment to be NALI for the life of the investment or, alternatively, for the whole of the income of the superannuation fund to be treated as NALI. LCR 2021/2 The Commissioner has released Law Companion Ruling 2021/2 which provides guidance on the application of the legislative changes referred to above.

This ruling is in addition to the previous Taxation Ruling 2006/7 (which is still valid and in force) which provides wider guidance in relation to the NALI rules in general.

The ruling addresses a number of issues in relation to the application of the non-arm’s length expenditure provisions.

Significantly, the ruling provides that:

•

•

•

•

there must be a sufficient nexus between the non-arm’s length expenditure and the relevant ordinary or statutory income; the relevant expenditure may be of a revenue or capital nature and does not have to be deductible under section 8-1 for the non-arm’s length expenditure provisions to apply; where the initial expenditure incurred to acquire an asset (including associated financing costs) is considered to be non-arm’s length, that expenditure taints all of the ordinary or statutory income derived by the superannuation fund in respect of that asset, including any capital gains on disposal of the asset, forever more. This remains the case even where any initial non-arm’s length borrowings are refinanced subsequently to be on arm’s length terms.

In some instances, the non-arm’s length expenditure will have a sufficient nexus to all of the ordinary and/or statutory income derived by the fund, meaning that all of the income of the fund could be NALI in the year in which the expenditure was incurred (or not incurred). Examples given include: ○ Certain actuarial costs ○ Certain accounting fees ○ Audit fees ○ Certain costs of complying with regulatory provisions under the Superannuation Industry (Supervision) Act 1993 ○ Fees and premiums under an indemnity insurance policy ○ Investment adviser fees and costs ○ Other administrative costs

Acquisition costs Some of the widest reaching implications from these amendments arise from the Commissioner’s position that any non-arm’s length expenditure in relation to the acquisition of an investment will cause all income and capital gains derived from that investment to be NALI for the life

TAX FILES

of the investment, regardless of whether the terms are subsequently amended or refinanced to be on arm’s length terms.

Examples of where non-arm’s length expenditure on acquisition of an investment could invoke the NALI provisions include: where the terms of the acquisition are not arm’s length, e.g. the superannuation fund pays less than market value for the acquisition; where any borrowing or finance obtained to fund the acquisition was on non-arm’s length terms. For this purpose, the Commissioner considers the relevant comparison to be terms that would be expected had the borrowing or finance been obtained from a commercial lending institution. In this regard, the Commissioner expresses a view that it is expected that an arm’s length arrangement would require: ○ commercial rates of interest; and ○ monthly repayments of both principal and interest.

In relation to the Commissioner’s requirement for monthly repayments of both principal and interest, it is noted that this seems to ignore various lending arrangements provided by commercial lending institutions including, for example, interest only loans, and therefore it remains to be seen whether the view that principal and interest payments are required for an arm’s length dealing is sustainable.

The types of examples given by the Commissioner to demonstrate a non-arm’s length borrowing or finance are generally focussed on related party borrowings, and include limited recourse borrowing arrangements under which any of the following is present: • a lower than commercial rate of interest is charged; • the amount of the loan exceeds commercial loan to market value ratios (e.g. if the fund borrows 100% of the purchase price and acquisition costs); • repayments are required to be made annually, not monthly; • repayments of principal are not required until the end of the loan term.

Further, as noted above, it is the terms of any borrowing or finance arrangement at the time of acquisition of the investment that are relevant. This means that any subsequent refinancing of the borrowings or finance arrangements

to be on arm’s length terms will not make any difference to whether the income from the investment is NALI. This is likely to results in a significant number of superannuation funds suffering NALI assessments from 2018 onwards in relation to investments made well before the amendments came into effect without any ability for the superannuation funds to rectify its position to avoid ongoing NALI consequences.

This approach is extremely harsh and a more reasonable approach would be for the income to be NALI for only so long as the non-arm’s length arrangements remain in place. Unless and until the Commissioner changes his approach, however, practitioners and clients need to be mindful of the consequences of the Commissioner’s stated position.

General expenditure Where the non-arm’s length expenditure does not relate to a specific asset, it can taint the income of the fund as a whole. Importantly, where the expenditure relates to services provided to the fund by a member or trustee of the fund, it must be determined whether those services were provided to the fund in the capacity as a trustee (including as a director of a corporate trustee), or in some other capacity. If they are provided in the capacity as trustee, then no expenditure is required for the services and the arrangement will not be non-arm’s length as a result of no fee being charged.

If they are provided in another capacity, however, then commercial rates of fees and expenditure must be charged in order to avoid NALI. The capacity in which the services are provided will be a question of fact in each case, but relevant considerations include the extent to which tools and equipment of a person’s business are used in providing the services, and whether the services are required to be provided by a person with a relevant licence or qualification.

Examples given of where general expenditure may cause problems include: • accounting services provided by an accountant or his or her accounting practice to that person’s superannuation fund (other than services provided to fund to in relation to compliance with and management of income tax affairs and obligations) for either no fee or

for a fee less than the discounted fee offered to staff; • renovations performed by a plumber to a rental property held by his or her superannuation fund for no consideration and performed using the equipment and staff of the plumber’s business. It is noted that in this example, it is only the rental income from that rental property that would be NALI, not all income of the fund; • property management services provided by a licenced real estate agent to his or her superannuation fund through their business for 50% of the market rate in circumstances where this is either less than the discounted rate or where the business does not have a discount policy for staff. It is noted that in this example, it is only the rental income from the properties that would be NALI, not all income of the fund.

Arguably, these sorts of arrangements, or at least some of them, would not have been caught by the NALI provisions pre amendment as they do not necessarily involve the superannuation fund “deriving” income from the arrangement, even though they indirectly result in the superannuation fund producing more income overall (as a result of reduced expenditure). The amendments therefore ensure that the rules will apply in these instances.

Conclusion The expansion of the NALI rules and, more particularly, the Commissioner’s views on how these rules apply, have the potential for wide reaching implications for many superannuation funds, and the harsh consequences of a perceived breach of the rules have caused a number of concerns amongst practitioners and clients alike. With regular audit activity for superannuation funds, it is likely that many funds are going to find themselves in the sights of the Commissioner. Practitioners and their clients should review any existing and proposed arrangements to determine whether those arrangements present any risk for the fund in light of the amendments, and whether any action is required to be taken in respect of those arrangements.

Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B February 2022 THE BULLETIN

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CASE NOTE

Deputy Commissioner of Taxation v Huang: High Court confirms broad and flexible approach to freezing orders over foreign assets STEPHANIE LO, SENIOR ASSOCIATE, LK LAW

I

n the recent decision of Deputy Commissioner of Taxation v Changran Huang [2021] HCA 43, a majority of the High Court of Australia confirmed the Federal Court of Australia’s power to make freezing orders over assets outside of Australia did not require proof that there be a realistic possibility of enforcement of a judgment debt in each foreign jurisdiction to which the proposed order relates.

The Deputy Commissioner of Taxation filed proceedings in the Federal Court of Australia against Mr and Mrs Huang - who had been tax residents in Australia since 2013, but who had moved to the People’s Republic of China (PRC) in 2018-2019 seeking summary judgment with respect to a tax penalty of approximately $140.9 million with respect to the 2013, 2014 and 2015 financial years. To preserve the status quo, freezing orders which applied to assets held by Mr Huang in Australia, the PRC and Hong Kong were made by a single Judge.

Appeal to the Federal Court: no realistic possibility of enforcement in the PRC or Hong Kong Before the Full Court of the Federal Court in Huang v Deputy Commissioner of Taxation (2020) 280 FCR 160; [2020] FCAFC 141, Mr Huang sought to challenge the orders against him relating to assets outside of Australia. Amongst other things, Mr Huang asserted that the primary judge erred by failing to find that a freezing order in respect of Mr Huang’s assets outside Australia was beyond power, in that it would not serve the purpose of preventing or inhibiting the frustration of the Court’s process within the meaning of rule 7.32(1) of the Federal Court Rules 2011 (Cth) (“the Rules”).

Rule 7.32 of the Rules is in the following terms:

38 THE BULLETIN February 2022

•

the Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

• a freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

The Full Court of the Federal Court (Besanko, Thawley and Stewart JJ) held that there must be a “realistic possibility” that any judgment obtained by a plaintiff can be enforced against assets of the defendant in the place to which the proposed freezing order related. In considering whether there was such a “realistic possibility” in Mr Huang’s circumstances, their Honours considered that there was no realistic possibility that the Deputy Commissioner’s judgment debt would be enforceable in the PRC or Hong Kong. Accordingly, the appeal was allowed and the freezing orders challenged by Mr Huang were varied to remove Hong Kong and the PRC. The Deputy Commissioner appealed to the High Court.

The High Court: freezing order power not constrained by proof of a “realistic possibility” of enforcement The High Court by a majority (Gageler, Keane, Gordon and Gleeson JJ, with Edelman J dissenting) held that the Full Court of the Federal Court had asked itself the “wrong” question in considering whether there was a realistic possibility that the prospective judgment could be enforced against the defendant’s assets in any relevant foreign jurisdiction. The

majority held that the correct question to be asked in determining whether the Court had power to make such a freezing order was whether the order would seek to meet a danger that the prospective judgment will be wholly or partly unsatisfied and that the power conferred by rule 7.32 is a broad and flexible one (at [31]).

In their analysis of the power conferred by rule 7.32, their Honours concluded that rule 7.32: • is subject to two express limitations set out in the rule – the purpose of the order must be “the purpose of preventing the frustration or inhibition of the Court’s process” and the order must address that purpose “by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied”: [17] and [18]; • explicitly contemplates that a freezing order may apply to assets located outside Australia: [19]; • did not require the Court to be satisfied of the matters set out in rule 7.35 (which allows the Court to make a freezing or ancillary order against a judgment debtor or prospective judgment debtor or third party) in deciding to make a freezing order under rule 7.32: [21]; • is not to be read as requiring a further requirement of possible efficacy of the freezing order: the rule does not say this, there is no reason to imply an unexpressed limitation on the scope of the power, such a requirement would be inconsistent with the in personam nature of a freezing order and would restrict the power in a manner that would significantly impair its capacity to protect the Court’s processes: [23]-[26].

In the course of their reasons, the majority noted that the Full Court had

CASE NOTE

ignored the other ways that a judgment may eventually be satisfied and that a defendant may be induced by the inconvenience of a freezing order to comply with the Court’s process: [27]. It was also held by the majority that a requirement for proof of a realistic possibility of enforcement was effectively inconsistent with the power to make freezing orders over assets in foreign jurisdictions – it would necessitate identification of the defendant’s foreign assets as well as the potential means of enforcement in that foreign jurisdiction: [28].

However, the majority did acknowledge that the likely utility of a freezing order is undoubtedly relevant to the exercise of the Court’s discretion to grant the order – for example, a court may decline to make a freezing order in circumstances where a defendant is outside of Australia and is likely to ignore any such order.

Edelman J dissented, finding that the Full Court of the Federal Court was correct in concluding that such a freezing order could not be made.

While his Honour agreed with the majority on the express requirements of rule 7.32, his Honour dissented on the basis that: (i) the purpose of “preventing the frustration or inhibition of the Court’s process” required an applicant to identify the process of the Court that would be frustrated or inhibited; and (b) if there is no realistic possibility that any process of the Court would be frustrated or inhibited without the freezing order, then it followed that the Court cannot be acting for the purpose of preventing the frustration or inhibition of the Court’s process: [40].

As such, since there was no realistic possibility of any enforcement against Mr Huang in the PRC or Hong Kong, a freezing order over his assets in those

jurisdictions “could not have had the purpose of preventing or frustrating the enforcement process of the Federal Court”: [44].

Notwithstanding his position, his Honour recognised that the decision of the majority had “salutary commercial consequences” (at [33]).

Observations Although the High Court accepted that it was not a requirement that there be a realistic possibility of enforcement in a foreign jurisdiction in order for the Federal Court to make a freezing order over assets in that foreign jurisdiction, this does not mean that such a consideration is irrelevant in the exercise of the discretion to make such freezing orders. In seeking such orders, parties should consider whether such an order would have utility in circumstances where a defendant outside the jurisdiction could effectively ignore such orders. B

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RISK WATCH

Culturally and Linguistically Diverse Clients: Ongoing Challenges for Lawyers (Part 2) GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

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he previous article (December 2021) addressed some of the issues arising from clients involved in Court proceedings where those client have problems understanding English. This article deals with language and cultural issues in nonlitigious matters.

An interesting demonstration of the difficulties which can arise where both language problems and a lack of understanding of aspects of culture led to problems can be found in Li v Choi [2020] QCA 131. Xin Li was a Chinese National with substantial investments in Queensland who spoke little English. In March 2017 he was in a hospital on the Gold Coast in the last stages of terminal lung cancer. A business associate, Doris Choi (who spoke English and Mandarin) and Mr Li’s nephew were supporting him through the last stages of his illness. Ms Choi arranged for a solicitor, Ms Lloyd to come to the hospital after Mr Li asked about the preparation of a will. Ms Lloyd told Ms Choi that Mr Li needed to name beneficiaries and specify the proportions of the estate for each beneficiary. Mr Li’s response (relayed to Ms Lloyd by Ms Choi) was that there should be four beneficiaries—Mr Li’s two daughters and his two sisters. As to the proportions, Mr Li said that he “hoped everyone would agree.” Whilst this might seem strange to Australian lawyers, the Court quoted Article 15 of the Law of Succession of the People’s Republic of China which provides that questions pertaining to succession should be dealt with through consultation by and amongst the successors in the spirit of mutual understanding and mutual accommodation and the time and mode for partitioning the estate shall be decided by the successors through consultation.

Later that day Ms Lloyd visited Mr Li’s hospital room with a draft will—written in English—she had prepared. The draft will provided that the estate would be distributed equally between the four beneficiaries although it was set out in such a way as to allow different proportions to be inserted.

The relevant discussions took place between Ms Choi and Mr Li in Mandarin. Ms Lloyd did not understand what passed between

40 THE BULLETIN February 2022

Ms Choi and Mr Li, and Mr Li did not understand what passed between Ms Choi and Ms Lloyd in English. Upon Ms Lloyd entering the hospital room Mr Li asked for the will and signed it immediately. He then wrote a note to confirm that his estate was to be given to the four beneficiaries but as to the proportions he wrote “not yet decided.” Ms Lloyd said that she could not do that. After some more discussion, Mr Li crossed out the word “equally” and initialled the change.

Probate of the will was initially granted to Ms Choi as executor and trustee, however an application was made to the Queensland Supreme Court to revoke the grant of probate which was successful, leaving Mr Li’s estate to be administered according to the rules of intestacy. The Court of Appeal dismissed an appeal against the revocation of the grant of probate.

Although it is not clear from the Court of Appeal judgment it appears that the litigation was, in effect, a contest between Mr Li’s daughters and Mr Li’s sisters. This is because the Queensland Rules of Intestacy provide for the estate to be distributed first to spouses (there was no spouse) and children. Only if there is no spouse or issue will the estate go to parents, siblings etc. If the will stood then notwithstanding the deletion of the word “equally” the daughters and sisters would share in equal proportions, however if the will was not granted probate then only the daughters would share in the estate.

The Judges concluded that Mr Li did not understand Ms Choi’s explanation that the will—even in its altered form—would result in an equal distribution between the beneficiaries and did not understand or approve of a document which provided for an equal distribution to the beneficiaries as his last will.

A commentator (Lindsay Chan of Mitchells Solicitors in Queensland) has noted in respect of this case that in China wills are rarely written because “[a]cknowledging death by writing about it is considered highly superstitious and is believed to bring death closer. Although most people have thought about what will happen to their estate when they die, these intentions are spoken rather than written down to avoid luck.” This consideration

of culture may help explain Mr Li’s apparent reluctance to finalize the proportions of the distribution of his estate.

Mr Chan helpfully concludes his commentary as follows: “It’s equally important that an independent translator is employed who isn’t known to the testator. One who can be relied on to explain the traditions of the testator’s culture and can pass on instructions as an intermediary, without the solicitor feeling like a stranger at the party.

Finally, if amendments are needed then they should be amended urgently. If the solicitor had stayed until she was satisfied that Xin Li understood the repercussions of his handwritten amendments and additions then Xin Li may have been persuaded that good luck comes to those who are prepared.”

Whilst this case did not involve a claim against Ms Lloyd, it doesn’t take much imagination to see the risks to solicitors from situations where language and cultural considerations are not properly taken into account. Law Claims has seen several claims of this nature over the last few years. In one matter the Insured practitioner spoke Mandarin (but was not a professional interpreter) and took instructions from a testator who only spoke Mandarin. Due to difficulties in translating the instructions the will that was prepared by the Insured’s employed solicitor did not reflect the testator’s instructions. In the other matter a will was prepared on behalf of a testator who spoke a little English but could only read Greek, i.e. they were effectively illiterate when it came to reading English. The Insured practitioner did not write Greek and the will was prepared in English. The will was challenged by one of the beneficiaries who alleged that the will could not have reflected the testator’s true intentions because of the language difficulties.

The safest course will always be to use independent, professional translating services whenever there is any doubt about the ability of clients to understand the legal issues involved and to give proper instructions.

APPOINTMENTS

Recent judicial appointments in SA

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he Society welcomes recent judicial appointments in South Australia.

Retired District Court Judge Michael Bolan QC has been appointed Judicial Conduct Commissioner for South Australia.

Mr Boylan commenced the role on 7 January, replacing Acting Judicial Conduct Commissioner Bruce Debelle AO QC, who had acted in the role since October last year, following ICAC Commissioner Ann Vanstone’s resignation form the role.

Mr Boylan was appointed Queen’s Counsel in December 2002, was appointed to the bench in 2005 and retired earlier this year.

Mr Boylan’s term will expire on 6 January 2025.

Anthony Allen QC has been appointed as a Judge of the District Court, filling the vacancy left by Judge Patrick O’Sullivan, who was appointed as a Judge of the Federal Court of Australia.

Minister Josh Teague, who is acting as the minister for the Attorney General, said: Judge Allen has had a career

“spanning more than 20 years, much of it practising criminal law.”

“This includes time working as a prosecutor in the Office of the South Australian Director of Public Prosecutions, as a Partner with Mangan Ey & Associates and as a Barrister with the Legal Services Commission, prior to a distinguished career at the Independent Bar.” Judge Allen commenced in the District Court on 17 January.

Judge O’Sullivan commenced his role as Judge of the Federal Court of Australia on 20 January.

He was admitted as a solicitor and barrister in the Supreme Court of South Australia in 1981. He was appointed Crown Counsel for the Hong Kong Government in 1988 and later Senior Crown Counsel in 1990.

Judge O’Sullivan was appointed Queen’s Counsel in 2008 and was appointed as a judge of the District Court of South Australia in 2018.

“I thank Judge O’Sullivan for his

contribution to the District Court and look forward to seeing Anthony Allen’s contribution over the coming years,: Minister Teague said.

Emily Telfer QC has been appointed Judge of the District and Environment, Resources and Development Court, commencing on 24 January.

Judge Telfer has had more 20 years of experience in the criminal law across both trial and appellate work, including in the Supreme Court, Court of Criminal Appeal and the High Court.

Emily began her legal career as Associate to Justice Margaret Nyland in the Supreme Court of South Australia (1997), and reunited with Justice Nyland when she was appointed counsel assisting the the Child Protections Systems Royal Commission from 2014-2016.

Judge Telfer worked at the Legal Services Commission from 1998-2000, and the the Office of the Director of Public Prosecutions from 2000-2014, and then 2016-2020. B

February 2022 THE BULLETIN

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OPINION

A call to arms: Why we need to lift our pro bono contribution in SA ALICE ROLLS, HEAD OF POLICY AND STRATEGY, AUSTRALIAN PRO BONO CENTRE Most South Australian lawyers love a bit of interstate rivalry, particularly when it comes to comparing our commute times and the quality of our wines with those on offer in the eastern states. However, when it comes to our collective pro bono contribution, we are falling well behind.

T

he Australian Pro Bono Centre recently released its 14th Annual Performance Report of the National Pro Bono Target.1 The National Pro Bono Target is a voluntary and aspirational target of at least 35 hours of pro bono legal services per lawyer per year.2 All Target Signatories are required to report on their performance against the Target each financial year. The Centre then uses this data to produce an annual performance report on the Target.

The positive news in the latest performance report was that Australian lawyers nationally increased their pro bono contribution in FY2021 by more than 90,000 hours to 642,000 hours (representing a 16.4% increase in one year). This was the equivalent of 357 lawyers working full time for one year.

However, where things get a bit embarrassing for South Australia is the fact that the Centre for the first time tracked and reported on the number of hours of pro bono work undertaken by lawyers in each Australian state and territory. In South Australia, we contributed 8,758 pro bono hours in FY2021. This was of course a significant and generous contribution of scarce resources to those in our community who would otherwise have been without legal assistance – but it represented only 1.35% of the total number of pro bono hours donated by lawyers nationally during that period.

Well, I hear you say, we are a much smaller state and we have fewer lawyers here, right? That is certainly the case

when you compare the number of practising solicitors in South Australia (3,836) to those in NSW (35,718) and Victoria (21,118).3 Practising solicitors in South Australia only represent 5% of all practising solicitors across our great nation.

However, the fact is that we have 5% of all practising solicitors here in South Australia but our reported pro bono contribution is only 1.35% of the national total.

Compare this to NSW, which has 43% of the nation’s practising solicitors and contributes 44% of the nation’s pro bono hours. Or Victoria, which has 25% of the nation’s practising solicitors and contributes a whopping 32% of the nation’s pro bono hours. In fact, there is only one state which contributes less than South Australia when we take into account the number of practising solicitors and that’s Tasmania.

Surely we can do better than this?

South Australia punches above its weight when it comes to most fields of endeavour and particularly in terms of democracy and human rights. Our lawyers are smart and passionate about the communities within which they live and work. Why have we dropped the ball when it comes to pro bono?

This is a call to arms for the South Australian legal profession! Let’s increase our pro bono contribution in the coming year so that it at least represents the 5% of the national profession that we constitute.

Putting to one side the ethical and professional responsibility to help others

and the fact that it feels good to do so, the benefits of embedding pro bono into a lawyer’s practice are many. These include reputation and client relationship benefits for individual lawyers, firms and organisations which can demonstrate their commitment to corporate social responsibility, as well as training and human resources benefits. Becoming a Target signatory is also relevant to law firms that tender for Commonwealth and South Australian government legal work.

As the CEO of the Australian Pro Bono Centre, Gabriela Christian-Hare, recently said, ‘The question is no longer ‘Why should we do pro bono?’. It’s ‘Why shouldn’t we do pro bono and how can we integrate it more effectively into the DNA of our organisation?’.

If you or your firm, organisation or government department has not yet signed up to the National Pro Bono Target, please consider doing so. You can find more information about the Target and about pro bono best practice at the Centre’s website: www.probonocentre.org. au. Alternatively, please don’t hesitate to contact me.

Alice Rolls is Head of Policy and Strategy at the Australian Pro Bono Centre. She was previously a principal at LK Law in Adelaide and a Managing Lawyer of The Accessible Justice Project. B Endnotes 1 Australian Pro Bono Centre, 14th Annual Performance Report of the National Pro Bono Target, September 2021, available at https:// www.probonocentre.org.au/provide-pro-bono/ target/.

2 The 35 hours target applies to law firms, incorporated legal practices, individual solicitors, individual barristers and barristers’ chambers.

For in-house corporate and government lawyers, the target is 20 hours of pro bono legal services per lawyer per year.

3 Law Society of NSW 2020 National Profile of Solicitors, page 6.

February 2022 THE BULLETIN

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WELLBEING & RESILIENCE

Wellbeing Resolutions for 2022 Wellbeing & Resilience Committee members share some of their goals to foster and enhance their wellbeing for the year ahead.

AMY NIKOLOVSKI

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o say that the last two years have been exhausting is an understatement.

The three things I have set myself to try and circumvent what feels like inevitable burn out in the third year of a pandemic are as follows: Exercise Exercise and I have a love/hate relationship, in that I completely hate it and have no desire to do it, but know it’s good for me and I should do it. (Did you know I used to own a gym? Fortuitously I sold it in December 2019, but it was always a running joke that the “person least likely to exercise” was a Franchisee of Anytime Fitness for a while.)

This year though, I’ve promised myself 30 minutes a day, whether it be going for a walk or chasing my toddler around the park (it still counts), getting outside and doing something is on my “to do” list.

Stop doom scrolling As a business owner I tell myself that I need to stay up to date on all of the daily Government updates, it’s a moving feast, and I need to be abreast of everything.

Truthfully, I am a social media junkie and I go down too many rabbit holes, read too many articles and am signed up to all the email notifications I need to keep on top of the changes. The doom scrolling is a sick obsession that I developed in 2020 which I really need to cut off.

Say yes to more play With my toddler that is. I am steering clear of playing with people my own age (there’s this highly contagious virus about!).

I’m going to play cars with him whenever he asks (within reason) and care less about the mess. Play dough, paints and magic sand have made an appearance at our house this summer. I have had to set

44 THE BULLETIN February 2022

aside my concerns of all the “mess” and remember that they are only little once, soak up this time because the poor kid has lived almost all of his life in a weird pandemic which means he’s missed out on a lot of experiences, but playing at home with his mum is something he can get more than he would have had this crazy time never have occurred. (Although, I’m not liking the rules of his games... in that there never seem to be any defined, which is frustrating to say the least!)

EMILY MORTIMER The last two years have been a unique experience for everyone. For me it has taught me the importance of boundaries and focus. These are not easy goals for anyone to achieve but this year I am focusing on changing small habits for long lasting and positive change. One in particular is my end of day reflection being about what I did achieve rather than what I did not!

GEORGINA PORTUS My well-being goal for 2022, is to learn when I need to prioritise my own wellbeing over any commitment I may have made. Objects are not immovable when you ask for support.

TIM DIBDEN I propose to make it through the year without contracting COVID if possible.

I will make changes to my office procedures to spend the least amount of time in actual courtrooms to achieve this.

I will continue to assist practitioners who I know to be struggling and to seek help myself whenever things seem to become too much.

I will be sticking to my New Year’s resolution to commit more time to riding

my bike, in the hope of improving my well-being overall and keeping fitter than last year.

On the whole I like to remind myself that we live in the best place in the best country and to live my best life.

STEPHANIE LO My wellbeing goals for this year are to be more present and to spend less of my free time on screens.

ROSA TORREFRANCA In any given year, I am either making New Year resolutions of some sort and breaking (or forget) them before the end of January, or I accept that I am hopeless at it and don’t make any resolutions at all.

I am one of those who make ridiculous or perhaps unattainable resolutions (for my circumstances). It included, no word of a lie, not buying clothes for a whole year (lasted 4 days), learning how to speak Japanese and French, and learning how to knit and sew my own clothes.

One wise person once said that we are never successful in keeping our New Year Resolutions because resolutions always involve giving up things we love or doing things we hate or do not particularly enjoy.

Recently, I read about people not making resolutions but instead having a “word of the year” to set their intention for the year. It is supposed to be your reminder or your guide on how to make decisions throughout the year, and what your mindset will be for the year. It is what you repeat to yourself in times of difficulties and what guides you towards a “happier, healthier outlook”.

So my resolution will be to not have a resolution but to have my word of the year. Does that count as a resolution?

(Note that I am still undecided what word it will be!)

EDWIN FAH My 2022 wellbeing goal is: to let more things go. We are, and have been, living

WELLBEING & RESILIENCE

in very uncertain times over the past two years. That uncertainty has caused people to act in irrational ways, and ways that I imagine they would not have acted prior to 2020. I have realised over the past two years that seeking to understand such inconsistencies is not generally helpful for most people.

ZOE LEWIS A silver-lining to come from living through a pandemic is the renewed focus on who and what really matters to us.

Maybe having an immaculate house, or a higher income, or a six-pack, don’t matter to us as much as we once thought. When

MEMBERS ON THE MOVE LUCY SIMEONI

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ace Lawyers Adelaide Legal are proud to announce that Shavin Silva has been promoted to Special Counsel, effective 1 January 2022. Since joining the firm, Shavin has excelled as a Commercial and Corporate Advisory and Litigation lawyer. Principal Lawyer and Director Serina Pace said: “Shavin’s contribution to the business has been significant in his 9 years with the firm, and we are looking forward to building our business relationships working with Shavin in his new position moving forward”.

Pace Lawyers Adelaide Legal are also delighted to announce the recent appointments of lawyers Nicola Schroeder and Felicia Dianos to the firm. Nicola joins the Family and Personal Injury law team and Felicia will be working principally with the Commercial and Corporate Advisory, Employment and Estate Planning team. Principal Lawyer and Director Serina Pace said: “We are excited to formally welcome Nikki and Felicia to the Pace Lawyers Adelaide Legal team, and look forward to being part

we have to limit who we see and where we go, and when lots of choices are made for us, the lens becomes much more focussed.

My goal this year is to stay in touch with that question of what it is that truly matters to me in both my professional and personal lives, so that I don’t waste time and energy on the wrong things.

SHAVIN SILVA

NICOLA SCHROEDER

FELICIA DIANOS

NICHOLAS MCCANN

KAYLA COSTA

RENEE HII

of their growth and development in the profession in the years to come”.

WRP Legal & Advisory are excited to announce latest promotions and appointments as of 1 January 2022.

Lucy Simeoni has been appointed as a director. Lucy regularly assists small to large private enterprises and high net worth individuals across varying industries and has extensive experience in: • Taxation, including income and capital gains tax, GST, stamp duty and payroll tax • Taxation disputes, at both state and federal levels • Business structuring and restructuring • General corporate, commercial, trust and partnership law • Business acquisition and sales • Charities and not-for-profit law Nicholas McCann has been appointed as a Senior Associate. Nick has extensive experience in taxation advisory as well as tax dispute resolution and lodging submissions with federal and state revenue authorities. Nicholas regularly

advises on commercial transactions, in particular: • Taxation planning and structuring • Asset acquisitions and disposal • Taxation compliance (at both federal and state level) • Restructures and transactional advice • Not-for-profit organisations, restructures, and transactional advice Kayla Costa has been appointed as a Commercial Lawyer, commencing Monday 17th January 2022. Kayla is a commercial, tax and IP lawyer, with a double degree in law & commerce. Kayla has a keen interest in providing clients with efficient and practical solutions on matters including commercial transactions, franchising, financing, and obligations, along with compliance with ASIC, ASX and Austrac.

Renee Hii has been appointed as a Litigation Associate, commencing Monday 24th January 2022. Renee is an experienced litigation lawyer, with experience in preparing and reviewing commercial contracts, and managing clients’ operations, Renee holds a double degree in law & commerce.

February 2022 THE BULLETIN

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FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK Property – Error to exclude latent CGT liability where evidence indicated sale of investment property would occur in near future n Shnell & Frey [2021] FedCFamC1A 55 (5 November 2021), the Full Court (Watts, Austin and Tree JJ) considered a wife’s appeal against an order that each party retain their respective property.

The wife argued that it was not possible to discern how the decision was reached and that the rejection of the capital gains tax (CGT) on the possible sale of a property owned by her as a liability was in error.

The Full Court said (from [64]): “The primary judge placed the value of the wife’s Suburb L property on the balance sheet at its current value but rejected the wife’s submission that the latent CGT on that property also be included. … [T]he primary judge indicates … that she took the latent CGT into account when adjusting prospective factors.

[65] There was no controversy that if the wife’s Suburb L property was sold today then the CGT payable upon the distribution of the property would be $290,029 … (…)

[76] … [T]he primary judge erred in failing to find that the sale of the property ‘would probably occur in the near future’ … [and] failed to recognise the undisputed evidence that this was an investment property held by the wife and had always been rented out. (…)

[79] … [A]lthough it is true that the ultimate selling price might not be known, the value of the property was placed on the

I

46 THE BULLETIN February 2022

balance sheet at the date of the hearing and the latent CGT at that date was known. …

[80] … [T]he primary judge’s finding that the wife had made a concession in cross-examination which precluded the wife from relying upon the second limb of Rosati, was erroneous. Had the primary judge not made that error, it would have been appropriate for the primary judge to have included the latent CGT onto the balance sheet …”

The appeal was allowed and the discretion was re-exercised to reduce the asset pool by the wife’s latent CGT liability.

The husband was ordered to pay costs.

Property – Kennon – Wife fails to establish that a contribution based adjustment for “systematic family violence” should then be quarantined under s 75(2) In Loncar [2021] FedCFamC1A 14 (21 September 2021), the Full Court (Strickland, Ainslie-Wallace & Watts JJ) heard a wife’s appeal from final property orders made by Judge Kemp.

After a 12 year relationship, Judge Kemp found that “the husband subjected the wife to a systematic pattern of family violence” ([16]) and made a 7.5 per cent adjustment for her Kennon claim and a further 10 per cent based on 75(2) factors ([28]).

The wife argued that as the contribution assessment was based on violence by the husband towards her, Judge Kemp erred in not quarantining the contribution adjustment from consideration at the third stage.

The Court said (from [61]): “… [I]n our view the application of

the principles articulated in Kennon does not fall within the same rubric as the approach applied in the cases relied upon by the wife, which are claims in tort.

[62] In 1975 the Act deliberately set out to exclude conduct from the assessment of financial adjustment between the parties.

The Family Court in Kennon carved out an exception to that general proposition by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party. Given that the acknowledgement is made in respect of contributions, the consideration of a Kennon claim axiomatically happens at the second step although the ongoing effects of family violence maybe a relevant prospective consideration at the third step.

[63] … [T]here is no warrant in s 75(2) (b) to discount the outcome of the analysis under s 79(4)(a)–(c) of the Act based on a Kennon argument. Nor in our view does s 75(2)(o) or s 79(2) create scope for the approach suggested by the wife.

[64] … [W]e find the primary judge did not err in failing to quarantine the 7.5 per cent the wife achieved as a result of her Kennon argument …”

The wife’s appeal was dismissed and no order was made as to costs.

Children – Interim return of children to mother after her unilateral relocation – Paucity of evidence of father’s work hours indicative of the children being in primary care of paternal grandparents In Leandra & Randles [2021] FedCFamC1A 51 (5 November 2021), Ainslie-Wallace J heard a mother’s appeal against interim parenting orders providing

FAMILY LAW CASE NOTES

for 6 and 3 year old children to live with the father in Town D. The mother had unilaterally relocated with the children to Suburb F, two and a half hours away. Judge Terry ordered that the children return to live with the father.

As the appeal was allowed by consent, the parties asked the Court to determine the interim parenting arrangements.

As to the father’s availability to care for the children, the Court said (from [38]): “… There was no challenge to the mother’s account of the father’s working pattern before they separated, that is, he would be away a week or perhaps more at a time. (…)

[46] The mother’s evidence was that since the children have lived with the father they have in fact lived with their paternal grandparents … (…)

[50] … The sum total of the father’s evidence about his hours of work is … opaque at best … The father’s failure to … give detailed evidence on this issue is inexplicable …”

The Court concluded (from [80]): “I am thus of the view that these children’s best interests are served by their being returned to their mother’s care pending the final hearing. … I am conscious that it will necessarily involve another move for these two very little children whose residence has already changed twice … However … I am of the view that a return to the primary care of the mother will best serve the children’s best interests as opposed to stability in their present living arrangement.

[81] … [G]iven the paucity of evidence

of the father’s working hours and the arrangements made for the children in his absence, it seems likely that children are more likely than not spending substantial time in their grandparents care …

[82] … I will order that within seven days of the date of these orders, the children be returned to the mother’s care…”

Children – Maternal aunt considered inappropriate as mother’s litigation guardian, despite her existing appointment as mother’s guardian

by SACAT In Remington [2021] FedCFamC2F 99 (27 September 2021), Judge Kari heard an application for the appointment of a litigation guardian for the mother in parenting proceedings in respect of an 11 month old child “X”.

The 27 year old mother had been diagnosed with a number of cognitive impairments and was the subject of state guardianship and administration orders appointing the maternal grandmother and the maternal aunt as guardians and limited administrators of the mother. There had been numerous police interventions involving the mother’s behaviour towards the maternal grandmother and aunt.

The maternal grandmother sought orders providing for X to live with her and for her to have sole parental responsibility.

The presumed father was not party to the proceedings and his whereabouts were unknown. The maternal aunt (“Ms E”) initially participated in the proceedings as the “legal guardian” of the mother.

After reviewing the report prepared by the State Welfare authority, Judge Kari said (from [53]):

“… I am satisfied: That the mother does not understand the nature of these proceedings nor the possible consequences of these proceedings; and That the mother is not capable of adequately conducting, or giving adequate instructions for the conduct of these proceedings. (…)

[57] The issue however is that … the maternal aunt appears to have an interest in the litigation that is adverse to that of the mother … I have come to this conclusion for two reasons, firstly because Ms E has advised the court … that she supports the application of the maternal grandmother. Secondly, as a consequence of the … report from the Department for Child Protection … which makes it clear that Ms E and the maternal grandmother work together to manage the competing obligations that they have towards the mother and the care of the child.

[58] It is for all of these reasons that I do not consider it appropriate that the maternal aunt, Ms E be appointed as the litigation guardian of the mother. (…)

[62] … [T]he administration order that has been made relates specifically to the conduct of legal proceedings, being a personal injury claim …

[63] While the orders made by SACAT would entitle either the maternal grandmother or the maternal aunt, Ms E to be appointed as the mother’s litigation guardian … it is my firm view that either of those persons are inappropriate given their conflicting interests.”. B February 2022 THE BULLETIN

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GAZING IN THE GAZETTE

3 NOV 2021 – 2 JAN 2022 ACTS PROCLAIMED Health Practitioner Regulation National Law (South Australia) (Telepharmacy) Amendment Act 2021 (No 41 of 2021) Commencement: 1 December 2021 Gazetted: 25 November 2021, Gazette No. 76 of 2021 Oaths (Miscellaneous) Amendment Act 2021 (No 31 of 2021) Commencement: 1 December 2021 Gazetted: 25 November 2021, Gazette No. 76 of 2021 South Australian Multicultural Act 2021 (No 39 of 2021) Commencement: 2 December 2021 Gazetted: 2 December 2021, Gazette No. 78 of 2021 Statutes Amendment (Gambling Regulation) Act 2019 (No 44 of 2019) Commencement s128: 9 December 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021 Criminal Law Consolidation (Driving at Extreme Speed) Amendment Act 2021 (No 28 of 2021) Commencement except ss 7 and 8: 16 December 2021 Gazetted: 16 December 2021, Gazette No. 81 of 2021 Mutual Recognition (South Australia) (Further Adoption) Amendment Act 2021 (No 54 of 2021) Commencement: 20 December 2021 Gazetted: 16 December 2021, Gazette No. 81 of 2021 Correctional Services (Accountability and Other Measures) Amendment Act 2021 (No 12 of 2021) Commencement ss 5; 9; 11; 12(3); Sch1 cl2: 19 January 2022 Gazetted: 23 December 2021, Gazette No. 82 of 2021 Firearms (Miscellaneous) Amendment Act 2021 (No 44 of 2021) Commencement: 24 December 2021 Gazetted: 23 December 2021, Gazette No. 82 of 2021

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

Legislation Interpretation Act 2021 (No 36 of 2021) Commencement: 1 January 2022 Gazetted: 23 December 2021, Gazette No. 82 of 2021

Amendment Act 2021, No. 42 of 2021 (amends Motor Vehicles Act 1959 and Highways Act 1926) Gazetted: 4 November 2021, Gazette No. 72 of 2021

Statutes Amendment (Local Government Review) Act 2021 (No 26 of 2021) Commencement ss 79(3) to (5); 80(3) to (5) and (7); 82, but only insofar as it designates the current content of s 125 of Local Government Act 1999 as subsection (1) and inserts subsection (2) into that section; 87(3); 90(1); 95; 98; 126, but only insofar as it inserts the following into Local Government Act 1999:

Emergency Management (Electricity Supply Emergencies) Amendment Act 2021, No. 43 of 2021 Gazetted: 25 November 2021, Gazette No. 76 of 2021

i. the heading to Chapter 13 Part A1; ii. the heading to Chapter 13 Part A1 Division 2; iii. the heading to Chapter 13 Part A1 Division 2 Subdivision 2; iv. section 262F heading and (3) to (6) (inclusive): 6 January 2022 Commencement s 79(2) and (8): 30 April 2022 Commencement ss 8; 9; 17; 55; 147(1) - (3): 30 June 2022 Commencement s 79(1): 30 June 2023 Commencement ss 5(9); 93; 94(1): 31 August 2023 Commencement ss 5(8); 59; 81; 82, but only insofar as it inserts subsection (3) into s 125 of Local Government Act 1999; 83 85; 87(1) and (2); 88(3); 89; 141(3) and (6); 195: 30 November 2023 Gazetted: 23 December 2021, Gazette No. 82 of 2021

ACTS ASSENTED TO Constitution (Independent Speaker) Amendment Act 2021, No. 40 of 2021 Gazetted: 4 November 2021, Gazette No. 72 of 2021 Health Practitioner Regulation National Law (South Australia) (Telepharmacy) Amendment Act 2021, No. 41 of 2021 Gazetted: 4 November 2021, Gazette No. 72 of 2021 Motor Vehicles (Electric Vehicle Levy)

Firearms (Miscellaneous) Amendment Act 2021, No. 44 of 2021 Gazetted: 25 November 2021, Gazette No. 76 of 2021 Unclaimed Money Act 2021, No. 45 of 2021 (repeals Unclaimed Moneys Act 1891) Gazetted: 25 November 2021, Gazette No. 76 of 2021 Sentencing (Hate Crimes) Amendment Act 2021, No. 46 of 2021 Gazetted: 25 November 2021, Gazette No. 76 of 2021 Statutes Amendment (Spit Hood Prohibition) Act 2021, No. 47 of 2021 (amends Correctional Services Act 1982, Mental Health Act 2009, Sheriff ’s Act 1978, Summary Offences Act 1953 and Youth Justice Administration Act 2016) Gazetted: 25 November 2021, Gazette No. 76 of 2021 Aquaculture (Tourism Development) Amendment Act 2021, No. 48 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021 Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Act 2021, No. 49 of 2021 (amends Road Traffic Act 1961 and Motor Vehicles Act 1959) Gazetted: 9 December 2021, Gazette No. 80 of 2021 Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Act 2021, No. 50 of 2021 (amends Fair Trading Act 1987 and Small Business Commissioner Act 2011) Gazetted: 9 December 2021, Gazette No. 80 of 2021

GAZING IN THE GAZETTE

Suicide Prevention Act 2021, No. 51 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021 Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021, No. 52 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021

Legal Services Commission Chairperson/Member from 1 January 2022 until 19 January 2023 Peter Damian Slattery Gazetted: 25 November 2021, Gazette No. 76 of 2021

Statutes Amendment (Strata Schemes) Act 2021, No. 53 of 2021 (amends Community Titles Act 1996 and Strata Titles Act 1988) Gazetted: 9 December 2021, Gazette No. 80 of 2021

Supreme Court of South Australia Puisne Judge effective from 29 November 2021 Adelaide, 25 November 2021 Sandra McDonald SC Gazetted: 25 November 2021, Gazette No. 76 of 2021

Mutual Recognition (South Australia) (Further Adoption) Amendment Act 2021, No. 54 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021

Her Majesty’s Counsel in the State of South Australia Jarrod Kane Warren SC Gazetted: 25 November 2021, Gazette No. 76 of 2021

Children and Young People (Safety) (Inquiry into Foster and Kinship Care) Amendment Act 2021, No. 55 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021

Youth Court Magistrate From 3 January 2022 Principal judiciary From 3 July 2022 Ancillary judiciary Todd Matthew Grant Gazetted: 25 November 2021, Gazette No. 76 of 2021

Social Workers Registration Act 2021, No. 56 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021 Statutes Amendment (Child Sexual Abuse) Act 2021, No. 57 of 2021 (amends Criminal Law Consolidation Act 1935, Criminal Procedure Act 1921, Evidence Act 1929, Sentencing Act 2017, Summary Offences Act 1953 and Young Offenders Act 1993) Gazetted: 9 December 2021, Gazette No. 80 of 2021 Coorong Environmental Trust Act 2021, No. 58 of 2021 Gazetted: 9 December 2021, Gazette No. 80 of 2021

APPOINTMENTS Commissioner Environment, Resources and Development Court of South Australia commencing on 15 November 2021 Helen Louise Dyer Gazetted: 11 November 2021, Gazette No. 73 of 2021

From 6 January 2022 Justin Peter Wickens From 17 January 2022 Edward Paul Stratton-Smith Gazetted: 23 December 2021, Gazette No. 82 of 2021 Magistrate South Australian Civil and Administrative Tribunal Member Youth Court of South Australia Ancillary Magistrate South Australian Civil and Administrative Tribunal Member From 6 December 2021 Roderick Neil Jensen Gazetted: 2 December 2021, Gazette No. 78 of 2021 From 6 January 2022 Justin Peter Wickens

From 17 January 2022 Edward Paul Stratton-Smith Gazetted: 23 December 2021, Gazette No. 82 of 2021 Police Disciplinary Tribunal Panel Member: Protective Security Officers Disciplinary Tribunal Panel Member: from 6 December 2021 until 28 April 2023 Roderick Neil Jensen Gazetted: 2 December 2021, Gazette No. 78 of 2021 From 6 January 2022 Justin Peter Wickens From 17 January 2022 Edward Paul Stratton-Smith Gazetted: 23 December 2021, Gazette No. 82 of 2021 Office for Public Integrity Director From 7 January 2022 Emma Michelle Townend Gazetted: 16 December 2021, Gazette No. 81 of 2021 Judicial Conduct Commissioner for a term of three years commencing on 7 January 2022 and expiring on 6 January 2025 Michael Thomas Boylan QC Gazetted: 23 December 2021, Gazette No. 82 of 2021

RULES Youth Court Youth Court (Youth Treatment Orders) Rules 2021 Gazetted: 18 November 2021, Gazette No. 74 of 2021 Youth Court Youth Court (Care and Protection) Rules 2018 Gazetted: 9 December 2021, Gazette No. 80 of 2021 Uniform Civil Rules 2020 Uniform Civil (No 6) Amending Rules 2022 From 1 January 2022 Gazetted: 16 December 2021, Gazette No. 81 of 2021 February 2022 THE BULLETIN

49

GAZING IN THE GAZETTE

REGULATIONS PROMULGATED (3 NOVEMBER 2021 – 2 JANUARY 2022) REGULATION NAME

REG NO.

DATE GAZETTED

Electricity (General) (Technical Standards) Variation Regulations 2021

164 of 2021

4 November 2021, Gazette No. 72 of 2021

Superannuation (Prescribed Authority) Variation Regulations 2021

165 of 2021

11 November 2021, Gazette No. 73 of 2021

Voluntary Assisted Dying Regulations 2021

166 of 2021

11 November 2021, Gazette No. 73 of 2021

Health Care (Provision of Data and Statistics) Variation Regulations 2021 167 of 2021

11 November 2021, Gazette No. 73 of 2021

Health Care (Reporting of Cancer) Variation Regulations 2021

168 of 2021

11 November 2021, Gazette No. 73 of 2021

Community Based Sentences (Interstate Transfer) Regulations 2021

169 of 2021

18 November 2021, Gazette No. 74 of 2021

Burial and Cremation (Surrender of Interment Rights) Variation Regulations 2021

170 of 2021

18 November 2021, Gazette No. 74 of 2021

Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Variation Regulations 2021

171 of 2021

18 November 2021, Gazette No. 74 of 2021

Landscape South Australia (Transitional Provisions) (Water Register) Variation Regulations 2021

172 of 2021

18 November 2021, Gazette No. 74 of 2021

Landscape South Australia (Water Register) (Operation of Provisions) Variation Regulations 2021

173 of 2021

18 November 2021, Gazette No. 74 of 2021

Controlled Substances (Youth Treatment Orders) Regulations 2021

174 of 2021

18 November 2021, Gazette No. 74 of 2021

Oaths Regulations 2021

175 of 2021

25 November 2021, Gazette No. 76 of 2021

Health Practitioner Regulation National Law (South Australia) (Telepharmacy) Variation Regulations 2021

176 of 2021

25 November 2021, Gazette No. 76 of 2021

Native Vegetation (Prescribed Areas) Variation Regulations 2021

177 of 2021

2 December 2021, Gazette No. 78 of 2021

Passenger Transport (Definition of Metropolitan Adelaide and Other Matters) Variation Regulations 2021

178 of 2021

2 December 2021, Gazette No. 78 of 2021

National Electricity (South Australia) (Local Provisions) Variation Regulations 2021

179 of 2021

9 December 2021, Gazette No. 80 of 2021

Electricity (General) (Payment Condition) Variation Regulations 2021

180 of 2021

9 December 2021, Gazette No. 80 of 2021

Gaming Machines (Miscellaneous) Variation Regulations 2021

181 of 2021

9 December 2021, Gazette No. 80 of 2021

Lotteries (Miscellaneous) Variation Regulations 2021

182 of 2021

9 December 2021, Gazette No. 80 of 2021

Public Corporations (Australian Children's Performing Arts Company) (Dissolution and Revocation) Regulations 2021

183 of 2021

9 December 2021, Gazette No. 80 of 2021

Victims of Crime (Fund and Levy) (Young Offenders) Variation Regulations 2021

184 of 2021

9 December 2021, Gazette No. 80 of 2021

Electricity (General) (Technical Requirements for Electrical Equipment) Variation Regulations 2021

185 of 2021

16 December 2021, Gazette No. 81 of 2021

Controlled Substances (Poisons) (Miscellaneous) Variation Regulations 2021

186 of 2021

16 December 2021, Gazette No. 81 of 2021

National Parks and Wildlife (Co-management Boards) (Gawler Ranges Parks) Variation Regulations 2021

187 of 2021

16 December 2021, Gazette No. 81 of 2021

Children and Young People (Safety) Variation Regulations 2021

188 of 2021

16 December 2021, Gazette No. 81 of 2021

Criminal Law Consolidation (General) (Driving at Extreme Speed) Variation Regulations 2021

189 of 2021

16 December 2021, Gazette No. 81 of 2021

Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2021

190 of 2021

16 December 2021, Gazette No. 81 of 2021

Planning, Development and Infrastructure (Transitional Provisions) (Major Development) Variation Regulations 2021

191 of 2021

16 December 2021, Gazette No. 81 of 2021

Legislation Interpretation Regulations 2021

192 of 2021

23 December 2021, Gazette No. 82 of 2021

Legislation Revision and Publication (Legislation Interpretation) Amendment Regulations 2021

193 of 2021

23 December 2021, Gazette No. 82 of 2021

Local Government (Financial Management) (Review) Variation Regulations 2021

194 of 2021

23 December 2021, Gazette No. 82 of 2021

Local Government (General) (Annual Reports) Variation Regulations

195 of 2021

23 December 2021, Gazette No. 82 of 2021

Local Government (Amendment of Schedule 4 of Act) Regulations 2021 196 of 2021

23 December 2021, Gazette No. 82 of 2021

Local Government (Transitional Provisions) (Stage 2) Variation Regulations 2021

197 of 2021

23 December 2021, Gazette No. 82 of 2021

Fire and Emergency Services Variation Regulations 2021

198 of 2021

23 December 2021, Gazette No. 82 of 2021

50 THE BULLETIN February 2022

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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.

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Family Law - Melbourne

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.

Seeking Resolution Family law Business valuations Economic loss Investigations Owners disputes

Suite 103 / L1 448 St Kilda Road . Melbourne 3004

03 9867 7332

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

All information divulged to the LawCare counsellor is totally confidential.

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

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:

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

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

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

Ground Floor 157 Grenfell Street Adelaide SA 5000 February 2022 THE BULLETIN

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