The Bulletin - Law Society of South Australia - July 2020

THE

BULLETIN VOLUME 42 – ISSUE 6 – JULY 2020

THE LAW SOCIETY OF SA JOURNAL

COVID-19: NAVIGATING THE PANDEMIC & FUTURE IMPLICATIONS FOR THE PROFESSION

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (6) LSB(SA). ISSN 1038-6777

CONTENTS COVID-19 6 Lessons on leadership & responsibility to be learnt from COVID-19

By Chief Justice Chris Kourakis 8 Court by Video: A remote hearing of the Full Court of the High Court of Australia – By Stephen McDonald 10 COVID-19 Regulations for Commercial Tenancies

By William Esau & Victoria Malcolm 12 Democracy deferred or denied?

Parliamentary oversight during the COVID-19 pandemic

By Dr Anna Finizio 13 COVID-19 funding boost for legal assistance services 14 How the SAET responded to the COVID-19 pandemic Q&A with Justice Steven Dolphin 16 Law in the time of COVID-19: Changes in succession and probate practice – By Kym Jackson Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich T Vozzo F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members N Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman

18 A summary of technological increments experienced as a result of COVID-19 – By the Legal Technology Committee 22 Pivot of perish: Managing a small practice in the grip of a pandemic

By Chris Johnston 26 Employment law & COVID-19

By Adam Crichton 30 Dealing with COVID-19: Perspectives from young lawyers

FEATURES & NEWS

REGULAR COLUMNS 4

From the Editor

5

President’s Message

21 Tax Files: The problem with professional fees – By Paul Tanti 30

32 Risk Watch: Advising as to Superannuation Death Benefits – the importance of getting it right

By Grant Feary 41

33 BankSA partnership reaches 25-year milestone 36

eflections on the recent High Court R decision in Love: The constitution, Indigenous rights & immigration law

By Kate Slack & Arron Hartnett

40 The effect of amendments to the Retail & Commercial Leases Act

By John Chapman

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

Young Lawyers column

Members on the Move

42 Wellbeing & Resilience: When good anxiety turns bad 43 Bookshelf 44

Gazing in the Gazette

46

Family Law Case Notes

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

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

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

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FROM THE EDITOR

World opens up but long road to recovery ahead MICHAEL ESPOSITO, EDITOR

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s the world begins to open up again and people rediscover a feeling of “normality”, many will be reckoning with the fall-out from the COVID-19 catastrophe for months, if not years, to come.

The impact on jobs and businesses has been staggering, and many law practices have had to frantically re-write the playbook in order to keep the work coming. Some have been able ride out the storm, and in some cases thrive, while for others the work has simply dried up through no fault of their own.

The Law Society, too, has been forced to rapidly adapt. As many readers would appreciate, transitioning staff to a home office environment resulted in many challenges, the most pressing being how the Society would continue to serve and support the profession during this time.

Pleasingly, the Society was able to continue to perform all of its functions, and indeed, add new services to assist the profession.

With face-to-face meetings and events forbidden, the Society rapidly moved to video conferencing, holding Executive, Council and Committee meetings via Zoom.

Naturally, some Member events had to be cancelled or rescheduled, but several were held successfully online. The Society’s Major Sponsor, BankSA, held a very well attended Information Session via webinar for the first time, and this may become a regular event.

The Society have also held online “Coffee Breaks” and “networking events” for practitioners in sole or small practice.

This has enabled practitioners to remain in contact with each other, share ideas and raise issues with the Society.

Some Members asked to receive more communications via social media, so we launched a Member Only Facebook Group

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in early May. The Society has used the facebook group to share news, updates and relevant information. This has proven to be a particularly useful in complementing our email communications and dedicated COVID-19 Resources Hub (launched in March) to keep Members informed about the latest coronavirus related developments affecting the legal profession.

The Guide to Member Services for 2020-21 will be available online for the first time. Members will now be able to access the Guide from their Profile Page on the Society’s website throughout the year and take full advantage of the support and benefits provided to Members.

The Society’s CPD program has completely moved online, with all sessions conducted via webinar. So far the feedback has been extremely positive, with attendance numbers at the same level as they were pre-COVID, and a number of Members expressing appreciation for the convenience of being able to attend remotely. The Society has been conducting CPDs via webinar for some time before the pandemic, but the complete reliance on this format has driven us to invest in technologies to make the online CPD experience more satisfying and rewarding for practitioners.

Another dilemma the Society faced was how to deliver the GDLP, which it runs in conjunction with University of Adelaide, in a way that adheres to social distancing while enabling students to complete their practical training requirements.

Teachers who had previously only taught face to face had to adapt to online teaching, and to the Society’s gratitude, did so with great patience and understanding.

Students, too, gracefully accepted the circumstances and have adapted well to completely online courses, and the Society

has provided students with additional assistance for any issues they have faced with online learning.

Fortunately, LPEAC approved remote supervision of practical legal training students during the COVID-19 restrictions.

The Society was also particularly active with regards to its advocacy, and Policy Lawyer Dr Anna Finizio details some of the key issues we advocated on to support the profession during this trying time.

Chris Johnston, in his article, provides an insight into how COVID-19 significantly impacted his migration practice, and the tough decisions he had to consider making as the steady stream of work he was used to began to evaporate. He noted that the three main measures which helped him steer his practice through these choppy waters, and enabled him to retain all his employees, was the JobKeeper program, the rent relief arrangement negotiated with the landlord, and the Society’s rebate package.

The Society’s $1.8 million relief package to reduce insurance and registration fees was the result of a thorough financial analysis to determine the largest discounts that could be feasibly provided to Members and insureds.

While the Society’s package and other relief measures may not be a cure for those practices that have suffered significantly as a result of COVID-19, it is sincerely hoped that those who have been hit hardest can bounce back from this situation, even if the recovery is gradual. The Society is acutely aware that the problems will not magically disappear once the COVID-19 emergency period is formally declared over, and will continue to support practitioners.

I encourage practitioners to reach out if they need help. The Society has a number of resources to help practitioners both professionally and personally. B

PRESIDENT’S MESSAGE

Profession has shown resilience & agility during trying times TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

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020 will be a year that I am sure none of us will forget, and it is hard to believe that we are only half way through it! As a consequence of the coronavirus, everyone has had to adjust their daily habits and routines.

Many of us are sociable individuals, who thrive on interaction and engagement with others. Added to the social and personal consequences caused by this pandemic, are of course the equally debilitating economic effects. Almost all sectors of the economy, including the legal sector, have been hit hard. We are a resilient bunch though, and the legal profession has fared better economically than many other industries. Not that this is something to celebrate, but it does put our own challenges into perspective.

There are large sections of the community struggling significantly more than many of us. Many of us are fortunate that we have been able to continue working, be it to varying degrees.

Unfortunately, like the rest of the community, some sections of our own profession have been adversely affected more than others. The criminal practitioners have been especially hit hard, as have other practitioners who rely heavily on trial work. Many of their in-person appearances in the Magistrates Court, which were frequently required, came to an abrupt end for a period of time. Inperson appearances continue to remain fairly heavily restricted. The District Court

jury trials, for example, have basically been put on hold for months, with only some such trials due to commence in August.

Even when these trials do recommence, due to the ongoing physical distancing requirements and other restrictions, they may at best return on a limited basis. It is my understanding that two court rooms will be required to run each trial, which of course will impact on the number of jury trials that can be dealt with over at least the remainder of the year.

Some of the civil jurisdictions have been able to manage extended personal attendances of practitioners through the use of video conferencing. Over the past few months, in the SAET, there have been several trials involving expert and lay witnesses that have still proceeded through the use of Microsoft Teams. From what I have been told by those involved, it was a process that worked exceedingly well.

Importantly, the adoption of this sort of technology where possible has allowed members of the public to continue to progress their respective legal matters.

This outcome reflects positively on the profession in the wider community.

There have been numerous other changes adopted by the various courts that have, to varying degrees, enabled matters in their lists to be heard and progressed. We have all worked extremely hard over the last few months to adapt, learn about new types of technology and embrace changes to ensure that our clients’ best interests

are protected and heard. The way we all practice the law I am sure has changed forever, and what the new “normal” becomes for us all is yet to be determined.

During this period, I have been fortunate to have fortnightly Zoom meetings with the other Law Society Presidents of each state and territory.

These sessions have been an invaluable source of information as their members have faced almost the same challenges as we all have here in South Australia.

Many of the Presidents’ suggestions, ideas and initiatives have been highly useful, and some have been implemented to the benefit of our own local profession.

As raised by Dr Anna Finizio in her article in this edition, there have been a large number of Acts and Regulations passed by State parliaments over the last few months. Locally, the Society has had input into all of these legislative instruments. Since March the Society has made 44 submissions dealing with State and Federal issues. We have done so to protect the interest of members of the public and, where applicable, the profession as well. It has been a particularly demanding pace, but rewarding at the same time to see that our input has shaped the content of particular Regulations and Acts.

By being resilient and adaptive, as we have all been, we will continue to be able to assist our clients and remain relevant and respected in the community. Keep up the great work! B

IN THIS ISSUE

8

12

18

VIRTUAL COURT

HEALTH CHECK ON DEMOCRACY

PIVOT OR PERISH

SA lawyers in historic High Court video hearing

Parliamentary oversight during COVID-19

Managing a small practice in the grip of a pandemic July 2020 THE BULLETIN

5

COVID-19

Lessons on leadership & responsibility to be learnt from COVID-19 THE HON CHRIS KOURAKIS, CHIEF JUSTICE OF SA

I

will not repeat here the measures which the Courts put in place to address the risk of COVID-19 infection. Those measures, and variations to them, were communicated by press release and placed online. The Law Society regularly posted links to them in its messages to its members.

The severity of the measures necessarily varied from court to court. In the Supreme Court, which generally has larger courtrooms with fewer participants, the effects were limited. The Supreme Court has, by and large, maintained its ordinary lists. A jury trial, which was part-heard when the Directions of the Chief Executive of the Department for Health and Wellbeing in Relation to Mass Gatherings, were made, was completed with only minor interruption. Another jury trial will be heard this month. One criminal trial was adjourned because an interpreter was not in a position to travel from Ceduna to Adelaide. Two civil trials with interstate or international parties were adjourned.

On the other hand, because the bulk of the District Court hearings are trial by jury, its trial list was substantially curtailed.

It is not possible to comply with health advice in a jury trial unless two courtrooms are occupied in order to allow jurors sufficient space during adjournments and when deliberating. That advice is likely to be maintained for the foreseeable future.

Accordingly, it may be some time before the District Court returns to its preCOVID-19 position. However, trials by judge alone can and will be heard.

The District Court and Supreme Court Masters made changes to their lists by increasing substantially the matters which were dealt with online.

The Magistrates Court is a busy trial court and has long general lists in its criminal and civil jurisdictions. The courtrooms and waiting spaces are often

6 THE BULLETIN July 2020

crowded. Therefore, its work and lists were substantially disrupted. However, the Magistrates Court has quickly moved to resume normal operation and should be in a position to address the backlog relatively soon.

All courts increased the use of technology, including dealing with interlocutory matters electronically, conducting hearings by WebEx and placing greater reliance on written submissions in order to reduce the time taken in court. Many of those changes have improved efficiency and expedition.

They will be retained.

The Courts Administration Authority proposes to evaluate the measures it has taken and their effects on the profession and the public. We will consult widely. I am sure that that consultation will improve our response to, what will hopefully be rare, future events of this kind.

Measures were taken by all courts to improve hygiene arrangements with additional and more effective anti-viral cleaning. Notices were placed at the entrances to all court buildings informing the public of health restrictions. After discussions with the Commissioner of Police, a declaration was made constituting it an offence not to follow the health distancing directions of a Sheriff ’s Officer (clause 3(5) of the Emergency Management (Gatherings) (COVID-19) Direction 2020).

I wish to emphasise the lessons which might be learnt from these exceptional times about professional responsibility and leadership.

First, I wish to acknowledge the steady hand with which the State Courts Administrator, Ms Burgess, and her executive team, steered the Courts Administration Authority through the last several months. The Courts were not subject to the proscriptions imposed

pursuant to the Emergency Management (Gatherings)(COVID-19) Direction 2020 and subsequent iterations but, nonetheless, acted as far as reasonably practicable within health guidelines and consulted closely with public health officers. Neither the registries nor judges’ chambers were vacated. Our staff continued to perform their duties, at some risk, for Sheriff ’s Officers in particular, in order to keep the doors of the Courts, and access to justice, open. I wish also to commend the Electronic Court Management System (ECMS) team who worked through the COVID-19 restrictions to deliver the civil component of ECMS on 18 May 2020.

The legal profession provides important services on which the community relies.

Legal practitioners have a professional responsibility to the public in that respect.

Legal practitioners were, therefore, bound to consider more than their personal preferences when deciding how to modify their practices. The proper resolution of those competing considerations required close attention to the advice of health authorities. It was necessary to manage risk within acceptable limits in order to discharge professional responsibilities.

As an example, the witnessing of client signatures worried many practitioners.

The Courts took the position that by following good hygiene practices, it remained practicable to witness signatures.

Accordingly, courts did not amend rules around the execution and filing of affidavits but allowed, as an interim measure, affidavits of solicitors to be filed attaching a client’s unsworn statement until the document could be regularised.

An important leadership role emerged for the legal profession, and the Law Society in particular, with the making of emergency declarations and directions.

Unfortunately, because much of the

COVID-19

mainstream media and social platforms focussed on the national position, insufficient attention was given to the particular directions made in South Australia which were generally more relaxed than in other States and Territories.

The COVID-19 experience has also demonstrated that there is much more to leadership than acting as an echo chamber for the anxieties and fears of those for whom responsibility is carried. Listening

and showing concern is critical but good leadership supported people to move forward based on sound medical advice.

Good leadership is also collaborative and cooperative. Throwing the burden of the crisis on others is, of course, completely counter-productive. It is important that individually, and institutionally, we work together on finding solutions. Only in that way can successful outcomes be achieved.

I am confident that we will all learn much from these exceptional times. It is essential that we do so if the profession is to recover from the financial challenges that it will face, even after most of the restrictions are lifted.

Those lessons will also facilitate the continuous improvement which has always been necessary to ensure that cost effective access to justice is widely available to the Australian community. B

THE LAW FOUNDATION OF SOUTH AUSTRALIA FELLOWSHIP The Law Foundation is a non-profit organisation. Its objectives include: (a) the support of legal research which is of value in law reform; (b) the promotion and provision of legal education and information for legal practitioners, students and members of the public; (c) the provision of legal services to the community.

The annual LAW FOUNDATION FELLOWSHIP offers funding up to $50,000 (inclusive of GST) to enable the successful applicant to pursue a course of legal or legally related academic or other study outside of the State of South Australia. Academic merit or the academic level of the proposed course will not be the only criteria for eligibility but the outcome of the study must offer a benefit to the general community and the legal community of South Australia.

Applicants must be graduates of the Law Schools of the University of Adelaide, Flinders University or University of South Australia OR legal practitioners with not less than 5 years’ experience in South Australia and who hold current Practising Certificates.

Graduates who hold full-time academic positions are not eligible for the Fellowship.

Applications for the Fellowship are now invited and will close on 30 SEPTEMBER 2020.

Application criteria and general information can be obtained from the Foundation as follows: www.lawfoundationsa.com.au OR The Executive Officer Law Foundation of South Australia Incorporated PO Box 6381, Halifax Street ADELAIDE SA 5000 Ph 0429 266 611

July 2020 THE BULLETIN

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FEATURE

Court by Video — A remote hearing of the Full Court of the High Court of Australia STEPHEN MCDONALD, HANSON CHAMBERS

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was fortunate to be briefed as junior counsel to Marie Shaw QC in the case of Cumberland v The Queen,1 a sentence appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of the Northern Territory.

Mr Cumberland had been sentenced to imprisonment for four years and six months, with the sentence to be partially suspended after two years. Following a Crown appeal, the Court of Criminal Appeal had increased that sentence to eight years’ imprisonment, with a nonparole period of five years, five months and one week. Due to the appeal taking a somewhat unusual procedural course, the new sentence was announced only one week before Mr Cumberland was due to be released under the original sentence.

On 11 December, 2019, Bell and Nettle JJ made orders granting special leave to appeal “on the papers”. The grounds of appeal were as follows: 1. The Court of Criminal Appeal erred in failing to consider and apply the principles relevant to Crown appeals both when deciding whether to allow the Crown’s appeal against sentence and when re-sentencing the appellant.

2. The Court of Criminal Appeal erred in separately determining that the appeal should be allowed at a point in time when the principles to be applied and the circumstances applicable at the time of any re-sentencing were not known.

3. The Court of Criminal Appeal erred in failing to accord the appellant procedural fairness in the conduct of the hearing of the Crown appeal against sentence.

The appeal was listed for hearing before the Full Court on 15 April, 2020.

However, on 17 March, 2020, the Senior Registrar of the High Court informed the parties that the High Court would not be sitting in Canberra in April.

At around the same time, the Court announced publicly on its website: Following the adoption of policies restricting travel and meetings and remote workplace

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Counsel for the appellant’s remote set-up

arrangements it has been decided that the High Court of Australia will not be sitting in Canberra or on circuit in the months of April, May and June. The question of future sittings will be reviewed in June.

Given that the Court usually sits in Canberra, its current judges are resident in three different States, and counsel and solicitors travel from all over Australia, this was hardly surprising. COVID-19-related restrictions on travel, and risks to health, would make it impossible for the Court to discharge its functions in the ordinary way for at least a few months.

The Cumberland appeal was somewhat unusual, however. The Director of Public Prosecutions had already conceded, in its written submissions on the appeal, that the procedure adopted by the Court of Criminal Appeal had resulted in a denial of procedural fairness to Mr Cumberland. The Director submitted that the matter should be remitted to the Court of Criminal Appeal for the appellant to be re-sentenced again, after a hearing that complied with the requirements of procedural fairness.

The appellant’s submission in reply was that, since the sentence imposed by the Court of Criminal Appeal must now be set aside, with the effect that he would have to be released from custody (the original sentence having expired) there were now overwhelming grounds to exercise the “residual discretion” simply to dismiss the Crown appeal against sentence.

On 25 March, 2020, the parties were advised that the hearing date for the Cumberland appeal had been retained, and that a “virtual hearing” would be arranged.

The High Court has, for many years now, conducted some of its hearings — especially interlocutory hearings and applications for special leave to appeal — “by videolink”, with the Judges appearing in one courtroom and counsel appearing remotely from courtrooms in other cities.

This hearing would be quite different, however: counsel would appear not from a courtroom but by connecting to the hearing via their own devices. Further, the Judges were not just remote from counsel, but would each sit in a different city:

FEATURE

Justice Bell in Sydney, Justice Gageler in Canberra and Justice Nettle in Melbourne.

Cumberland was not the first High Court hearing to be conducted in this manner: the previous week, Justice Edelman had sat as a single Judge to decide whether an application for judicial review of a migration decision, in the original jurisdiction of the High Court, should be referred to a Full Court of the High Court or remitted to the Federal Circuit Court.2 In addition to the usual preparations associated with any High Court appeal hearing, it fell to junior counsel to make appropriate arrangements for the remote appearance. We decided that Mrs Shaw and I would both appear together from the library of Hanson Chambers. The appellant’s third counsel, Mr Thomas, and his solicitor, Mr McQueen — both based in Darwin — appeared separately, disabling their video during the hearing.

The setup we used comprised an innovative fusion of traditional mahogany, contemporary metal and improvised cardboard furniture, my laptop computer, and an extended monitor display (pictured). I also took the opportunity to sneak a photo of my silky terrier, Moses, onto the bookshelf behind us.

The protocol issued by the High Court states that counsel in remote locations should remain seated when addressing the Court. However, Mrs Shaw felt more at home delivering her oral submissions from a standing position, so we sought permission for counsel to stand when addressing the Court. Both parties’ counsel did so in the end. Having subsequently experienced several other remote court hearings in which I have appeared seated in chambers, I think it was a good decision to stand; sitting while presenting submissions feels quite unfamiliar and can make it more difficult to marshal documents as necessary.

From a technical perspective, the appeal ran fairly smoothly. There were a couple of minor problems, but they

did not prevent the hearing proceeding to completion, and had no real adverse effect on the capacities of the parties to advance their arguments or of the Court to understand and test them.

First, just before the respondent’s senior counsel in Darwin was called upon to make his submissions, he lost the video images of the other participants. The Court adjourned briefly to enable vision to be restored: BELL J: Thank you, Ms Shaw. Yes, Mr Nathan.

MR NATHAN: Sorry, your Honour, unfortunately it appears that our video link has dropped out. We can hear the Court ‑ ‑ ‑ BELL J: I see.

MR NATHAN: ‑ ‑ ‑ but unfortunately we cannot see any of the parties. We are attempting to try and resolve that from our end.

BELL J: In that case, Mr Nathan, the Court might take a short adjournment and when we are notified that the link from Darwin has been re‑established the Court will reconvene.

MR NATHAN: Yes, thank you, your Honour.

BELL J: The Court will now adjourn.

AT 10.52 AM SHORT ADJOURNMENT UPON RESUMING AT 11.08 AM: BELL J: Mr Nathan, do I understand that you now have the link re‑established and you can see the Judges?

MR NATHAN: Yes, that is correct, your Honour. That is right.

The second minor issue arising from the use of technology was not so much technical glitch as “user error”.3 Junior counsel for the appellant may have <ahem> forgotten to press the “unmute” button at the commencement of senior counsel’s reply.

BELL J: Thank you, Mr Nathan. Anything in reply, Ms Shaw? Ms Shaw, can I interrupt you for a moment? We do not – or certainly in this Court I am not hearing any audio. I do not know whether Justices Gageler and Nettle can hear you, but I cannot.

GAGELER J: I cannot.

NETTLE J: I cannot.

MS SHAW: Can your Honours hear me now?

NETTLE J: Yes, thank you.

BELL J: Yes, thank you, Ms Shaw.

MS SHAW: Thank you. That was our fault at this end, your Honours. I apologise.

BELL J: Not at all.

Following the hearing, the Court adjourned to consider its decision. Thirtytwo minutes later, the videolink was re-established and Justice Bell announced that the appeal would be allowed. The orders of the Court of Criminal Appeal were set aside, and the Crown appeal to that Court was dismissed. The original sentence having thus been restored, and Mr Cumberland already having fully served that sentence, he was released from custody later that afternoon.

Reasons for the decision were later published on 3 June, 2020.

It truly is an amazing privilege to have had the opportunity to be involved in a small slice of history. That is all there is to say — except of course, the poem …

The High Court heard Cumberland v The Queen The first remote Full Court appeal there’s been From three diff ’rent towns the Judges appeared (One of their Honours with corona beard) Appeal allowed and the court has risen The appellant is released from prison The judicial power of the nation Exercised in splendid isolation B Endnotes 1 [2020] HCA 21. See also [2020] HCATrans 49.

2 Gibson v Minister for Home Affairs [2020] HCATrans 46.

3 Such errors are sometimes referred to as “EBKAC” (“Error between keyboard and chair”), PICNIC (“problem in chair, not in computer”) or, less kindly, “identity error” (“ID10T” — that is, “idiot” error).

July 2020 THE BULLETIN

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COVID-19

COVID-19 Regulations for Commercial Tenancies WILLIAM ESAU, DIRECTOR, & VICTORIA MALCOLM, LAWYER, DW FOX TUCKER LAWYERS

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n Friday, 15 May 2020, the COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020 (‘Regulations’) were published.

The Regulations are made under the COVID-19 Emergency Response Act 2020 (‘Act’) for the purposes of implementing temporary measures that are to apply to many commercial leases arising from circumstances brought about by the COVID-19 pandemic. They also provide mechanisms for dispute resolution and Court orders to be made pertaining to those leases.

The Regulations cover lessors and “affected lessees”, and apply during the “prescribed period”. This period commenced on 30 March, 2020 and at this stage will expire on 30 September, 2020.

An affected lessee will be a lessee who is suffering financial hardship as a result of the COVID-19 pandemic and has an annual turnover of less than $50 million. A lessee will be automatically determined to be suffering from financial hardship if the lessee is eligible for a JobKeeper payment in respect of the business of the lessee.

Receiving a JobKeeper payment is not a precondition to a lessee being an affected lessee. A lessee will also be considered an affected lessee if the lessee is suffering financial hardship as a result of the COVID-19 pandemic and has a turnover of less than $50 million (measured as a group if the lessee is part of a group).

The Regulations require the parties to negotiate in good faith the rent payable under a commercial lease having regard to: a. the economic impact of the COVID-19 pandemic on the parties; b. the provisions of the Act and the Regulations; and c. the National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 published on 7 April 2020.

Essentially, this is a requirement to negotiate rent relief in line with the Mandatory Code of Conduct. Having regard to the requirements under the Code, there is a requirement for lessors to:

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• provide rent relief by way of waivers and deferrals; • not draw on security provided by their tenants; • not charge fees, interest or other penalties with respect to waivers and deferrals; • allow repayments over an extended lease period; and • pass on benefits or reductions lessors receive in proportionate amounts to lessees.

As anticipated, the Regulations also prohibit the lessor from taking “prescribed actions” against the lessee for a failure to pay rent or other outgoings or failing to open during trading hours specified in the lease. The Regulations provide that during the prescribed period: • the lessor may not evict a tenant or exercise a right of re-entry or distraint against goods; • the lessor may not terminate the lease; • the landlord may not recover a security bond; • the rent must not be increased unless agreed between the parties; • the lessor must not require the lessee to pay or reimburse the lessor for land tax; and • the lessor must pass on any waiver of land tax or land tax relief to the lessee

in the form of a waiver of rent payable by the lessee.

The Regulations provide a mechanism for dispute resolution whereby a party may apply to the Small Business Commissioner for mediation of a dispute. It is within this mediation process that issues relating to whether a lessee is an “affected lessee”, may be resolved. If dispute resolution before the Commissioner fails, then the Commissioner will issue a certificate that will state: a. that the mediation has been terminated without resolution; or b. that the mediation would not be reasonable in the circumstances; or c. that a party to the commercial lease refused to participate, or did not participate in good faith, in mediation.

The next step will then be an application to the Magistrates Court, which can make a determination as to whether or not a lessee is an affected lessee and make binding orders for rent relief. If the Magistrates Court makes an order granting rent relief, then at least 50% of the rent relief must be in the form of a waiver of rent.

Note that the regulations do not apply to a new lease entered into after 30 March, 2020 unless arising through an option to extend an existing lease. B

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From desktop dictation to cloud solution: how dcdthis law firm managed remote working without compromising efficiency

South Australia’s leading law firm, Johnston Withers Lawyers takes pride in providing top quality legal services to the community and businesses on a wide range of areas including personal injury, WorkCover, industrial, family and criminal law fields as well as all aspects of commercial and property law, wills and estates and defamation.

When COVID-19 became a pandemic law firms like Johnston Withers Lawyers were impacted. As they provide essential legal services, they could not cease business operations altogether and had to find ways to deliver the same client commitment. Working from home was a necessary scheme implemented by many legal firms but it also came with the challenge to make the transition from desktop dictation to cloud, easy and efficient.

The necessity to change Johnston Withers Lawyers had their own structure to manage their daily workflow between their team members. As law practices are dictation driven, they had an on-premise dictation management system to manage their workflow between their Adelaide office and their country offices.

Transition from desktop to cloud The workflow process on the cloud is dictation comparable to the one they used before, The management team had to come up achieving the same level of productivity and with a solution that offered the flexibility work turnaround time. Andrew Mitchard, of remote working whilst retaining similar Managing Director said, “Having Speechlive functionality to ensure the lawyers were on the phone rather than a separate able to continue to service their clients dictaphone is much more convenient and and be as productive as normal, without one less thing to remember to take with being physically in the office. From an you.” operational point of view, the solution needed to be agile for employees to With seven practitioners and four team be compatible with their personal work members currently transcribing, the law stations and remote locations, eliminating firm transitioned to the new system with no the cumbersome process of procuring hiccups and minimal remote training. The license products and software installations. ease of use allowed the team members to Faced with the challenge of finding a quickly adapt to the new tool straight away. fast and simple workflow solution, Trevor Having a cloud solution for dictation and Crispin, General Manager, recalled Philips transcription, as well as the convenience SpeechLive as suggested by Chris Flatau of using a smartphone app, has benefited from Copia, a certified Philips partner in them to deal with the current situation in a Adelaide. positive way. Even the solicitors who were not dictating before, now enjoy the use of the digital solution to save time to focus on more important tasks.

Philips SpeechLive is a cloud based dictation software that can be used from any location. Practitioners can use their own smartphones to dictate on the SpeechLive app or use their traditional dictaphones to send dictation to their legal assistants. The legal assistants can then log into SpeechLive from their own work location to access those dictations. The only add-on they required for transcribing was the plug and play transcription set, consisting of foot pedal and headphones.

When South Australia was faced with a virtual lockdown, to cope with the the pandemic, Johnston Withers Lawyers quickly explored options that allowed them to work remotely without compromising their efficiency. The Digital work environment - the better platform they normally used for dictation normal was desktop license based, dedicated The remote working environment on to individual work stations based in their offices. Given the urgency of the situation, SpeechLive has allowed solicitors and secretarial staffs at Johnston Withers it was not possible to reconfigure the Lawyers to comply with the social existing system and re-install licenses for individual employees within a constrained distancing protocols while remaining virtually connected with each other. timeframe.

Looking forward, Kate Eckert, Office Manager, believes given the convenience, SpeechLive will be a game-changing solution for the legal practitioners as they will be able to utilise the ease of access to the system when working from their country offices or offsite locations. She said, “We have several country offices so SpeechLive will be beneficial for solicitors who are on the road and traveling to various sites. Dictating and downloading with the push of a button from any location is more effective for them as they don’t have to turn on their computer or plug devices into a dock like before. They’re more inclined to dictate things straight after a meeting or after a hearing, while it’s fresh on their minds, rather than when they return to the Adelaide office.”

To know how cloud dictation and transcription software solution can help you and your law firm to work remotely, please contact Philips Certified partner, Copia. Visit www.copia.com.au or call 1300 026 742 for your software solution.

COVID-19

Democracy deferred or denied?

Parliamentary oversight during the COVID-19 pandemic DR ANNA FINIZIO, POLICY LAWYER, LAW SOCIETY OF SA

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espite reduced parliamentary sitting days at both federal and state level during the COVID-19 pandemic, state parliaments in particular, have passed hundreds of new laws and regulations related to COVID-19. Recent analysis has shown that state parliaments have passed 546 legislative instruments since mid-March1, while sitting days have been reduced across most state parliaments, including South Australia.

This raises obvious concerns regarding reduced scrutiny and oversight.

Civil rights and liberties have been curtailed by draconian and unprecedented measures implemented to stop the spread of COVID-19 in Australia.

As restrictions start to lift and some semblance of life as we know it resumes, it is likely the impact of these measures will be felt for years to come.

At a federal level, the National Cabinet was assembled comprising the Prime Minister and all State and Territory Premiers and Chief Ministers. The last time a national or crisis cabinet was formed was during the Second World War under the Menzies Government in 1939. The National Cabinet model has worked so well that a decision was recently made to abolish the Council of Australian Governments (COAG) and replace it with the National Cabinet model. No doubt the flexibility offered by the national cabinet model, for example the ability to meet frequently and when issues arise, has enabled a level of responsiveness and timeliness that Parliament by its sheer design and convention cannot afford. While this model has clear practical benefits, it does circumvent the usual democratic process and is much less accountable. Fortunately, the federal and most state parliaments have now established COVID-19 Oversight Committees, to oversee the measures being implemented during the pandemic.

Parliamentary scrutiny is important as it involves much broader representation than the national or state cabinets, as

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well as (generally) wider consultation with relevant stakeholders. The Law Society is a key stakeholder with respect to legislative reform in South Australia and has played an active role during the COVID-19 pandemic. Due to the rapid pace by which legislation was being passed through the Parliament, regulations made and directions issued, there has been an even greater reliance on the Society

by Members of Parliament. As well as providing detailed written submissions, the Society made itself directly available to Members of Parliament and Parliamentary Committees for comment and advice by telephone where there wasnâ&#x20AC;&#x2122;t adequate time for written advice to be provided.

For example, the Society was directly consulted by the Chair of the COVID-19 Response Committee to assist the Committee with respect to its focus and functions. Given the pace by which regulations and directions were being made in South Australia, the COVID-19 Response Committee have the challenging task of overseeing these measures as well as conducting a review once the COVID-19 Emergency Response Act 2020 and regulations expire. The Society has provided the Committee with advice as to the COVID-19 emergency legislative framework, in particular its concerns around detention of protected persons, residential and commercial tenancies

as well as the impact of directions made under section 25 of the Emergency Management Act 2004 (SA). The Society is informed that at 9 June 2020, around 477 Expiation Notices had been entered on the Expiation Notice System for the offence of refusing/failing to comply with a direction since 29 March 2020. At 9 June, revenue for these expiation notices was at $301,140.

In addition to providing advice on various matters, the Society was active in speaking out against legislation or regulations made as part of the COVID-19 response which offended fundamental legal principles. The Society strongly opposed amendments to the Bail Act 1985 (SA) introduced by the Government as part of the COVID-19 Emergency Response (Bail) Amendment Bill 2020. The Bill expanded upon the classes of offences where a presumption against Bail exists under section 10A of the Bail Act. While the changes are unlikely to have any impact in preventing such offences, they will further erode judicial discretion around bail and may lead to accused persons spending extended periods in custody without trial.

The Society raised a number of concerns publicly around this legislation.

The Society also advocated for changes to the order of signing of Advance Care Directives (ACDs) during the COVID-19 pandemic. The Society

COVID-19

expressed its serious concerns regarding the inherent and completely avoidable risk that the person making the ACD may lose adequate mental capacity between the date of giving instructions and the time the document is signed by substitute decision makers and returned for signing by the donor. The Society suggested that the order of signing should simply not be prescribed, and that electronic signatures be accepted to facilitate the signing of ACDs in emergency situations during the COVID-19 pandemic.

The Society’s Property Committee were instrumental in the Society’s Advocacy regarding the implementation of the National Cabinet Mandatory Code of Conduct with respect to SME Commercial Leasing Principles during COVID-19.

The Code imposes a set of good faith leasing principles for application to commercial tenancies where the tenant is an eligible business for the purpose of the Commonwealth Government’s JobKeeper program. The Society advocated for the Code to be implemented in SA and was successful in having key changes made

to the regulations with respect to the obligation on parties to commercial leases to negotiate in good faith. Not only did the Society provide timely advice to the Parliament, but was called upon by other stakeholders such as Business SA, to help navigate the Code and its implementation.

The Society was also successful in ensuring that measures were included in the COVID-19 Emergency Response Act which would ensure that its Members could continue to provide legal services in the face of increasing restrictions.

Advocacy during the COVID-19 period was not limited to oversight of the legislature, but included other government and non-government stakeholders.

For example, the Society advocated to ensure that injured persons' claims and entitlements were not unduly delayed by the COVID-19 pandemic due to measures implemented by ReturntoWorkSA to temporarily cease case referrals for Whole Person Impairment assessments. The Society also actively engaged with the Department of Corrections to ensure the pandemic did not hamper the ability of

those detained in correctional facilities to have access to their lawyer, and that measures were being undertaken to stop the spread of COVID-19 in correctional facilities. The Society through its Special Interest Committee Chairs, worked directly with the heads of various jurisdictions to deal with the impact of COVID-19 on the justice system.

Parliamentary oversight is one of the fundamental tenets of democracy, even during a pandemic. It is crucial that the executive is kept accountable during this time and oversight is exercised to ensure emergency measures are proportionate in their aims and only remain in place as long as necessary. While we may remain in a state of emergency for some months to come, the Society will continue to monitor emergency measures and work with the Parliament to ensure democracy is neither denied, nor deferred in South Australia. B Endnotes 1 The Hon Meg Webb MP, Background Briefing Paper: COVID-19 Parliamentary Committees of Inquiry – a National Comparison, May 2020.

COVID Funding boost for legal assistance services

S

outh Australia’s legal assistance sector will receive an $4.8 million in Commonwealth funding to help services respond to increased demand for legal assistance in the midst of the COVID-19 pandemic.

The SA legal assistance sector will receive $3.6 million over two years to provide essential legal services, with another $1.2 million to be used for muchneeded ICT upgrades.

The breakdown of funding is as follows: Legal Services Commission Community Legal Centres Aboriginal Legal Rights Movement Family Violence Legal Service Aboriginal Corporation JusticeNet SA Youth Law Australia

$2,339,821 $1,419,000 $732,054 $189,132 $80,000 $57,510

Cathy McMorrine, Chair of Community Legal Services SA (CLCSA), said the pandemic has resulted in an increased demand for legal services.

“CLCSA members have been experiencing an increase in requests and have recorded an increase in complexity for legal information on family law and parenting matters, family violence, and issues related to housing and employment due to COVID-19,” she said.

“Despite the challenges of social distancing CLC members have worked tirelessly through the recent months to ensure clients can access to justice and receive fair, equitable treatment in the justice system.”

Ms McMorrine said it was vital CLC services kept the lines of communication open during COVID-19 and responded to crises in a timely manner.

She said the additional services would “greatly assist and provide agility for CLC’s to meet ongoing and future challenges”.

The ICT funding will increase the ability for CLC staff to provide remote work and upgrade or purchase ICT equipment such as laptops, software licensing, internet accessibility and general upgrades to systems.

Subject to health advice, remote outreach activities are scheduled to return to normal levels this month, including in areas impacted by the bushfire disasters.

The funding injection is a part of a $63.3 million Commonwealth package.

Some states, such asw, NSW and Victoria, have provided additional funding to legal assistance services in their jurisdiction. At this stage, the SA Government has not announced the allocation of any additional funding for local services. B July 2020 THE BULLETIN

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Responding to change: How the SAET adapted to the COVID-19 pandemic With the COVID-19 pandemic forcing courts and tribunals to implement social distancing measures, the SA Employment Tribunal was quick to adopt remote technology and modify procedures to ensure matters were still being heard in a timely fashion while following official health advice. The Bulletin spoke with President of the SAET, Justice Steven Dolphin, about the way the Tribunal managed this unprecedented challenge and what the experience might mean for the future of the SAET. BULLETIN: What were some of the key measures the SAET took to ensure it could keep matters moving during the COVID-19 pandemic?

PRESIDENT DOLPHIN: In early March 2020, SAET established a COVID-19 Planning Committee. Our initial responses to the rapidly escalating COVID-19 pandemic was to put in place good hygiene measures and ensure adequate social distancing.

What the world now accepts in that regard, was novel only a few months ago. On one particular day in mid-March 2020, when I adjourned the court hearing I was conducting at various points during the day, each time I left the courtroom I became aware of new issues and concerns arising in the outside world, so that what started the day as a usual busy and bustling courtroom, ended the day with counsel, solicitors and the others in the courtroom all ordered to separate from each other and to maintain a safe social distance. Such issues were new and challenging to us all then, but we learned and adapted. SAET’s next response was to introduce measures designed to reduce the physical attendances at the building. In that regard, from 19 March 2020 all matters before Commissioners and essentially all procedural hearings, including settlement conferences, before Presidential members were to be conducted by teleconference. Special measures were put in place with regards to callovers. As to the hearing of cases in a courtroom, including appeals, it was left to the discretion of

14 THE BULLETIN July 2020

the individual judicial officers concerned to determine how those matters could proceed safely. Special measures were also introduced to ensure the efficient conduct of Dust Disease cases.

What has been the Tribunal’s experience of hearings conducted by remote technology? Have there been any technical challenges or have they by and large run smoothly?

Conducting litigation in SAET by remote technology has been greatly assisted by our electronic case management system CaseVision. This system can be logged into remotely so as to assess the court file. Without CaseVision, SAET’s ability to conduct its business by remote technology would have been significantly fettered.

The predominant experience of conducting litigation in SAET by remote technology has been by teleconference.

By and large that approach has worked well and the business of SAET has proceeded effectively. One down side of the teleconference arena is the inability to read the body language and other cues of those involved which generally means that, when everybody has had their say, the teleconferences go longer than usually would be the case. Teleconferencing has worked well for conciliation and procedural hearings. There have of course been technological challenges, but the staff of SAET have done a fabulous job in firstly adapting to the new working

environment and secondly getting on top of the technology.

With the hearing and determining of cases, SAET has also embraced remote technology. Hearings where witnesses give evidence and where submissions are put have been conducted by teleconferencing and by videoconferencing. SAET has also conducted a Full Bench appeal hearing by videoconference. Of course, not all hearings are amenable to being conducted remotely. SAET has been flexible in that regard and matters involving issues of credibility or reliability of evidence have continued to be conducted in a courtroom, albeit with safe social distancing observed.

How has the Tribunal ensured all legal obligations are discharged during this time?

SAET has always employed a flexible approach to litigation conducted in it. Being cognisant of the difficulties practitioners would be facing, in the early weeks of the COVID-19 pandemic, the SAET Registry accepted affidavits unsigned and unsworn. Following the lead of the Courts Administration Authority a Practice Direction with regards to affidavits was subsequently made.

How have practitioners responded to the modified procedures?

The response of the legal profession to the changed environment has been particularly pleasing and worthy of praise.

COVID-19

If nothing else lawyers are adaptable and in SAETâ&#x20AC;&#x2122;s experience the profession has risen to the challenge and responded admirably.

Cooperation and a can-do attitude has ensured that business has still got done, without the face-to-face dealings that we are all so familiar with. Also, the pro-active approach of the profession in dealing with any issues ahead of the allotted hearing date should be commended and encouraged into the future.

Are there any innovations adopted by the Tribunal that may continue beyond the pandemic and be a more permanent measure?

There will no doubt be views that innovations adopted during the COVID-19 pandemic should be considered as more permanent measures.

Some aspects of the business of SAET will be more amenable to such innovations than others. In considering what innovations would be worthy of consideration, the focus should be on how such innovations may promote the better use of the valuable time of not only SAET, but the parties and their representatives. If such innovations allow more time to be centred on what the issues between the parties are and how they

might be resolved, if not by agreement by determination, then perhaps they would be worthy of adoption. A properly nuanced approach should be employed.

What have been some of the key lessons learned about administering justice in a manner that is fair, efficient and, where possible, can accommodate the needs/ circumstances of all parties involved?

Goodwill, flexibility and a resolve to get to the heart of the matter has seen the administration of justice in SAET conducted as fairly and efficiently as possible in the changed and challenging circumstances. B

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COVID-19

Law in the Time of COVID-19: Changes in Succession and Probate Practice KYM JACKSON, LAWYER, BOYLAN LAWYERS

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efore the earliest most tentative warnings had sounded in relation to the COVID-19 pandemic, I had taken the pre-emptive precaution of moving to a regional area with my family. This proved to be sound and—at a personal level at least—the worst consequences of the virus were avoided. But complete avoidance was to remain elusive: legal services have been affected (though certainly not as much as some other businesses), as well as the way we deliver those services.

Boylan Lawyers moved early on to implement a system where offices were closed to walk-in clients, and strong preference was to be given to phone or video meetings, unless a physical meeting was the only option—and then with appropriate distancing and hygiene measures in place. This presents peculiar difficulties to the country practitioner.

The primary method of contact for many in the country is simply to drop in and say “g’day”. Some adjustment has been required.

Measures have been taken to deal with the problem: the Supreme Court reminded us all in its Practice Note of 16 April, 2020 that oaths cannot be taken remotely; witnessing affidavits must be done in person. However, the Court was prepared to allow that in these unusual circumstances some leniency was to be granted to rely on unsworn affidavits on certain undertakings. The Probate Registry, shortly thereafter, reminded us of the higher standard required of those

16 THE BULLETIN July 2020

practising in probate with its admirably concise Practice Note issued the following day to the effect that no such dispensations applied in this more solemn jurisdiction.

And this, it must be said, is quite correct. After all, we are dealing with the last will and testament of a deceased person. The deceased, it goes almost without saying, is not here to set the record straight. No shortcuts can be taken.

We are also dealing with a situation which has focused the minds of many of our clients on the need to ensure that their wills are up to date, but—paradoxically— many of these same clients are often the ones who most need to take precautions around social distancing and who are most at risk of complications should they contract COVID-19.

It is generally accepted that a solicitor’s will-making duties usually require meeting the testator in person. It is not sufficient to take instructions through a third party, or by letter or email, or even by telephone, without taking some steps to meet the testator in person to confirm their instructions at some point in the process before the document is executed. Even if taking instructions from an accountant or financial planner (who is the actual client) to prepare documents only, strong advice should be given that best practice demands that the solicitor meet the client (and that advice has never been ignored in my experience). I personally would not accept instructions at all from a family member to prepare documents for the family member

to have executed by the testator (I doubt any solicitor would). Even appropriately limiting your retainer in such matters will not extinguish the risk of litigation after the death of the testator, and in my view it’s just not worth it.

The solicitor’s retainer also generally extends to ensuring the execution of a valid document in any event (or attempting to do so if the testator doesn’t cooperate!).

The reason for such strenuous obligations is of course that once the document comes into effect the testator won’t be around to give their side of the story, so everything must be done properly before they die. It would also be difficult in my view, if not impossible, to properly satisfy oneself that the testator has testamentary capacity and is not at risk of undue influence or similar without meeting that person face-to-face. Thus, the COVID-19 pandemic created particular difficulty for the succession practitioner.

In Port Augusta, we are blessed with more (outdoor) space than might generally be expected in an Adelaide law firm’s office. An outdoor meeting area was set up with a table and chairs (all appropriately spaced apart). In this way meetings could take place with as much safety and lack of close contact as possible, and in my opinion the discussion of succession law was in some ways enhanced by sitting in the sun and wearing a panama hat.

If clients were more vulnerable, there was also an option to not share the same space with them. A set of drawers was

COVID-19

made available where documents could be placed and the advisor give directions to the client to retrieve the documents and execute them from the other side of the screen door. Happily, I did not have any clients vulnerable enough to wish for anything more than simply sitting outside, but one colleague did witness a statutory declaration for a probate application whilst a glass door separated her from the executor.

I remain firmly of the view that best, and proper practice requires meeting the testator in person. A retainer that involves not meeting the testator in person needs to be very carefully managed to minimise risk. But, technology has allowed significant mitigation of the risks involved in such retainers.

The Law Society’s own Will and Estate Planning – Risk Procedure Pack had two new documents added to it, a new letter to the client for remote will execution and a new checklist for remote will execution, both stipulated to be for use during the COVID-19 restrictions only. These documents contain appropriate warnings that allowing clients to self-manage the execution of their documents is fraught with risk. Detailed instructions as to proper execution can be sent to the client, and the client advised to return the will to the lawyer so it can be checked over for any problems. But such measures need to be used with caution: The fact is that the process of signature and attestation is not completely straightforward

and disaster may ensue if it is not correctly done. […] It is in my judgment not enough just to leave written instructions with the testator. […] it is common form for a solicitor to invite a client who has approved his draft will to come into the solicitor’s office to sign his will and have it attested. If the client is unwilling or unable to come to the office then a solicitor should ask the client if he would like the solicitor to attend him at home to get the will executed. If the client says “No” that is the end of the matter.

If the client says “Yes” it is easy to take a member of staff who together with the solicitor can witness the testator’s signature.1 Obviously the COVID-19 pandemic created a situation where meeting the client in person at all may be impossible, despite the wish of the client to do so.

The checklist set out a procedure where meetings could take place via Zoom or similar (i.e. a video meeting over the internet) to go through a document with the testator/s. If the testator had witnesses available, the execution and witnessing of the will could be observed by the solicitor over the video-link to ensure that everything was done properly. The videolink created one way to fulfil the solicitor’s duty without a personal meeting, but each situation must be assessed on a case-by-case basis to ensure that the duty is met. Some testators would not have been prepared to be in the same room as any witnesses at all; in that case presumably an informal will (similar to an intestate client signing her instructions in the interval before her

formal will can be prepared) would have to do until the emergency passes.

Despite the risks and pitfalls in these situations, these guidelines and precedents were no doubt helpful to practitioners not sure of how to best manage this problem.

Boylan Lawyers developed similar procedures and strongly encouraged solicitors to make use of them—it also bears mention that these measures are not just to protect clients; it is also important for our own health and well-being that we take steps to protect ourselves and our families, and our colleagues.

Despite the difficulties, clients appreciated being able to conduct their affairs even during difficult circumstances.

Solicitors appreciated clear guidelines about how best to discharge their duties in this unprecedented situation.

In my view, best practice will remain that the solicitor must meet the testator in person.2 However, the pandemic has highlighted the fact that there are resources available now (primarily video conferencing over the internet) that would allow you to mitigate the risks in a retainer where this is not possible for some reason—though you should proceed with caution in such cases. B Endnotes 1 Esterhuizen v Allied Dunbar Assurance PLC [1998] 2 F.L.R. 668 2 There will never be a time, I think, where the Post Office “LAWYER APPROVED” (which Lawyer?!) Will Kit becomes best practice.

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COVID-19

TECHNICALLY COVID – A SUMMARY OF TECHNOLOGICAL INCREMENTS EXPERIENCED AS A RESULT OF COVID-19 LEGAL TECHNOLOGY COMMITTEE

A GLOBAL PERSPECTIVE

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n response to COVID-19 courts and tribunals worldwide have moved very quickly to a remote presence to avoid the collapse of the justice systems. Hearings conducted via telephone and audio-visual services, and hearings conducted entirely by written submission1 have all been rapidly introduced.

Policies, protocols, techniques and safeguards have been developed by courts, lawyers and governments working together to keep the justice system operating.

There have been some remarkable efficiencies. For example, the Supreme People’s Court of the People’s Republic of China held over 110,000 sessions online between 3 February and 20 March, 20202.

However, there are also tales of human error, including those uncovered by the Transparency Project3 in which incorrect codes have allowed respondents to dial into someone else’s hearing.

It should be noted that the previously online legal systems never missed a beat. The UK’s Money Claim Online4, the British Columbia Civil Resolution Tribunal5, US courts using online platforms such as Matterhorn6 and Modria7, and mediators using Modron8 online dispute resolution software have all reported ‘business as usual’.

The move to online justice is not limited to common law or civil law systems. The Dubai Civil and Commercial Courts moved to 100% teleconferencing

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from 17 March, 2020,9 whilst in Japan nine courts used Microsoft Teams from February, 2020 to expedite evidentiary proceedings. For example, the use of Microsoft Teams enabled participants to look at documents simultaneously.

Online legal proceedings facilitate the day to day workings of a court being more accessible to third parties, including the general public. The Lesotho National broadcasting service provided live coverage of a court case for the first time on 7 May, 202010. The Kansas Supreme Court also offers Oral Argument Livestream11 .

The Peruvian Judiciary have adopted Google’s Hangouts Meet for hearings and internal meetings12, the Supreme Court of India has adopted Vidyo13 for audio-visual hearings, and a shared Google Drive folder in Argentina14 is being used as a repository of good judicial practice for remote working.

Globally, the legal industry is getting comfortable with technology.

WHO ADOPTED WHICH TECHNOLOGY IN AUSTRALIA? The response by Australian Courts to COVID-19 was rapid and varied. Many documents have been published to provide guidance in a fluid situation. As most South Australian state courts are aiming for a return to ‘normal’ during June/ July, 2020, we elect not to repeat that information here.

The Family Court of Australia continues to offer virtual attendance via AAPT audio or Microsoft Teams videoconferencing upon request15 and states: The decision as to how a hearing is conducted is a matter for each judicial officer. In considering the suitability of videoconferencing or teleconferencing, the Court may consider issues such as the nature of the case, the technological facilities available to parties, their lawyers and any witnesses to be called, their ability to effectively participate in the hearing, and how best to uphold the interests of justice16.

All applications and documents continue to be filed using the Commonwealth Court Portal with email only to be used in the event eFiling is not possible.

The Federal Court has adopted a similar stance - all applications and documents are to be filed using eLodgement with fax or email available as a last resort. The Federal Court has perhaps been one of the more progressive courts in its adoption of Microsoft Teams for conferences as well as utilising platforms such as Teams, Dropbox, OneDrive and SIGBOX for document sharing.

The Federal Court’s enthusiasm for online justice was evinced in the recent decision of Perram J refusing an application for an adjournment where the applicants argued a virtual trial was not possible17.

COVID-19

The CourtSA electronic courts management system was launched midCOVID-19 on 18 May, 2020, requiring electronic filing in all SA State courts.

Over-the-counter filing is still accepted during the transition period.

SA LEGISLATION AND COVID-19 During the COVID-19 pandemic we as lawyers had to adapt quickly to an everchanging environment and some limitations within the law, such as when executing legal documents, became apparent.

COVID-19 has seen an anecdotal increase in demand for powers of attorney, advance care directives and wills, the forms for which are all readily available on the internet.18 The common element of the execution of these documents is the need for formal witness attestation, reflecting their importance.

In contrast with NSW, ACT and Victoria19, the SA government decided not to change the existing position that witnesses had to be physically present at the execution of these documents.20 In NSW, the witnessing and attestation of documents by audio visual link was inserted into the regulations.21 This change enabled legal documents to be signed and witnessed by observing the person sign the document in real time, confirm that the signature was witnessed, be satisfied that it is the same document, and provide a statement to endorse the document or a copy of the document.

There are valid concerns around undue influence and clients not comprehending the power of the documents they are about to sign that are not directly addressed by the technology to date.

This is an ongoing discussion to be had as the use of technology has importance that goes beyond the current pandemic, including for country practitioners and remotely based clients.

E-APPEARANCE PROTOCOLS Despite changes to the way that the traditional court room is accessed, legal practitioners are reminded that the Australian Solicitor Professional Conduct Rules22 still apply, including adhering to relevant Court Rules and Practice Directions. The Conduct Rules specifically define a ‘court’ to include tribunals, Parliamentary or legislative inquiries or investigations, Royal Commissions, arbitration, mediation or any other form of dispute resolution.

Rule 18.1 of the Conduct Rules states: A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

A more flexible approach to accessing a court or tribunal via teleconferencing or video conferencing, does not mean that a solicitor should act more relaxed or casually than they otherwise would when physically appearing in court or a tribunal.

Rule 28.1 of the Conduct Rules states: A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.

Therefore, the premises from which the virtual hearing is conducted needs thought to prevent any inadvertent disclosure of proceedings.

Other issues include: 1. You may still require leave from the courts or tribunals to appear remotely.

2. Ensure you obtain instructions from your client to appear remotely (in advance, where possible).

3. Consider your video background - Are there client files visible? Are there other members of the household present?

Confidentiality of client information and the integrity of closed court proceedings must be maintained.

Some video conferencing software has features allowing you to blur your background or impose images that obscure the real scene.

4. Consider the security settings of the device you are using (including your organisation’s email account) as practitioners are still bound to treat client’s confidential information and sensitive data as you would normally.

Practitioners need to be aware of any potential or actual data breaches and act accordingly.

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5. Be mindful that in some jurisdictions, a member of the public, or the media, may have applied to the Court to be included in the virtual hearing, in line with the principles of open justice.23 6. If in doubt, check with the particular court or tribunal that you are appearing in. For example, the Courts Administration Authority24 has addressed the issue of whether a practitioner is required to stand whilst appearing before the judiciary, by stating: ‘When the hearing is about to start you will be admitted into the hearing. There is no requirement to stand when you are addressing the court.’

7. The Australian Cyber Security Centre has released practical guidance for using web based platforms, which can be accessed here: https://www.cyber. gov.au/publications/web-conferencingsecurity 8. The Federal Court of Australia eCourtroom protocol can be accessed here: https://www.fedcourt.gov.au/ online-services/ecourtroom

REFLECTIONS FOR THE NEXT 1000 DAYS ‘Court’ is no longer a physical place. It has proven to work well virtually in most circumstances. However, the limitations of bandwidth, NBN and general internet coverage and uncontrollable distractions such as small children and pets25 have yet to be overcome.

The move to online filing needs to be reviewed. Access by the economically or technologically challenged and cyber security risks arising from third party access to the courts need to be researched.

Whilst the adoption of digital technology by the courts appears to have enhanced the courts’ vital

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characteristics of open justice and procedural fairness, can the same be said for the business of law26?

For some, these changes mean there may be no better time to be practising law. B

Endnotes 1 https://www.domstol.no/en/Enkelt-domstol/ supremecourt/arkiv/2020/written-hearingof-a-criminal-case/ Kemp v Westpac Banking Corporation [2020] FCA 437 https://www.judgments.fedcourt. gov.au/judgments/Judgments/fca/ single/2020/2020fca0437 2 China steps up online litigation services amid coronavirus epidemic http://english.court.gov. cn/2020-03/31/content_37534820.htm 3 Justice on the Alter http://www. transparencyproject.org.uk/justice-on-the-altar/ 4 https://www.gov.uk/make-money-claim 5 https://www.canadianlawyermag.com/practiceareas/adr/b.c.s-civil-resolution-tribunal-keepsdoors-open-during-pandemic/328037 6 https://getmatterhorn.com/ 7 https://www.tylertech.com/products/Modria 8 https://www.modron.com/ 9 https://www.difccourts.ae/2020/03/17/covid-19difc-courts-update/ 10 https://www.youtube.com/ watch?v=4oKFKIoJcXk&feature=youtu.be 11 https://www.kscourts.org/About-the-Courts/ Supreme-Court/Oral-Argument-Livestream 12 https://www.pj.gob.pe/wps/wcm/connect/ cortesuprema/s_cortes_suprema_home/ as_inicio/as_enlaces_destacados/as_imagen_ prensa/as_notas_noticias/2020/cs_n-pj-utilizaplataforma-google-hangouts-para-reunionesvirtuales-27032020 13 https://main.sci.gov.in/pdf/ cir/23032020_153213.pdf 14 https://www.justiciacordoba.gob.ar/ JusticiaCordoba/Inicio/indexDetalle. aspx?codNovedad=22036 15 http://www.familycourt.gov.au/wps/wcm/ connect/fcoaweb/forms-and-fees/court-forms/ form-topics/administrative/form-request-attendelec-comm

16 http://www.familycourt.gov.au/wps/wcm/ connect/fcoaweb/about/news/virtual-hearings 17 https://www.judgments.fedcourt. gov.au/judgments/Judgments/fca/ single/2020/2020fca0486 18 https://www.lawdepot.com/au/power-ofattorney-form/#.XhPDw3duKUk https://advancecaredirectives.sa.gov.au/formsand-guides/forms-and-guides-new https://www.legalzebra.com.au/australian-legalwill-kit-free-draft-will/ https://my-will-online.com.au/start.html https://lsc.sa.gov.au/cb_pages/power_of_ attorney_kit.php 19 All of these jurisdictions authorised the use of audio-visual technology in the witnessing of solemn documents during the pandemic - NSW: 2.7 of Schedule 2 of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020. ACT: COVID-19 Emergency Response Legislation Amendment Act 2020 and ss 4 and 5 of the COVID-19 Emergency Response Act 2020. VIC: COVID-19 Omnibus (Emergency Measures) Act 2020 and COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

20 See ss 6A & 7(1) of the Electronic Communications Act 2000, reg 5 of the Electronic Communications Regulations 2017, s 17 of the COVID-19 Emergency Response Act 2020 and reg 4 of the COVID-19 Emergency Response (Section 17) Regulations.

21 Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 – schedule 1 part 1 section 2.

22 https://www.lawsocietysa.asn.au/pdf/ AustralianSolicitorConductRules2015.pdf 23 See http://www.federalcircuitcourt.gov.au/wps/ wcm/connect/fccweb/reports-and-publications/ publications/corporate-publications/virtualhearings 24 http://www.courts.sa.gov.au/ForLawyers/ Webex%20Support%20Documents/2.%20 Webex%20Hearing%20Protocols.pdf 25 https://www.bailii.org/ew/cases/ EWCOP/2020/16.html 26 Covid-19 will Turbocharge Legal Industry Transformation – Mark Cohen, Forbes; https:// www.forbes.com/sites/markcohen1/2020/03/24/ covid-19-will-turbocharge-legal-industrytransformation/#db665aa11951

TAX FILES

The Problem with Professional Fees PAUL TANTI, PARTNER, THOMSON GEER

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axpayers are regularly confronted with professional fees (most commonly legal and accounting fees) when deciding whether to buy or sell assets or if they are involved in legal disputes.

Apart from the problem of having to pay the professional fees, clients frequently overlook the tax characteristics associated with the payment of professional fees until after the transaction or settlement has occurred. On many occasions it is then too late to adjust the amount of the professional fees to take into account the tax consequences of either the payment or receipt of professional fees.

The most common issues which arise in relation to GST are whether the recipient will be required to remit GST on the amount of professional fees and whether the payer is entitled to an input tax credit for those fees.

As a general rule, the recipient of professional fees will be required to remit GST on the amount received. However, whether the payer is entitled to claim input tax credits in respect of the GST paid on the professional fees can give rise to complications.

The payer of professional fees will be entitled to claim input tax credits if the purpose of paying the fees was to allow the taxpayer to make a taxable supply.

If the purpose of incurring the fees was to make input taxed supplies, no input tax credits can be claimed. Common examples of input taxed supplies are financial transactions, which includes not only borrowing and lending transactions but also the purchase or sale of an interest in a partnership, the purchase or sale of shares and supplying residential premises (other than the supply of new residential premises).

If input tax credits cannot be claimed, the amount of GST may constitute a tax deduction for the payer, form part of the taxpayer’s cost base for an asset, entitle the payer to a deduction under the black hole provisions (section 40-880) of the Income Tax Assessment Act 1997 (ITAA97) or constitute private expenses, in which case there will be no tax consequences for the payer, other than an economic loss.

However, like many things in the tax world, things are not always as simple as they appear.

If a taxpayer incurs professional fees

in obtaining a loan from a financier, at first glance this would appear to relate to a financial supply. However, a deeper analysis is required. If the purpose of obtaining the finance was to make a taxable or GST free supply (for example, purchasing a commercial property), input tax credits can be claimed in respect of the professional fees incurred in obtaining the finance.

If the purpose of acquiring the finance was to make an input taxed supply (for example, renovating residential premises to rent out) it will constitute an input taxed supply and no input tax credits can be claimed. This is confirmed by the Commissioner of Taxation in GSTR 2003/9 at paragraphs 66 and 67. Provisions exist in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) which specifically allow input tax credits to be claimed in these circumstances (section 1115(5) of the GST Act).

This GST issue commonly arises when shares or partnership interests are being purchased or sold. The sale and purchase of shares and partnership interests can involve significant professional fees. The purchase or sale of shares and partnership interests are input taxed supplies which do not entitle the purchaser or vendor to input tax credits for the GST payable on professional fees.

However, in many cases some input tax credits may be available. For example, a transaction which ultimately results in the sale and purchase of shares or partnership interests may have originally started out as or involved considering the potential sale and purchase of assets.

The sale and purchase of assets would be either a taxable supply or potentially a GST free supply as a going concern.

To the extent professional fees were incurred in considering the sale and purchase of assets, negotiating the sale and documenting the sale of assets, even if they ultimately did not proceed, input tax credits should be claimable.

Similarly, the sale and purchase of shares and partnership interests often involves due diligence costs being incurred in reviewing the company’s or partnership’s assets and past transactions and providing advice to the company or partnership in respect of its assets and liabilities in preparation for the sale. Once again, some of these transactions do not relate to the

making of input taxed supplies and may entitle the payer to input tax credits in respect of some of the professional fees.

The other aspect of professional fees which often causes confusion is the recoupment of professional fees in the event of a dispute arising where the defendant, as part of a judgement or a settlement reached between the parties, agrees to reimburse or pay the plaintiff ’s professional fees.

The issue for the defendant is whether it is entitled to claim an input tax credit for the amount attributable to the plaintiff ’s professional fees. For the plaintiff, the issue is whether it is required to remit GST on the amount received from the defendant for its professional fees.

The Commissioner of Taxation’s position is set out in GSTR 2001/4.

Essentially, if the underlying dispute relates to an earlier supply of goods or services which is taxable, the professional fees component paid by the defendant to the plaintiff is likely to constitute part of the consideration for the earlier supply.

The recipient plaintiff would therefore be required to remit GST on the professional fees and the paying defendant entitled to an input tax credit.

A similar result would arise if the settlement or judgement involved the transfer of assets and the payment for them. For example, if the plaintiff sued for the specific performance of the sale of plant and equipment to a defendant purchaser which failed to complete the purchase, any professional fees payable by the defendant to the plaintiff on account of the plaintiff ’s professional fees is likely to form part of the supply of the plant and equipment. This would generally require the recipient plaintiff to remit GST on the amount of the professional fee component and the paying defendant to claim an input tax credit.

However, if the dispute results in the payment of damages and an additional amount on account of professional fees, the recipient plaintiff would not be required to remit GST on the amount received in respect of professional fees.

Similarly, the defendant would not be entitled to claim an input tax credit.

Professional fees can also give rise to complex income and capital gains tax consequences for the parties. B July 2020 THE BULLETIN

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PIVOT OR PERISH: MANAGING A SMALL PRACTICE IN THE GRIP OF A PANDEMIC CHRIS JOHNSTON, LAWYER & REGISTERED MIGRATION AGENT, WORK VISA LAWYERS

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he COVID-19 pandemic has created challenges for many lawyers. The Australian border closure and isolation restrictions have disrupted our day-to-day lives, from small everyday actions such as a handshake to Work From Home (WFH) and videoconferences on Zoom.

COVID-19 has created new vocabulary with terms such as “PPE”, “ISO”, “WFH” and the buzzword “pivot” becoming a part of everyday language.

We are a boutique immigration law practice in a bungalow office west of the city with eight staff. We understand that many of our colleagues have been very seriously impacted by the pandemic and that these troubles are far from over.

While we have had our challenges, we are very fortunate to have had the support we received.

We aim to give an insight into the day-to-day life of work in our small legal practice during the COVID-19 pandemic.

We also delve into attempts to “pivot” our services to survive, or even thrive, during this global pandemic.

We will provide some insights from the perspectives of these different roles. We have eight employees, with roles including practice manager, lawyers and registered migration agents, administration and marketing.

ESCALATION AND DISRUPTION As the reports about the coronavirus continued to get worse in January and February 2020, so did my worries as the business manager.

To be blunt, I was worried about the impact of the coronavirus on our income, including the ability to sign up new work. On the expense side I was worried about our main overheads, being staff wages, rent, and professional registrations including indemnity insurance.

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In these early days, the concerns I had were maintaining sufficient cash reserves to meet obligations and considering if I would need to make difficult decisions in relation to team size.

Being a manager during the early days of COVID-19 included the challenge of reassuring clients and staff, while also feeling increasingly anxious about the future.

When Australian borders closed on 20 March 2020, there was an overload of incoming information from the Federal and State government as well as various industry associations. While attempting to comprehend the new rules and each association’s adaptation to these rules, I also had to reconsider all aspects of the practice. I felt at many times as sense of information overload.

ADAPTATION In normal circumstances, I carefully consider any changes to our systems or staff and try to introduce changes carefully to create the minimum disruption.

COVID-19 stripped away the luxury of time and changes needed to be made fast in order to comply with shifting societal expectations.

The time, thought and emotional investment into restructuring an entire practice was draining. At the same time, I was concerned about the inevitable reduction in revenue and our ability to meet financial obligations.

We scrambled together hand sanitiser and PPE (personal protective equipment).

We adopted new technologies to assist with work from home, which I will cover in more detail later.

COVID-19

The costs associated with adapting to COVID-19 were significant. These included subscriptions to online services, buying technology to assist with work from home and remote appointments, including computers, webcams and printers. In addition, there is a cost to install and set up these new devices. Less tangible, but just as real, was the amount of time required out of the normal work week to accommodate to all of these changes.

There were positive developments in relation to our three major overheads: Wages - There was further relief when we received the news that we had qualified for JobKeeper payments,1 the wage subsidy by the Australian government to ensure staff continued to be employed Rent – The generosity of the landlord allowed us to negotiate a reduction in rent Professional Registrations – The Law Society announced a reduction in professional registration fees.

Admin staff assisted in updating our procedures and notices to clients to meet social distancing requirements and to put up signs through our building.

RESET (AND THE NEW NORMAL) Most of our staff embraced moving back to the office when isolation measures were relaxed.

Like many businesses that received

Chris Johnston had to get get used to his new office environment, which he sometimes shard with his video game playing son.

JobKeeper, a new challenge is to ensure our team have plenty of useful work to do.

This means that all team members are doing more marketing tasks to keep clients signing up.

On the admin side, we are doing the tasks that are important, but not urgent.

File closing, files over seven years old being considered for destruction and generally clearing years of gradually accumulated folders from the shelves.

We are doing everything we can to prepare for the JobKeeper ending in September/October 2020, with this time being the next big challenge.

‘ISO’ & ‘WFH’ Based on the four square metre per person rule introduced by the Federal Government on 20 March 2020, a majority of our staff started working from home.

Our team members were adaptive to the work from home arrangements but we soon recognised a whole world of complexities that came with this arrangement. One of the most common comments about the WFH arrangement was the low levels of motivation due to a change in routine.

There was also a risk that the overlapping boundaries between work and home would bring about overworked employees and a lack of work life balance.

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COVID-19

“WORKING FROM HOME HAS HAD SOME BENEFITS BUT IT DOES NOT SUIT EVERYONE. MY PARTNER LOVES IT AND HASN’T LEFT THE HOUSE IN THREE MONTHS (AND GREW AN ‘ISOBEARD’!). FOR PEOPLE LIKE MYSELF, I ENJOY THE DAY TO DAY FACE TO FACE INTERACTIONS AND WAS GLAD TO RETURN BACK TO THE OFFICE.” –C hristina Lien, Lawyer & Registered Migration Agent For many, including myself, attempting to work in an environment with children, family members and pets were one of the biggest challenges of working from home.

The period of our WFH arrangements coincided with the school holidays. While I was mostly still working from the office, there were days where I had to work from home to accommodate for my partner’s work commitments. The juggle between keeping two teenage boys entertained and staying on top of my tasks was a struggle. It is hard to concentrate with online Fortnight Battles complete with deathscreams and victory dances, as part of your work environment.

With other aspects of everyday life also changing, working from the office was becoming a challenge for some of our staff, including those with school-aged children.

“IT WAS DIFFICULT HAVING TO NAVIGATE HAVING CHILDREN HOMESCHOOLED WHILST WORKING FROM THE OFFICE” – Christine, Office Administrator For others, a city in lockdown provided some positives.

MOST LIKELY BENEFITING FROM THE BREAK IN POLLUTION LEVELS, MORE QUALITY TIME WITH IMMEDIATE FAMILY MEMBERS.” – Karina, Office Administrator

VIRTUAL MEETINGS We shifted to technology-based style communication. While we were able to secure webcams early on, other equipment was sold out nationwide as most of Australia simultaneous began working from home. Subscriptions to software, such as Microsoft Teams, Zoom and Real VNC, were also necessary to facilitate online communication and remote access to files.

Another consideration was the privacy and security of client files and information.

As an immigration law practice that often communicates with clients and stakeholders from overseas, video and telephone conferencing is very familiar to us. Still, the faceless nature of online communication can cause confusion and mix ups.

“I ACCIDENTALLY GOT MY APPOINTMENT TIMES MIXED UP AND STARTED A SKYPE APPOINTMENT 2 HOURS EARLY, ONLY TO HAVE ANOTHER CLIENT CONTACT ME SAYING THEY WERE WAITING. I APOLOGISED AND FORTUNATELY STILL MANAGED TO DO BOTH APPOINTMENTS, BUT IN REVERSE ORDER.” – Chris Johnston, Principal Lawyer and Registered Migration Agent

PPE AND THE EMPTY OFFICE “I WAS SPENDING LESS TIME We adjusted to social distancing TRAVELLING TO AND FROM WORK measures and kept the office open, but DUE TO REDUCED TRAFFIC, with most staff working from home. This meant social distancing measures were KIDS SPORTS AND OTHER in place and there was an abundance of EXTRACURRICULAR ACTIVITIES hand sanitiser. As widely publicised in BEING SUSPENDED MEANT THAT the media, there was a shortage in hand DAILY LIFE FELT LESS RUSHED, BEING sanitisers andPPE, such as face masks. In the end, we were able to source factoryABLE TO GET MORE DONE AROUND direct hand sanitisers and purchased face THE HOUSE, THE ENVIRONMENT WAS masks online.

24 THE BULLETIN July 2020

PIVOTING OUR PRACTICE TO THE COVID-19 ENVIRONMENT The word “pivot” became a popular pandemic buzzword in reference to adapting to meet the changed business conditions. One of our pivots involved examining the effects of the Australian border closure and the measures taken by relevant stakeholders, including the Department of Home Affairs, the Administrative Appeals Tribunal and the Federal Circuit Court, to identify areas of work that were still available to us. We then aimed our marketing efforts at these remaining or growing markets such as appeal work and Citizenship.

“WITH SUCH A DRASTIC CHANGE TO HOW THE WORLD OPERATES, AND THE IMPACT ON MIGRATION WORK SPECIFICALLY, IT SUDDENLY BECAME VERY CLEAR THAT THIS WAS GOING TO BE A VERY BIG PROBLEM FOR A VERY LONG TIME.” – Luke Edwards, Lawyer & Registered Migration Agent Another of our attempts to pivot included a focus on providing COVID-19 updates relating to immigration. This involved Youtube videos talking about the implications of the Coronavirus and the border closure, which has become our most popular videos. While this campaign proved to be effective for online traffic, it did not lead to much paid work.

When you might think that social media and Youtube would be the way to adjust, it was an old-fashioned limited time offer (a bargain) that worked.

Facing a dramatic drop in new enquiries and initial consultations, we

COVID-19

COVID-19 TIMELINE – SIGNIFICANT EVENTS made a decision to offer half-price appointments for a month. This led to a surge in appointments until the work diary was completely booked out.

BARRIERS TO LEGAL SERVICES & A RISE IN RACISM The shift to virtual and online services does not suit everyone. There are equality issues in terms of many people not having the appropriate devices or language and or technology skills to be able access online services. These issues apply to vulnerable groups in the community, including the elderly, people from disadvantaged backgrounds, people who did not grow up in Australia and have language barriers, and people who have not had high level of education or literacy.

For example, we found that elderly migrants still wanted to do appointments in person, with family members as support and to assist with interpreting.

We have already observed the disadvantages of a shift to online systems, through the Department of Home Affairs system, and now this issue is magnified by the social isolation measures leading to reliance on virtual meetings.

There was a sharp increase in racerelated incidents affecting our clients and staff members. For example, one of our staff was yelled at in the supermarket in a racist incident. There was also a rise in racist comments that we received through social media, particularly on YouTube.

Our response was to support our staff, to clearly state we condemned any racism and also to block any racist responses online.

I have chosen to include commentary about access to services and the rise in racism because I did not want to put an overly positive or unrealistic gloss on this COVID-19 related article. Failing to mention some of the negatives of working and living through COVID-19 which could effectively further marginalise those that are experiencing these negative aspects.

TEAM MORALE The working from home arrangements and reduced interaction for those still working from the office led to lower team morale. We addressed this by establishing an online group chat which we used to keep each other updated throughout the day. We also implemented after work

drinks over Zoom as an incentive for staff after the work week.

As the manager, I also had weekly individual meetings with each employee to track their progress and address any challenges.

My continued participation in the Law Society’s Small Practice Committee helped me feel connected to other lawyers and contributed to my sense of purpose.

I believe that industry associations are increasingly important in difficult times.

I also joined the ‘Law Society Members Only’ Facebook group to be able to communicate with other practitioners, without formal face to face networking.

CONCLUSION We hope this snapshot of the challenges that our small legal practice has faced during the early days of the COVID-19 pandemic has provided some useful insights.

Some existing work-related themes, such as the evasive work life balance, were given a new twist with the office going virtual and work from home becoming the norm. We are now all more used to children, pets and partners crashing our work meetings online.

Whether it is pivoting to the changing markets or struggling with a Zoom meeting, we have all had to adapt.

Being a legal practitioner is challenging at the best of times and even more so in a global pandemic.

I encourage any practitioners needing support to reach out to the relevant committees of the Law Society or to professional services.

I ACKNOWLEDGE AND THANK TRAMY NGUYEN FOR HER INVALUABLE ASSISTANCE IN DEVELOPING THIS ARTICLE Sources https://www.ato.gov.au/general/ jobkeeper-payment/ https://www.premier.sa.gov.au/news/ media-releases/news/$10,000-emergencycash-grants-for-small-businesses-impactedby-covid-19 Endnotes 1 https://www.ato.gov.au/general/jobkeeperpayment/

December 31 – A pneumonia of unknown cause detected in Wuhan, China was first reported to the WHO Country Office in China January 25 – The first confirmed case of COVID-19 in Australia February 1 – Federal government announced border closure for incoming travelers from mainland China March 1 – Elderly Perth man becomes Australia’s first COVID-19 fatality March 11 – WHO declares the COVID-19 as a pandemic March 12 – Federal government announced $17.6 billion economic plan, including one-off $750 stimulus payment March 13 – Federal government banned non-essential outdoor gatherings of more than 500 people. Australians urged not to travel overseas.

March 18 – Federal government banned non-essential indoor gathering of more than 100 people March 20 – Australian border closure with the exception of Australian citizens, permanent residents and their immediate family members March 22 – Federal government shuts pubs, clubs, cinemas, gyms and churches. $66.1 billion economic support package announced including $550 Coronavirus supplement to the JobSeeker payment and option to access superannuation early March 24 – Australians banned from travelling overseas under the Biosecurity Act 2015.

March 30 – Federal government announced $130 billion JobKeeper payment March 30 – WVL shift to Work From Home April 9 – Premier Steven Marshall announced $10,000 emergency cash grants for small businesses in SA April 26 – Federal government released new COVIDSafe tracking app May 6 – 14 day Coronavirus-free streak in South Australia May 8 – Federal government announced three-step plan to ease restrictions May 11 – WVL staff come back to work from the office May 26 – 19 day Coronavirus-free streak in South Australia June 1 – SA allows up to 80 people in business premises as businesses, such as pubs, gyms, beauty churches, salons, allowed to re-open.

July 2020 THE BULLETIN

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Employment Law and COVID-19 ADAM CRICHTON, MELLOR OLSSON LAWYERS

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t has long been said that Australia has a complex system of industrial relations.

While there has been considerable work done to reduce and simplify industrial awards, the process of enterprise bargaining remains complex. As such, industrial relations reform has been hovering in the background for many years. The impact of the coronavirus (COVID-19) pandemic has seemingly heightened the awareness of the complexities in the system, and potentially triggered action on reform.

Immediately following the governmentimposed restrictions related to COVID-19, both employers and employees were asking questions about the impact on employment and their respective rights and responsibilities.

One of the first questions that employers started asking was “what am I allowed to do with my staff?” Similarly, employees immediately started asking “is my employment safe?”

First, changes to employment (such as those arising from COVID-19 pandemic) can occur with the agreement between the employer and the employee. This is simply an agreement to vary the employment terms for a short period of time while the business works out how to deal with the pandemic crisis. As with any agreement it requires the genuine consent of both parties involved.

TAKING LEAVE One of the most common questions arising out of the COVID-19 situation is whether employers can direct employees to take accrued leave.

Ordinarily, such a direction depends on whether the employee is covered by an award or enterprise agreement, and what the provisions of that instrument prescribe. If an employee is award or agreement covered, the employer must follow the steps outlined in the instrument.

For example, the Seafood Processing Award1 requires that an employer and employee must first genuinely attempt to reach agreement about taking annual leave before any direction is issued. Failing an

26 THE BULLETIN July 2020

agreement, the employer may only direct leave be taken if the employee has “excessive leave” owing (which is defined as at least eight weeks); the employee’s accrued balance does not drop below six weeks after taking the leave; and the employer’s direction must give at least eight weeks’ notice (but cannot be more than 12 months’ notice) before the leave is taken.

If the relevant employee is not award or agreement covered, the employer may direct annual leave to be taken so long as it is reasonable to do so.

In response to the unusual circumstances faced by the COVID-19 pandemic, and the requirement for many businesses to close as a result of government-imposed restrictions, emergency provisions were included in most industrial awards to allow greater flexibility for taking leave.

‘Additional Measures During the COVID-19 Pandemic’ have been included as a schedule in 99 of the 121 modern awards.

These provisions allow an employee to take up to two weeks unpaid pandemic leave if the employee is required to self-isolate and is prevented from working. The additional measures also allow an employee to take twice as much annual leave at half pay on the agreement of the employer.

In respect of personal leave (commonly referred to as sick leave), employee’s entitlements to take such leave remain unchanged. Many employers have, by agreement, allowed employees to use their accrued sick leave for periods of self-isolation (even if the employee is not actually unwell), and to even utilize sick leave entitlements not yet accrued. It is important to note that such circumstances are by agreement between employer and employee and do not give rise to an entitlement to access personal leave if not sick or caring for a sick relative or dependent.

REDUCING WORK HOURS Many businesses identified early into the COVID-19 pandemic that they were going to have to significantly reduce staff hours in order to try to preserve the employment of as many employees as possible. As businesses suffered very significant downturns and necessarily were forced to reduce hours of operation, consideration turned to how to reduce staff hours.

An employer unilaterally reducing workers’ hours carries significant risk, particularly in respect of claims for

COVID-19

constructive dismissal, or claims of genuine redundancy. An employee whose hours are significantly reduced (at the direction of the employer) may claim that the reduction in hours constitutes a change to existing employment which is of such significance that their position has in fact been made redundant. Alternatively, consideration must also be given to the possibility that reducing an employee’s hours significantly may give rise to a claim of constructive dismissal.

Such a claim was considered by the Fair Work Commission in the case of Urand v Beaconsfield Children’s’ Hub2 where the applicant’s shifts were reduced by about half. The applicant argued that it was therefore no longer tenable for her to work for her employer and that the employer had reasonably anticipated that the applicant would resign as a result of the reduction in shifts. The Commission found that such conduct amounted to constructive dismissal and compensation was ordered.

employees depends on whether the employee is covered by either an enterprise agreement or an award or whether section 524 of the Fair Work Act 2009 applies.

If the employee is covered by either an enterprise agreement or an award the terms of that agreement or award prevail.

The employer is bound to follow the steps as outlined in the relevant industrial instrument including any consultation requirements.

Section 524 of the Fair Work Act provides a right for an employer to stand down an employee provided certain specified criteria are met.

At the onset of the coronavirus pandemic a number of organisations sought to stand down employees relying on section 524 of the Fair Work Act. Media articles covered the more prominent instances of this occurring, for example Qantas’ decision to stand down a significant number of its employees.

There are three primary criteria which must be satisfied for a stand down to be lawful under section 524 of the Fair Work Act. First, the employee must be stood down during a time in which they cannot be usefully employed. Second, one of

STANDING DOWN EMPLOYEES Outside of legislative provisions introduced by the JobKeeper scheme, the ability of an employer to stand down

the following three sub-criteria must be present: a. industrial action (other than industrial action organised or engaged in by the employer); b. a breakdown in machinery or equipment that the employer cannot reasonably be held responsible for; or c. a stoppage of work for any cause which the employer cannot reasonably be held responsible.

The third criteria is the one most relevant for the COVID-19 pandemic.

The principle articulated by the Fair Work Commission in the case of CEPU vs FMP Group3 is that the third criteria dictates that the employee cannot be usefully employed because of the stoppage of work.

What constitutes a stoppage of work has not been subject of a great deal of judicial consideration. However, whilst the nature of events that could cause a stoppage have never been fully prescribed, the requirement of a genuine stoppage of work has been considered and interpreted strictly4. A mere reduction in available work cannot constitute a stoppage.

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27

COVID-19

One of the questions that has arisen out of the COVID-19 situation is whether a genuine stoppage of work occurs when the employer’s business is not trading but there still exists some limited functions that can be performed.

This was considered in Marson v Coral Princess Cruises (NQ) Pty Ltd5. In that case the employer ceased trading as a result of the government imposed restrictions on travel. The applicant was stood down accordingly. He contended that there was nonetheless useful work that he could do and therefore the necessary requirements for a valid stand down pursuant to section 524 had not been enlivened. The Commission found that whilst there was some work the applicant could do and some of it he had traditionally done, the amount of work was severely limited, and the allocation of that work was appropriate and reasonable. As such, the volume of work available to the applicant is insufficient for him to be characterised as “usefully employed”.

REDUNDANCY The rules concerning redundancy remain unaffected by the COVID-19 pandemic. If the employer no longer requires a particular position to be performed by anyone, the position is made redundant and the employee is entitled to the payment of his/her entitlements.

JOBKEEPER In April legislation was passed by the

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parliament introducing the JobKeeper scheme.6 The scheme provides for a payment of $1,500 to eligible employers7 for every eligible employee. Under the scheme, employees must be paid the $1,500 as a minimum.

The scheme also provides for “JobKeeper Enabling Directions” which allows employers to give employees a direction to reduce their hours or days of work (including to no hours) in certain circumstances.

A JobKeeper enabling stand down direction allows an eligible employer to direct an eligible employee to temporarily: • not work on one or more days that they usually work • work for a shorter period than the employee usually works on a particular day or days • work less hours overall than the employee usually works.

An employee must comply with such a direction.

The JobKeeper legislation also provides for directions relating to changing duties8, and changing location of work9.

Recently the Federal Government has announced that it will convene a series of Industrial Relations Roundtables to focus on industrial relations reform. The first of these discussions has taken place.

It will be interesting to see the direction that these discussions take on the back of the COVID-19 experiences. It is most definitely a time to watch this space! B

Endnotes 1 Seafood Processing Award 2020, clause 21.9 2 [2014] FWC 2024 3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v FMP Group (Australia) Pty Ltd [2013] FWC 2554 4 Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd [2016] FWC 8515; Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487 5 [2020] FWC 2721 6 The suite of legislation included: Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020; Coronavirus Economic Response Package (Payments and Benefits) Act 2020; Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 7 Employers are eligible for the JobKeeper payment if all of the following apply: • On 1 March 2020, you carried on a business in Australia, or were either ∘ a not-for-profit organisation that pursued your objectives principally in Australia, or ∘ deductible gift recipient (DGR) endorsed either, as a public fund or for a public fund you operated, under the Overseas Aid Gift Deductibility Scheme (DGR item 9.1.1) or for developed country relief (DGR item 9.1.2) • You employed at least one eligible employee on 1 March 2020.

• Your eligible employees are currently employed by your business for the fortnights you claim for (including those who are stood down or re-hired).

• Your business has faced either a: ∘ 30% fall in turnover (for an aggregated turnover of $1 billion or less) ∘ 50% fall in turnover (for an aggregated turnover of more than $1 billion) ∘ 15% fall in turnover (for ACNC-registered charities other than universities and schools).

• Your business is not in one of the ineligible employer categories 8 See section 789GE Fair Work Act 2009 9 See section 789GF of the Fair Work Act 2009

LEGALSUPER

Super Guarantee Amnesty ends soon ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

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mployers who are behind in paying compulsory Super Guarantee (SG) contributions to staff have until 7 September, 2020 to come forward and take advantage of an amnesty currently being offered by the Federal Government.

This SG amnesty is a one-off opportunity for employers to disclose and pay unpaid SG including interest, that they owe for their employees.

Employers that take advantage of the amnesty can claim tax deductions as part of the process and will not incur administration charges or penalties. Flexible payment plans can also be arranged.

However, interest will need to be paid on the amnesty contributions paid to employees’ super fund accounts.

The Australian Taxation Office (ATO), which is administering the amnesty, has advised that the costs to businesses which choose not to come forward and take advantage of this “one-off ” amnesty opportunity will be “significant”.1 The ATO has also advised that: “After the amnesty ends our ability to remit penalties applied as a result of an audit is limited by law [as contained in the Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020]. This means shortfalls will have a minimum penalty of 100 per cent applied but can be as much as 200 per cent.”2 SG shortfalls for any quarter between 1 July, 1992 and 31 March, 2018 may be eligible for the amnesty if they have not previously been disclosed or are not subject to a current or previous audit.

To benefit from the amnesty, employers must lodge one approved SG amnesty form for each quarter and complete a declaration form confirming application for the amnesty by 11.59pm deadline on 7 September, 2020.

When the SG amnesty was originally announced in May, 2018 (with an initial deadline of 23 May, 2019, now extended to 7 September, 2020) many businesses lodged a super guarantee charge statement disclosing SG shortfalls, with administration charges of $20 per employee per quarter. If already paid, those businesses will be refunded their administration charges under the amnesty if they meet the amnesty criteria.

In a media release on 18 September, 2019, the Assistant Minister for

Superannuation, Financial Services and Financial Technology Jane Hume said: “Since the one-off amnesty was announced, over 7000 employers have come forward to voluntarily disclose historical unpaid super.”

“The ATO estimates an additional 7000 employers will come forward due to the extension of the amnesty. This means around $160 million of superannuation will be paid to employees who would otherwise have missed out.”3 The ATO has further advised that while it acknowledges the impact of COVID-19 and the 2019–20 bushfires, the law does not currently allow for variations to the amnesty deadline date.

SUPER GUARANTEE (SG) CONTRIBUTIONS INCREASE The SG rate will increase from 9.5 per cent to 10 per cent on 1 July, 2021.

Further increases are planned - to 10.5 per cent on 1 July, 2022; then to 11 per cent on 1 July, 2023; to 11.5 per cent on 1 July 2024; and a final increase (under the current law) to 12 per cent on 1 July, 2025.

Employees should note when these changes will take effect and check with their employers at these times to ensure the new SG rate has been implemented. Your super fund should also send you information about the changes.

With compulsory SG employer contributions comprising the lion’s share of super contributions paid, these changes to the SG rate are a material improvement in the extent to which Australians retire with higher retirement savings.

Regular contributions to your super account are important as they allow you to build your account balance over time, to be better placed to for dips in investment markets in the short term (such as during COVID-19). It is always worth remembering that super is a long-term investment.

Modelling by Industry Super Australia shows that as a result of the scheduled SG increases, a 30-year-old worker on an average wage would stand to gain more than $85,000 in extra super by the time they retire.4 In addition to SG payments paid by employers, employees can also make additional voluntary contributions to their super in the forms of both [i] concessional pre-tax contributions (such as salary-

sacrificing) and [ii] non-concessional after-tax contributions (such as personal contributions).

It is important to remember that a cap exists on how much can be contributed to your super each financial year. For 2019/20, irrespective of age or income, the total amount that can be contributed as a concessional pre-tax contribution (e.g. your employer’s SG contributions plus your own voluntary salary sacrifice contributions) is $25,000.

If you are not sure how much superannuation contributions your employer has paid into your super during the year and how much that leaves for you to potentially make additional voluntary salary sacrifice contributions – without exceeding the combined total of $25,000 – your super fund will be able to assist with these calculations.

The current non-concessional aftertax contribution cap is $100,000 for each financial year. However, people under the age of 65 on 1 July in a financial year may be able to contribute in excess of the $100,000 cap up to an amount of $300,000 in a single financial year pursuant to the “bring-forward rule”.

If your total super balance is over $1.6 million, no further non-concessional contributions can be made in any year.

Other options to add to your super are also available – your super fund will be able to provide you with information about other ways to contribute to your super.

This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. B Endnotes 1 See https://www.ato.gov.au/Business/Businessbulletins-newsroom/Employer-information/ Superannuation-guarantee-amnesty/ 2 See https://www.ato.gov.au/Business/Businessbulletins-newsroom/Employer-information/ Superannuation-guarantee-amnesty/ 3 See https://ministers.treasury.gov.au/ministers/ jane-hume-2019/media-releases/extendingsuperannuation-guarantee-amnesty-reunitemembers 4 See https://www.industrysuper.com/media/ greg-combet-dont-delay-the-superannuationincrease/

July 2020 THE BULLETIN

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YOUNG LAWYERS

Dealing with COVID-19: Perspectives from young lawyers

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ne of the most significant consequences of the COVID-19 pandemic, apart from the devastating health impacts, has been the huge disruption to employment, including widespread job losses and reduced hours.

The legal profession has not been immune to this, and young lawyers have been particularly vulnerable, as junior staff tend to be among the first to suffer when cut backs are implemented. Even those who have maintained their employment have had to make major adjustments to their work arrangements, as well as trying to maintain a healthy and fulfilling lifestyle in this challenging and unnatural state of isolation.

To help practitioners deal with these challenges, The Young Lawyers committee has released a Guide titled “Tips for Young Lawyers during COVID-19”.

The Guide is an adaptation of a similar publication produced by the Northern Territory Young Lawyers’ Committee.

The Guide is applicable to practitioners of all ages and experience in

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South Australia and has been designed to be relevant beyond COVID-19. The Guide is divided into five parts: 1. Presence and Mindfulness; 2. Stay Connected; 3. Engage; 4. Avoid; and 5. Seek Support.

Each section features tips and recommendations to guide practitioners through the COVID-19 pandemic, especially those working from home. For example, choosing to take time away from social media or trying meditation and mindfulness exercises can be simple ways to improve mental wellbeing.

The Guide is not a conclusive document however features the Committee’s united position on how to improve mental and physical wellbeing.

The Committee invites every practitioner to read and share the Guide and pass on anything they find particularly helpful.

The Young Lawyers Committee thanks the NTYLC for allowing the Committee to adapt their guide.

YOUNG LAWYES COVID-19 Q&A The Bulletin conducted a Q&A with five young lawyers about their experience during the coronavirus pandemic. We note that the five respondents have been lucky enough to continue their employment, and their experience will obviously be different to those who have been made redundant or stood down, but their responses provide some interesting insight into how practitioners have had to adapt to this strange new world.

BIANCA GEPPA. YOUNG LAWYERS COMMITTEE CO-CHAIR. SOLICITOR, PUBLIC LAW SECTION IN THE CROWN SOLICITOR’S OFFICE Have you worked from home for any period during the pandemic? How was the transition to a home office environment?

YOUNG LAWYERS

facebook.com/YLCSA Yes. Initially it was a bit of a difficult transition, mostly because I had recently started a new job and was still new to the office processes. However, I was very fortunate that my office was well equipped for WFH. What are the practical challenges of practicing in an environment of enforced quarantine?

There were definitely a few technical issues at the start and just not being able to discuss matters with/bounce ideas off colleagues as easily as in an office environment. I have also taken over our entire dining table (as my desk) for the past two months.

Do you have any tips for keeping positive?

At the start of the isolation period, limiting my news intake definitely helped.

What have you been doing to alleviate the feeling of isolation?

Making use of technology and remaining connected with colleagues and friends virtually (for example, having a virtual coffee date during a lunch break).

Are there any changes to legal practice generally or to your working arrangements that you see extending beyond lockdown?

I think this has demonstrated the ability for lawyers to work efficiently from home and might result in more flexible working options throughout the profession. It may also reduce in-person court attendances for instances, in matters where there will be a request for an adjournment that is consented to (which could be done over phone/video or administratively).

CHANEL MARTIN, YOUNG LAWYERS COMMITTEE MEMBER. SENIOR SOLICITOR AT RESOLVE DIVORCE Have you worked from home for any

period during the pandemic? How was the transition to a home office environment?

Yes, we worked from home for approximately one month. We have now transitioned back to the office. The transition was easy, as we do not have hard files and work with a cloud-based system in any event. The difficulty was not seeing our clients face to face. Family law is a very emotional area of law, and connection with clients is imperative to building trust and confidence.

How has your practice area been impacted by COVID-19?

We are busy – the work doesn’t seem to have dropped off.

What are the practical challenges of practicing in an environment of enforced quarantine?

Not meeting with clients who are emotional and understandably devastated by a separation. Often a level of connection, trust and confidence in your ability to assist them through a difficult time is built in the first and second interview.

Did you or your practice put any measures in place that worked particularly and will any of these continue beyond the pandemic?

I am working one day a week from home – which has been great for my own mental wellbeing and ability to have a good work life balance.

Did COVID-19 affect your employment situation?

No, I am busier than before.

Do you have any tips for keeping positive?

Be grateful for where we live and what is happening around the world.

Do you have any tips for keeping motivated?

Exercise and eating healthy. Keeping in contact with friends and family.

What have you been doing to alleviate the feeling of isolation?

I got a rescue dog

Have you learnt any lessons about yourself or legal practice during this time?

I thought I had a good work life balance, but realised I had so much extra time in my day while in quarantine. I am trying to implement more of a work life balance during the week. I am more productive when out of the office and have less distractions. As to my practice area, quarantine has resulted in lots of people reassessing their relationships and family situation, and considering their future and possible separation.

Are there any changes to legal practice generally or to your working arrangements that you see extending beyond lockdown?

The ability to work from home occasionally, or regularly.

Have there been any challenges you think are unique to young lawyers throughout the pandemic?

Not in my firm, but I may be the exception.

MIKAYLA WILSON, YOUNG LAWYERS COMMITTEE MEMBER. LAWYER AT FINLAYSONS Do you have any tips for keeping positive?

Regular exercise helped me to keep a clear and positive mindset during the pandemic. I have made an effort to walk regularly before work and on weekends, and found it helped relieve stress and worry that can arise in such an unprecedented time.

Do you have any tips for keeping motivated?

Having a routine really helped me stay motivated. Setting myself a consistent routine for work days helped me stay focused on tasks and improved my productivity. I also found planning ahead for each day helped to limit the anxiety, July 2020 THE BULLETIN

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YOUNG LAWYERS

and procrastination, both of which can naturally arise in such an uncertain time.

What have you been doing the alleviate the feeling of isolation?

Utilising video call applications at work and in my personal life has helped immensely with maintaining interaction and minimising social isolation from colleagues, family and friends.

How has your practice area been impacted by COVID-19?

Working across two practice areas showcased to me the various impacts COVID-19 can have on different areas.

My litigation matters almost ‘paused’ as the courts slowed and reduced their practices, whilst my practice in wills and estates heightened as amongst the panic, people were eager to get their affairs and estate planning in order.

LAUREN WILLGOOSE, YOUNG LAWYERS COMMITTEE MEMBER. ASSOCIATE AT FENWICK ELLIOTT GRACE Have you worked from home for any period during the pandemic? How was the transition to a home office environment?

I worked from home for a number of weeks. The transition was unusual, to say the least. I work in a small office which is very social and we tend to bounce off each other. I live by myself in a unit, so it was very different to be home by myself all day every day. That said, the commute was much shorter…

How has your practice area been impacted by COVID-19?

I currently work in building and construction law and am experienced in insolvency and bankruptcy, so my practice has not been impacted detrimentally. If anything, I think we have been busier.

What are the practical challenges of practicing in an environment of enforced quarantine?

Reduced ability to work collaboratively has been the most difficult practical challenge for me. Zoom and telephone

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conferences have worked well, however working in a team environment face to face is a much more preferable environment for me.

Did you or your practice put any measures in place that worked particularly and will any of these continue beyond the pandemic?

Half of our team worked from home, besides that however we didn’t implement too many new practices. That said, the increased flexibility and ability to work remotely will definitely continue in some circumstances post COVID. Did COVID-19 affect your employment situation?

Only insofar as working from home, however we managed relatively well.

Do you have any tips for keeping positive?

For me I kept positive by focusing on life after COVID and all of the exciting changes and new found appreciation of “normal activities” – I didn’t know how much I enjoyed a wine in the beer garden until it was taken away!

Do you have any tips for keeping motivated?

I am not one to ask this… motivation is not my forte. For me I just have to get up and show up…

What have you been doing to alleviate the feeling of isolation?

Exercising with friends and staying in touch by facetime and other social media.

Have you learnt any lessons about yourself or legal practice during this time?

I have learnt that I am a collaborative worker who feeds off a social working environment, also I have learnt that hardcopy files are my friend and working solely from a computer is not my thing!

Are there any changes to legal practice generally or to your working arrangements that you see extending beyond lockdown?

More flexibility and working from home when required.

Have there been any challenges you think are unique to young lawyers throughout the pandemic?

I think for young lawyers it can be

difficult to gauge supervision “dos and don’ts” when working remotely (which most people have had to do). It can be difficult to have documents and tasks settled when you are not able to pop into an office or flag a reminder in passing in the hallway.

BIMAYA DE SILVA, YOUNG LAWYERS COMMITTEE MEMBER. ASSOCIATE AT LIPMAN KARAS Have you worked from home for any period during the pandemic? How was the transition to a home office environment?

Yes, like most of us I have been working from home since mid-March and am returned to the office in midJune, which is very exciting! Luckily for me, the transition to a home office was quite seamless. I really enjoyed the flexibility although I very much missed my colleagues – the zoom “coffee” meetings are just not the same!

How has your practice area been impacted by COVID-19?

No, my practice area has not been impacted by COVID-19. I am so thankful to work at a firm that has continued to go above and beyond to support its employees and clients, and stand strong during these times of crisis.

Do you have any tips for keeping motivated?

Yes, I think keeping a structured lifestyle helps to maintain motivation. I like keeping weekly and monthly planners, and maintain daily “to do” lists. These include both my work and social commitments, so that once all the hard work is done, I feel rewarded. There is nothing like checking off a to do list.

What have you been doing to alleviate the feeling of isolation?

Making sure I am around people, even virtually, really helps to alleviate the feeling of isolation. I have continued to organise regular zoom catch-ups with co-workers and friends, and am really looking forward to going back to group exercise!

Partnership reaches 25-year milestone

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n June, 1995, BankSA and the Law Society of South Australia joined forces to provide an outstanding banking package for Law Society Members.

Law Society Executive Director at the time, Dr Barry Fitzgerald said the arrangement negotiated with BankSA would bring many positive financial benefits for Members. At the time, home loan interest rates were 8.25% and deposit accounts were paying 6.25%. Times have certainly changed since then, so have the interest rates, but the partnership is stronger than ever.

Celebrating 25 years of partnership this year, this has been one of the most enduring and stable member benefit partnerships for both organisations. BankSA Chief Executive Nick Reade said the partnership with the Law Society had gone from strength to strength over the years. “We are delighted to mark 25 years of partnership with the Law Society and look forward to continuing to work together in the future.” Mr Reade said.

Law Society Chief executive Stephen Hodder said: “What started as a sponsorship agreement has developed into a true partnership from which both the Society itself and our Members who have taken advantage of the offerings have greatly benefited - not only in financial terms but also through the convenience and efficiency of having a direct, responsive and helpful single point of contact. I, too, am delighted to mark the 25th anniversary of the partnership which I hope will continue to grow for another 25 years.

To mark the occasion, BankSA is providing its best member benefit offer in the history of the partnership.

As a Law Society member, you can get up to 0.4% cashback on your loan amount*.

On a $500,000 loan that’s up to $2,000 back to you (offer ends 30 September, 2020).

Jarrad Cooper, who is now in his fifth year of supporting our Members as our dedicated partnership manager, has assisted many Members to make their money

work better for them. He is particularly passionate about financial education and regularly provides member education sessions for first home buyers, property investors, small business banking and equipment finance.

Jarrad recently assisted a Law Society Member to refinance their home loan and transfer to BankSA. The Member reduced his current interest rate from 3.96% down to 2.29% and saved $5,710 a year in interest payments. The Member also received his member cashback and a refinance rebate totalling $4,340 which covered his costs to switch banks with funds left over.

There’s never been a better time to consider your options, with a generous offer and historically low interest rates.

Contact Business Development Manager Jarrad Cooper on the details below for more information about BankSA’s home loan options for Law Society Members. *Terms and conditions apply. Contact Jarrad Cooper for T&C’s. B

July 2020 THE BULLETIN

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RISK WATCH

Advising as to Superannuation Death Benefits – the importance of getting it right GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

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egal issues surrounding Superannuation Funds, particularly in the context of deceased estates, have occurred more frequently over the last few years and it is likely that this trend will continue. The relevant legal issues are complex and great care should be taken when advising on matters such as the payment of death benefit from self-managed superannuation funds in particular.

The importance of “getting it right” in this area is demonstrated by the recent Victorian Court of Appeal of Wareham v Marsella [2020] VSCA 92 (20 April, 2020).

In this case a Superannuation Fund was established in 2003 on behalf of Mrs Helen Swanson. Mrs Swanson was the only member of the Fund until her death on 27 April, 2016. At the time of her death Mrs Swanson and her daughter Mrs Wareham were the trustees of the Fund.

Mrs Wareham is Mrs Swanson’s daughter from a previous marriage. Mrs Swanson also had a son, Charles Swanson from the same previous marriage. Mr Marsella was Mrs Swanson’s husband for 32 years until her death.

Following Mrs Swanson’s death, Mrs Wareham, as the surviving trustee appointed her husband as the second trustee of the Fund. They then determined to pay the entirety of the death benefit under the Superannuation Fund (around $450,000) to Mrs Wareham. Mr Marsella commenced proceedings in the Victorian Supreme Court seeking Orders removing Mrs Wareham and her husband as trustees of the Fund and appointing a substitute trustee.

McMillan J, in the Trial division of the Victorian Supreme Court, granted the

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relief sought to Mr Marsella on the basis that Mr and Mrs Wareham had exercised their discretion as trustees without giving real and genuine consideration to the interests of the dependants on the Fund. The case is of great interest for its consideration of what will constitute “real and genuine consideration” by a trustee in respect of the payment of a death benefit.

The Superannuation Fund in question was established by Mrs Swanson’s Accountant in 2003. At that time Mrs Swanson signed a Binding Death Benefit Nomination Form nominating her grandchildren as beneficiaries. This Death Benefit Nomination Form expired before her death and was not replaced. In April, 2015 Mrs Swanson executed her last Will which provided for Mr Marsella to be the Executor of the Will and that he retain a life interest in the matrimonial home and the sum of $100,000. It also stated that no further provision was made for Mr Marsella from the Estate bearing in mind that the bulk of the assets in the Estate were pre-marital assets acquired during Mrs Swanson’s previous marriage. It was noted that Mr Marsella had monies of his own and business interests of his own.

It will come as no surprise that following Mrs Swanson’s death relations between Mr Marsella and Mrs Wareham became strained. There was evidence of a physical altercation between them over possession of an antique clock. Mr Marsella also commenced proceedings seeking further provision from the Estate.

In April, 2017 Mrs Wareham and Mr Wareham, as the then current trustees of the Superannuation Fund signed a Minute of Meeting stating that they had

given “careful consideration of (sic)” all of Mrs Swanson's dependants as defined by the Trust Deed of the Fund and Mrs Swanson's wishes as stated in the earlier Binding Death Benefit Nomination Form and as a result determined to pay the entire death benefit to Mrs Wareham.

The Trust Deed contained a definition of “Dependant” which included the spouse or widower of the Member. The Court of Appeal stated that it was plain from this definition that Mr Marsella, Mrs Wareham and Charles Swanson (who played no role in the litigation) were “dependants” as defined. The Court also noted that it emerged from that definition that the binding death benefit nomination executed

by Mrs Swanson at the commencement of the fund was always invalid because her grandchildren were not dependants in accordance with the Trust Deed.

When Mr Marsella became aware that the assets of the Superannuation Fund were being sold he engaged solicitors who wrote to Mrs Wareham’s solicitors seeking an explanation. In this correspondence Mr Marsella’s solicitors alleged that the assets in question were effectively Estate assets and asked why Mr Marsella, as the executor had not been consulted in relation to dealing with them. Mrs Wareham’s solicitors replied asserting that the Superannuation did not form part of the Estate. This much was correct. The letter also went on to assert, however, that Mr Marsella was neither a member, trustee or beneficiary of the Fund. The Trust Deed also contained a definition of “Beneficiary” which included a Dependant. This meant that the assertion in Mrs Wareham’s solicitor’s letter that Mr

RISK WATCH

Marsella was not a beneficiary of the Fund was plainly incorrect; he was a “Dependant” as defined, and therefore a “Beneficiary”.

The Trial Judge addressed the factors which were relevant for the Trustees to consider whilst deciding how to distribute the Superannuation funds. These considerations included the intention of Mrs Swanson as settlor of the Fund, the financial circumstances and needs of the dependants and the relationship between Mrs Swanson and Mr Marsella. She found that ignoring Mr Marsella’s substantial relationship with Mrs Swanson and relatively limited financial circumstances demonstrated a failure by Mrs Wareham to take into account a relevant consideration.

Her Honour said that Mrs Wareham had acted in the context of uncertainty, misapprehensions as to the identity of a beneficiary (mainly by reason of incorrect assertion that Mr Marsella and the Estate were not beneficiaries), her duties as trustee and in a position of conflict. Her Honour held that it was appropriate for Mr and Mrs Wareham to be removed as trustees.

The Court of Appeal dismissed Mrs Wareham’s appeal and in doing so endorsed the principles set out in Karger v Paul [1984] VR 161 governing the exercise of a trustee’s absolute and unfettered discretion. In that case Mc Garvie J said that “it was an inherent requirement of the exercise of any discretion that it be given real and genuine consideration.. [T]here must be the exercise of an active discretion…The courts will examine whether a discretion has been exercised irresponsibly, capriciously or wantonly”.

The principal ground of appeal advanced on behalf of Mrs Wareham was that the lawyer’s letter referred to above

was written after the impugned decision in a litigious context in which it was not safe to infer that it reflected either the advice previously given by her lawyers or, therefore, her understanding of the Trust Deed at the time of the decision. The Court of Appeal rejected this argument, finding that, even allowing for these features the lawyer’s correspondence was striking for the definitive position it took with respect to Mr Marsella. The key letter was written only 10 days after the impugned decision. It was therefore scarcely likely that responsible lawyers would write such a letter if they had actually previously advised Mrs Wareham that Mr Marsella was both a Dependant and a Beneficiary under the terms of the Trust Deed.

The Court of Appeal emphasised that the solicitor’s letter and the Minutes showed that the trustees felt that the Estate had no enforceable right to be considered as a potential beneficiary and in that they were mistaken. It was found that the inference that the lawyers had advised Mrs Wareham in terms that led her to think that she was not required to give proper consideration to the position of the Estate as a potential beneficiary was available on the evidence.

Further, the Court of Appeal found that the fact that there may have been good grounds for the discretion not to be exercised in favour of Mr Marsella (i.e. the terms of the nomination in favour of the grandchildren and of the Will itself) to be irrelevant once it had been decided that the trustees did not exercise the discretion upon real and genuine consideration. The fact that the discretion could have been exercised in the same way did not alter

the fact that there had not been a proper exercise of the discretion.

On the question of conflict, it was accepted that the Trust Deed itself acknowledged that Mrs Wareham would be in a position of potential conflict and that therefore the Deed endorsed that prospect. It was found however that the Trust Deed was silent on the altogether different circumstances of there being an actual conflict. The Court said that it was obvious that such an actual conflict arose in this case.

It can be seen that none of the advisers in this case particularly covered themselves in glory. The accountant had Mrs Swanson sign a Binding Death Benefit Nomination that was ineffective on the terms of the Trust Deed that they themselves had drawn. Mr Marsella’s solicitors made mistaken assertions about the Superannuation assets forming part of the estate.

Perhaps most critically, Mrs Wareham’s lawyers’ incorrect assertions about Mr Marsella’s not being a Beneficiary seems to have played a part in the orders made against Mrs Wareham and her and her husband’s removal as trustees. Whilst the writer has no inside knowledge of the matter, and there may always be confidential matters within the solicitorclient relationship that could prevent it, it doesn’t take too much to imagine that Mrs Wareham might seek to make a claim against her lawyers.

The lesson is to take particular care when advising on Trust Deeds and Superannuation Death benefits, making sure that the particular terms of each applicable document are considered. B July 2020 THE BULLETIN

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CASE NOTE

REFLECTIONS ON THE RECENT HIGH COURT DECISION IN LOVE: THE CONSTITUTION, INDIGENOUS RIGHTS AND IMMIGRATION LAW KATE SLACK AND ARRON HARTNETT, COUNSEL, QLD BAR

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n 11 February, 2020 the High Court handed down its decision in Love v Commonwealth of Australia [2020] HCA 3 (‘Love’).1 The decision, by a majority of four judges to three, determined that Aboriginal Australians, according to the ‘tripartite test’ for Aboriginality described

by Brennan J in Mabo v Queensland (No. 2) (‘Mabo’),2 were not within the reach of the Commonwealth Parliament’s so-called ‘aliens power’ in section 51(xix) of the Constitution.

This article briefly examines the factual background of both plaintiffs in Love, the constitutional and legislative issues raised by the case, the High Court’s decision and reasoning, and some observations about potential, future implications that the judgment might have (particularly for Aboriginal and Torres Strait Islander people in Australia).

BACKGROUND Love involved two plaintiffs, Mr Love and Mr Thoms, each of whom were born overseas. Neither Mr Love nor Mr Thoms are Australian citizens. Mr Love was born on 25 June, 1979 in Papua New Guinea (‘PNG’) and is a PNG citizen by birth. Since 18 October, 1985, he has resided continuously in Australia and has not departed. Mr Love identifies as a descendant of the Kamilaroi tribe. He is recognised as a descendant by at least one elder of the Kamilaroi tribe. His paternal great-grandfather was descended, in significant part, from Aboriginal

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inhabitants of Australia who lived in Australia prior to European settlement.

Mr Thoms was born on 16 October, 1988 in New Zealand. He is a New Zealand citizen by birth. Since 23 November, 1994, Mr Thoms has permanently resided in Australia. He identifies as a member of the Gunggari People and is accepted by other Gunggari people as such. The Gungarri People hold common law native title in respect of lands in Queensland’s Maranoa region.3 The Gunggari People’s land claims were recognised in two separate Federal Court proceedings in 2012 and 2014.

Because neither of the men were citizens of Australia, their lawful presence in Australia depended upon their each holding a valid visa. Both Mr Love and Mr Thoms had types of permanent residence visas which permitted them to indefinitely remain in Australia. Their status as non-citizens, however, made their lawful right to remain in Australia conditional upon the continued validity of each of their permanent residence visas. Each of the men were convicted in Queensland of criminal offences. On 25 May, 2018, Mr Love was sentenced for an offence against the Criminal Code 1899 (Qld) (Code) section 339(1) (assault occasioning bodily harm). He was sentenced to a term of imprisonment of 12 months. On 17 September, 2018, Mr Thoms was sentenced for an offence against the same provision of the Code (in a domestic violence context). He was sentenced to a term of imprisonment period of 18 months.

Because Mr Love and Mr Thoms were sentenced to periods of imprisonment of 12 months or more, each of their permanent residence visas was mandatorily cancelled.4 This cancellation revoked their right to remain in Australia as lawful non-citizens and both were taken into immigration detention. Both men requested that the mandatory cancellation be revoked. On 27 September, 2018, a delegate of the Minister revoked the mandatory cancellation of Mr Love’s visa and he was released from detention. Mr Thoms’ revocation request was refused and he remained in immigration detention throughout the High Court proceedings.

CONSTITUTIONAL AND LEGISLATIVE ISSUES Litigants challenging the cancellation of their visas generally have very limited rights of review. The Migration Act 1958 (Cth) (‘Migration Act’) purports to oust the jurisdiction of courts to review migration decisions of the Minister (or delegate) through a privative clause.5 The plaintiffs avoided the operation of the privative clause by commencing proceedings in the High Court’s original jurisdiction under section 75(iii) of the Constitution seeking damages for false imprisonment for the period of their detention. A key hurdle for the plaintiffs was that their detention appeared to be authorised by section 189 of the Migration Act. That section, broadly, requires officers of the Department of Immigration and

CASE NOTE

Border Protection to detain persons that they reasonably suspect are unlawful non-citizens until they are removed from Australia under section 198.6 Because it was not in dispute that the plaintiffs were not Australian citizens, the plaintiffs had to show that section 189 could not have valid application to them.

The primary way that the Commonwealth Parliament regulates the detention and deportation of unlawful noncitizens in Australia through the Migration Act is by using the ‘aliens power’ in section 51(xix).7 If the plaintiffs were incapable of falling within the meaning of the term ‘alien’ for section 51(xix), then section 189 could not be valid in its application to either plaintiff.8 The plaintiffs argued that they could not possibly fall within the ordinary understanding of the word ‘alien’ in section 51(xix) because, despite their lack of Australian citizenship, they were Aboriginal Australians.

THE DECISION The High Court, by majority,9 decided that Aboriginal Australians, understood according to the tripartite test in Mabo,10 are not within the reach of the ‘aliens’ power in section 51(xix) of the Constitution. The tripartite test involves a person self-identifying as an Aboriginal person, showing descent from Aboriginal ancestors and demonstrating that people enjoying traditional authority in that person’s Aboriginal community recognise the person as a member of the

community. Each member of the majority authored a separate judgment. Three members of the Court dissented, and each dissenting member of the Court similarly authored a separate judgment.

The majority all accepted that, while the power of the Commonwealth Parliament to legislate with respect to aliens is a broad power, including a general power to determine who an alien is,11 the term ‘alien’ does not mean whatever the Parliament says that it means.12 In Pochi v Macphee,13 Gibbs CJ explained that ‘the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s. 51 (xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’. In Nolan v Minister for Immigration and Ethnic Affairs, the High Court observed that, as a matter of etymology, ‘alien’ means ‘belonging to another place’.14 The plaintiffs’ submission was that the mere fact of their being citizens of a foreign country was not enough to make them ‘aliens’. They submitted that Aboriginal Australians, understood according to the ‘tripartite test’ in Mabo, fell within a group of persons who could not possibly answer the description of an ‘alien’ within the ordinary understanding of that word. The majority accepted both of those propositions. The divergence of the reasoning of the Court (both the majority and the minority judges) does not permit an expansive exegesis of all of the

reasoning in the judgments in an article of this length. But, in essence, the majority considered the unique position that Aboriginal Australians have in Australia, both in relation to its lands and waters, and also the Australian polity. Bell J noted that: [t]he position of Aboriginal Australians, however, is sui generis. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.15 In relation to Australian lands and waters, the majority made significant reference to Mabo, in which the High Court first decided that Indigenous Australians’ rights and interests in land survived the Crown’s acquisition of sovereignty over Australia. The plaintiffs submitted that it was significant that Aboriginal Australians were the only persons capable of holding common law native title. However, the plaintiffs argued that even if native title had been extinguished, that did not mean that Aboriginal Australians do not continue to have a unique connection with Australia.16 Gordon J wrote that native title ‘is one legal consequence flowing from common law recognition of the connection between Aboriginal Australians and the land and waters that now make up Australia’.17 Her Honour said that Aboriginal Australians July 2020 THE BULLETIN

37

CASE NOTE

not being aliens for section 51(xix) is simply another consequence of the recognition of that connection that the common law has always known.

In relation to the connection between Aboriginal Australians and the Australian polity, Edelman J pointed out that metaphysical ties of a non-Indigenous Australian’s birth on Australian soil to an Australian citizen parent was sufficient to establish that a person was not an alien. His Honour concluded that ‘[t]he same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or “mother nature”’.18 Nettle J saw the connection between Aboriginal Australians and the polity as one involving reciprocal and permanent obligations of protection (by the Crown) and allegiance (by Aboriginal people to the Crown). The content of the obligation of protection, his Honour said, necessarily ‘extends to not casting [an Aboriginal person] out of Australia as if he or she were an alien’.19 The minority judges expressed concern that the judgment gives rise to issues of ‘competing sovereignty’.20 Kiefel CJ and Keane J both expressed concern, particularly with the aspect of the Mabo test that gives authority to the elders of an Aboriginal community to (in part) determine Aboriginality (thereby preventing the Commonwealth Parliament from designating such people aliens). Kiefel CJ called this a ‘kind of sovereignty which was implicitly rejected by Mabo (No 2)’.21 Keane J said that a determination by Aboriginal elders that a person is an Aboriginal person and thus beyond the reach of the aliens power amounts to ‘an exercise of political sovereignty by those persons’.22

38 THE BULLETIN July 2020

IMPLICATIONS Immediate implications At a narrow level, the case provides a functional limit on the Commonwealth Parliament’s power to treat Aboriginal Australians as aliens (even if they are non-citizens). Effectively, this immunises Aboriginal Australians from deportation under section 198 of the Migration Act, and any detention anterior to deportation under section 189. In that sense, the practical impact of the narrow ratio in Love,23 is likely to be minimal. Most Aboriginal Australians are Australian citizens because they are born in Australia to Australian citizen parents.24 Australian citizens, regardless of their race, are not liable to detention in, or expulsion from, the Commonwealth because they are categorically not ‘aliens’.

Because a person’s Aboriginality is a question of fact,25 it remains to be seen whether other federal courts will, for the purposes of section 51(xix), consider the tripartite test in Mabo as an exclusive and exhaustive test for how a person must prove that they are an Aboriginal Australian. Anderson J of the Federal Court, in obiter comments, has doubted that that is so, suggesting that it is ‘for future argument by a non-citizen of Australia that, on the basis of his or her Aboriginality, he or she is not an alien notwithstanding that he or she does not satisfy each of the three elements of the tripartite test’.26 It was not necessary to consider other modes of proof in Love.

The plaintiffs had framed their case as one in which they were Aboriginal Australians according to the test in Mabo (No 2).27 Certainly, the Mabo test does not at some broader level dictate what it means to be ‘Aboriginal’ in a factual sense for every

legal purpose, as recent New South Wales Court of Appeal authority makes clear.28 Broader implications At a broader level, the case shows that a majority of the High Court consider Aboriginal Australians’ relationship with both the lands and waters of Australia, and the Australian polity, as unique. Because a case of this nature has never been decided, its impact on other legal and constitutional issues remain to be seen.

Nettle J explained that the common law of Australia must have been taken to have always ‘comprehended the unique obligation of protection owed by the Crown to [Aboriginal] societies and to each member in his or her capacity as such’.29 His Honour also observed that the protection cannot be cast off by the exercise of the Crown’s power to extinguish native title.30 Predicting whether such statements have application beyond aliens power jurisprudence is difficult, but these sentiments are reminiscent of the type of fiduciary obligation, recognised in Canada, that the Crown owes its Indigenous people.31 Toohey J in Mabo referred to a ‘trust-like’ or ‘fiduciary’ relationship between he Crown and Indigenous people in terms of native title,32 but the existence of such a relationship has never been formally decided.

Concerns about the fracturing of sovereignty were directly addressed by the majority judges. The decision does not call into question the principle, settled in Mabo, that the sovereignty of the Crown cannot be challenged in an Australian municipal court.33 Gordon J, who wrote extensively about sovereignty in her reasons, explained that ‘[r]ecognition of Indigenous people as part of the “people of Australia” denies that Indigenous people retained,

CASE NOTE

or can now maintain, a sovereignty that is distinct or separate from any other part of the “people”’.34 The judgment does not, as some have asserted, created a separate category of persons. The binary distinction between ‘alien’ and ‘non-alien’ is, and has always been, the law in Australia. The difficult interpretative issues that the aliens power has thrown up have largely been a by-product of Australia’s protracted journey to emerge as a fully independent nation with its own concept of an ‘Australian community’.

Aboriginal people form an indelible part of that community.

The majority judgments are important for another reason. Despite the extensive reference to Aboriginal Australians’ unique relationship with Australia, there is no mention of them in the Constitution.35 The case should not be seen as going as far as amounting to ‘judicial recognition’, in a broad sense, of Aboriginal Australians in the Constitution. Love explores, and shows, that the common law recognises a unique relationship that Aboriginal Australians have with Australia. Because the Constitution was drafted against the backdrop of the common law, that unique relationship will sometimes have occasion for constitutional significance.

But Love cannot be seen, nor should it be seen, as a substitute for the constitutional recognition for which Indigenous Australians have long fought.36 Instead, the case is one strand in the tapestry of significant and thoughtful work that should form part of the much broader conversation about constitutional recognition for Indigenous Australians.

The authors of this article, Kate Slack and Arron Hartnett appeared, led by Stephen Keim SC, for the plaintiffs in Love. B

Endnotes 1 The case was two consolidated special cases (Love v Commonwealth and Thoms v Commonwealth) which were referred to the Full Court to be argued together 2 (1992) 175 CLR 1.

3 http://www.gunggaripbc.com.au/gunggaricountry/ 4 Visas are mandatorily cancelled if a person is sentenced to a period of imprisonment of 12 months or more: Migration Act 1958 (Cth) section 501(3A). The person is then required to show reasons why that mandatory cancellation should be revoked, if the person chooses to do so: Migration Act 1958 (Cth) section 501CA. 5 Migration Act 1958 (Cth) section 474. Although, as explained in Plaintiff S157 v Commonwealth (2003) 211 CLR 476, the Commonwealth Parliament cannot oust the jurisdiction of the High Court to issue the remedies listed in section 75(v) of the Constitution which are aimed at challenging decisions on the basis that they are affected by jurisdictional error.

6 An unlawful non-citizen is a non-citizen who does not have a visa and is present in the migration zone: Migration Act 1958 (Cth) s 14(1).

7 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26 (Brennan Deane and Dawson JJ).

8 This was most clearly expressed by Nettle J: Love at [285]. See also, Acts Interpretation Act 1901 (Cth) section 15A. 9 Bell, Gordon, Nettle and Edelman JJ; Kiefel CJ, Gageler and Keane JJ dissenting.

10 (1992) 175 CLR 1 at 70 (Brennan J).

11 The most obvious example of how this is exercised is the conferring or granting of Australian citizenship under the Australian Citizenship Act 2007 (Cth).

12 Love at [50] (Bell J); at [236] (Nettle J); at [311] (Gordon J); and at [395] (Edelman J).

13 (1982) 151 CLR 101.

14 (1988) 165 CLR 178 at 183.

15 Love at [74] (Bell J) (footnotes omitted). Gordon J (at [333]) also expressed that Aboriginal Australians occupy a unique or ‘sui generis’ position in Australia.

16 Written submissions of the plaintiffs filed 2 April 2019 at [44] < https://cdn.hcourt.gov.au/assets/ cases/02-Brisbane/b43-2018/Love_v_Cth_B432018-Thoms_v_Cth_B64-2018_-_Joint_Pltfs_ subs.pdf>.

17 Love at [364].

18 Love at [466].

19 Love at [280].

20 Love at [25] (Kiefel CJ), and at [197] (Keane J).

21 Love at [25] (Kiefel CJ).

22 Keane J at [197].

23 The ratio in Love is probably best expressed by Bell J at [81] ‘I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’.

24 Australian citizenship is automatically conferred on a child of an Australian citizen or Australian permanent resident: Australian Citizenship Act 2007 (Cth) section 12.

25 Love at [75] (Bell J).

26 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [197] (noting comments of Bell J in Love at [80]).

27 Nettle J, however, could not be satisfied on the facts that Mr Love met the tripartite test (at [287]-[288]).

28 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [153] (Basten JA) (regarding the meaning of ‘Aboriginal child’ for the purposes of the Adoption Act 2000 (NSW)).

29 Love at [272] 30 Love at [277].

31 There is a line of authority to this effect in Canada, starting with Guerin v The Queen (1984) 2 SCR 335.

32 Mabo (1992) 175 CLR 1 at 96-97.

33 Mabo (1992) 175 CLR 1 at 31. (See also, Love at [356] (Gordon J)).

34 Love at [356].

35 Since the adoption of the Constitutional Alteration (Aboriginals) 1967 the only two references to Aboriginal people in the constitution were (properly, in the context of those sections) repealed.

36 See for example, Final Report of the Referendum Council, 30 June 2017, Uhm, Statement from the Heart, at p i. <https://www. referendumcouncil.org.au/sites/default/files/ report_attachments/Referendum_Council_ Final_Report.pdf> accessed 19 May 2020.

July 2020 THE BULLETIN

39

COMMERCIAL LEASES

The effect of amendments to the Retail and Commercial Leases Act JOHN CHAPMAN, SMALL BUSINESS COMMISSIONER

F

rom 1 July, 2020, a series of amendments to the Retail and Commercial Leases Act 1995 (the Act) take effect and it is critical that practitioners who provide advice or services to lessees and lessors acquaint themselves with the changes which passed through the Parliament in December, 2019.

Below is a summary of these changes: • It is possible for a retail shop lease to move in and out of the scope of the Act. • The rental threshold and the amount of a security bond are both exclusive of GST. • The value of a bond has increased from an amount of up to four week’s rent to an amount of up to three months’ rent – section 19.

• The definition of a public company has been amended to have the same meaning as in section 9 of the Corporations Act 2001 meaning that a public company is a company other than a proprietary company – section 3(1).

• An overseas company is excluded from the coverage of the Act if it is registered on an international stock exchange – section 4(2)(e).

• A public charitable company that is registered with the Australian Charities and Not-for-profits Commission will not be excluded from the Act to ensure that this type of lessee is still afforded the protections provided under the Act – section 4(2)(e)(i).

• Classes of leases and licences provided

by State and Local Government may be excluded from the Act by regulation – section 4(2)(g)(ii).

• A registered lease, which at the time of registration falls outside the rental threshold, shall remain outside the Act regardless of any increase to the threshold that would bring the lease within the scope of the Act – section 4(3).

• The Valuer-General will formally review the rental threshold, which

40 THE BULLETIN July 2020

currently stands at $400,000 by 30 October, 2022 and every five years thereafter – section 6A. • A copy of the proposed retail shop lease is to be provided by a lessor to the prospective lessee as soon as negotiations are entered into, noting that the particulars of the lessee, the rent and the term of lease are not required – section 11(1). Failure to comply with section 11(1) may result in a penalty of up to $8,000.

• At the time when a copy of a proposed lease is provided to a prospective tenant, the landlord or person acting on behalf of the landlord must also provide the prospective lessee with a copy of the Small Business Commissioner’s information brochure, which is referred to as the Retail & Commercial Leasing Guide – section 11(2).

Failure to comply with this requirement may result in a penalty of up to $8,000.

• Before a retail shop lease is entered into, the lessor must give the lessee a signed disclosure statement – section 12(1). Failure to comply with section 12(1) may result in a penalty of up to $8,000.

• A lessee must, within 14 days of being served with the disclosure statement, return a signed acknowledgement of the disclosure statement to the lessor – section 12(4)(b).

• The time for a respondent to dispute the repayment of a security bond has increased from 7 days to 14 days – section 20.

• A lessor must return a bank guarantee within two months after the lessee has performed all obligations secured by the bank guarantee – section 20AA. Failure to comply with section 20AA may result in a penalty of up to $8,000.

• Any period of “holding over” does not imply a new lease term and allows either the lessor or the lessee to terminate the period of hold over – section 20B(3)(b).

• The Small Business Commissioner has the power to certify exclusionary clauses, for which the Commissioner may require payment of a fee prescribed by the regulations – section 20K. • In addition to the Minister and the Magistrates Court, the Small Business Commissioner now has the power to grant an exemption from all or any provisions of the Act – section 77.

COMMERCIAL LEASES

â&#x20AC;˘ Penalties under the Act have been increased to broadly align with CPI increases of 68.4 per cent between 1995 and 2015. â&#x20AC;˘ The Landlord and Tenant Act 1936 has been amended to clarify that actions for distress for rent lie solely within the jurisdiction of the Magistrates Court.

To provide some context for the changes, the Act was enacted on 6 April, 1995 and commenced operation on 30 June, 1995. The Act was introduced to regulate the leasing of retail shops and replace Part IV of the Landlord and Tenant Act 1936. The primary purpose of the Act is to protect the position of lessees of retail shop premises who pay rent below a specified threshold. The Act operates to render void provisions of leases that are contrary to provisions of the Act. Since the commencement of the Act, significant amendments include the implementation of rules in relation to the granting of a preferential right of renewal to shopping centre lessees when their lease expires (sections 20A to 20N), limiting the liability of a lessee when their lease is assigned (section 45A) and the introduction of rules to govern the leasing of a shopping centre mall space on a casual basis (section 62A).

The Retail and Commercial Leases Regulations 1995 expired on 1 September, 2010, and the Retail and Commercial Leases Regulations 2010 commenced on the same day. The most significant amendment of the 2010 regulations was to raise the threshold from $250,000 to $400,000 from 4 April, 2011.

In the lead up to the March, 2014 election, the former Government and the then Opposition committed to a review of the Act. That review was initiated in December 2014 by me on behalf of the (former) Minister for Small Business Hon. Tom Koutsantonis and conducted by retired District Court Judge Alan Moss. Mr Moss handed down his review on 14 April, 2016.

Following further stakeholder feedback received in relation to the Moss Review, the former Government introduced the Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017 in July, 2017. The Bill passed in the House of Assembly but lapsed when Parliament was prorogued prior to the State Election in March, 2018.

After further consideration by the current Government, a draft Retail and Commercial Leases (Miscellaneous) Amendment Bill 2019 in early 2019. The Small Business Commissioner sought feedback on the 2019 Bill from a number of Government

departments, as well as key industry groups and organisations on a confidential basis. I thank the Property Committee from the Law Society and in particular Mr David Hopkins for their advice during the process of the development of the Bill.

The Retail and Commercial Leases (Miscellaneous) Amendment Bill 2019 passed in the Lower House on 24 September 2019 and passed in the Upper House on 10 December, 2019. His Excellency the Governor assented to the Retail and Commercial Leases (Miscellaneous) Amendment Act 2019 on 19 December, 2019.

On 14 May, 2020, His Excellency the Governor in Executive Council proclaimed the Retail and Commercial Leases (Miscellaneous) Amendment Act 2019 and varied the Retail and Commercial Leases Regulations 2010. The Act is committed to the Attorney-General Hon. Vickie Chapman MP. Practitioners seeking further information should visit the Small Business Commissioner website at: www.sasbc.sa.gov.au At the time of writing our office is continuing to operate virtually and I welcome members of the profession to contact my office if they have any queries by emailing sasbc@sa.gov.au. B

MEMBERS ON THE MOVE ERICA PANAGAKOS (LEFT) WITH FELLOW DIRECTORS BEV CLARK & CHARLIE BELPERIO

B

elperio Clark are proud and delighted to announce that Erica Panagakos has joined Bev Clark and Charlie Belperio as a Director of the firm.

This promotion is in recognition of the outstanding qualities Erica brings to the

firm, her commitment to excellence as a professional, and her exemplary attitude to client service. Belperio Clark is in its 27th year, and the addition of Erica to the directorship heralds a new chapter which the firm is very excited to embark upon.

ALYSIA PANAGAKOS

In addition, in recognition and appreciation of her dedication and professionalism, the firm is pleased to also announce the promotion of Alysia Panagakos to the position of Associate.

July 2020 THE BULLETIN

41

WELLBEING & RESILIENCE

When good anxiety turns bad…

WELLBEING & RESILIENCE COMMITTEE

S

tress and anxiety are a common response to situations where we feel under pressure and to which the commonly-coined term ‘fight or flight’ is often associated. It is an acute physiological response to a hormone release which can cause a spike in performance and new-found resilience in the context of a perceived threat. This level of performance can occur in court or in the midst of negotiations, a time you thought you would be overcome with anxiety but instead are overcome with confidence and ability to deal with the immediate need in front of you. Sometimes you might lead yourself to thinking that your common relationship with anxiety may in fact be beneficial to your performance, practice or firm. But is it??

Beyond Blue (2020) reports that anxiety is the most common mental health condition in Australia. On average, one in four people will experience anxiety at some stage in their life. The legal profession has been recorded in previous years to exceed these averages but there is a need to have these data sets revisited and addressed to understand the full extent of the experiences in our industry. The common symptoms include -: • Physical - panic attacks, hot and cold flushes, racing heart, restlessness • Psychological – excessive fear, worry, catastrophising or obsessive thinking • Behavioural – avoidance of social situations, conflict or connection As can be seen, anxiety ranges in intensity from mild uneasiness to what can be paralysing distress. It can pass in a flash or remain a constant. What causes this anxiety? Numerous scientific studies report of the now common abstract threats in our lifestyles that cause anxiety: health concerns, financial concerns, social status and security.

During COIVD-19 corona-anxiety has become a common phrase to describe the increased base-levels of anxiety that many in society are feeling on a daily basis.

Higher than normal anxiety is warranted during these times and we need to give

42 THE BULLETIN July 2020

ourselves and others both understanding and validation of this unprecedented situation. The ‘what if ’s??’ of COVID-19 including What if I lose my job? What if my client’s business closes down? What if I get sick? What if there is a second wave? Do I want to return to the office environment? What if I catch something on public transport? are all questions which can breed anxiety, fuelled by uncertainty you cannot control.

Identifying your sources of stress is a valuable self-assessment tool in your well-being checklist. A recommendation is to commit to a stress diary (or an ongoing stress note in your phone). As you experience uncomfortable stress, record what it was and when it happened.

This acts as a register of themes to your stress and can support you to evaluate solutions available to reduce or even remove the stressors.

How do you know though if your common anxiety has progressed beyond what is common and controllable? The exercise above is a great start as it allows you to be in the moment, acknowledge it and record it. The record then allows you to reflect every few days on the impact of that anxiety and stressor and to understand the impairment on your everyday functioning. Is the anxiety giving you a burst of ‘fight’ response or is it impacting on your work quality, sleep or putting you in a constant

state of worrying over things that may have previously not registered on your worry radar. This can be a slow or fast manifestation but clues to look out for include unmanageable irritability, inability to focus, tunnel vision and a physical restlessness (e.g. pacing, rocking). Others may notice changes in you and comment on your hyper-focused state or conversely that you are very scattered and they have trouble following your train of thought or action items.

Looking back on your diary, what you can do? Refer to note above and be understanding of the situation and validate it, do not dismiss it. Be transparent with the people you trust – your family, friends or medical professionals. Stop saying you are “fine” when you are not. Practice saying “I’m not fine, that is okay as I can get help”.

Suggested Action: • Visit Beyond Blue - www.beyondblue. org.au to learn more about the common symptoms of anxiety and learn about the six types of anxiety disorders • Undertake the Anxiety Checklist (on Beyond Blue website) and visit your GP if you have any concerns with your checklist results • Contact Beyond Blue (ph 1300 22 46 36) or Lifeline (ph 13 11 44) • Access the LawCare Counselling Service (ph 8110 5279)

BOOK REVIEW

Hasluck’s gift for storytelling shines through in memoir BEYOND THE EQUATOR: AN AUSTRALIAN MEMOIR

By Nicholas Hasluck | Arcadia Press | paperback | 282 pages | published November 2019 are typically excellent writers. They Judges would not survive in public office if they could not expertly string a few sentences together in imparting their judicial wisdom.

But they are rarely novelists. Ian Callinan QC, formerly of the High Court, is probably the best-known writer of fiction on the Australia legal scene, but even more prolific is Nick Hasluck QC, who, until his retirement in 2012, was a member of the Western Australian Supreme Court bench. He has thirteen novels to his name, most of which I have read and enjoyed immensely.

His latest work is a memoir of his life

beginning with his sailing to the United Kingdom in 1964 to pursue postgraduate studies at Wadham College, Oxford, and ending with reflections upon his time in judicial office. It is a terrific read, not only for the images of life for ex-pats in the 1960s in London and the Cotswolds, and for the promptings along the way that gave him ideas for his novels and short stories (the ‘flash of recognition’ he calls it), but for the insights revealed to him by a life immersed not only in the law but on the periphery of high political office. Astute readers of this review will know that his father was Sir Paul Hasluck, a federal minister in the Menzies government and later the Governor-General of Australia.

Few will know that Sir Paul began his professional life as a journalist for The West Australian, and later a war historian. Nick’s mother, Alexandra (or ‘Alix’), was also

a writer, the author of biographies and Western Australian history. So it comes as no surprise that one of their progeny would have picked up a love of words and storytelling.

The key themes that emerge for me from the pages of Beyond the Equator are, firstly, that we must take our opportunities when they arise and let serendipity take us where it will. That’s not always easy for anyone who likes to be totally in control at all times which, in my experience, typifies most of the advocates I know. Secondly, those who feel the creative processes murmuring might want to try their hand at writing. As Nick concludes, literature invariably lights the path to a better understanding of our legal journeys.

Review by Rick Sarre, Adjunct Professor of Law and Criminal Justice at the University of South Australia. B

BOOKSHELF RECTIFICATION OF DOCUMENTS

J Tarrant The Federation Press 2020 HB $140.00

Abstract from Federation Press This book comprehensively analyses the equitable doctrine of rectification with its main focus on rectification of contractual documents. It seeks to clarify and classify all aspects of the doctrine, by closely engaging

with the leading modern cases, and seeking to place them in the context of fundamental principle - including where they depart from principle. It is a major contribution to the field, and will be useful to scholars, judges and practitioners.

THE LAW AFFECTING VALUATION OF LAND IN AUSTRALIA

A Hyam 6th ed The Federation Press 2020 HB $180.00

Abstract from Federation Press A standard reference for lawyers involved in valuation cases, the book is widely cited by courts and tribunals throughout Australia, particularly the High Court, the NSW Court of Appeal and Land and Environment Court, and Queensland’s Land Court and Land Appeal Court.

Since the publication of the fifth edition the legal and valuation principles of the valuation of land in Australia have been expanded, amplified and explained in many decisions

and amendments which have been included in the sixth edition. The sixth edition includes summaries and extracts from cases and statutes current to 30 June, 2019. Many topics have been expanded whilst new topics have been added.

The new edition provides an understanding of the subject by lawyers who practice in this area of the law, and valuers and other professionals who are engaged in the property industry. It is of particular relevance to valuers and other professionals who give valuation evidence before the courts and tribunals.

July 2020 THE BULLETIN

43

GAZING IN THE GAZETTE

3 MAY â&#x20AC;&#x201C; 2 JUNE 2020 ACTS PROCLAIMED Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Act 2019 (No 49 of 2019) Commencement ss 4-6; 8-14; 16-19: 1 July 2020 Commencement remaining provisions: 21 May 2020 Gazetted: 21 May 2020, Gazette No. 42 of 2020

ACTS ASSENTED TO Fire and Emergency Services (Miscellaneous) Amendment Act 2020, No. 8 of 2020 Gazetted: 7 May 2020, Gazette No. 36 of 2020

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

Modified Crops Management Regulations (Postponement of Expiry) Act 2017 and revoke Genetically Modified Crops Management Regulations 2008) Gazetted: 15 May 2020, Gazette No. 40 of 2020 COVID-19 Emergency Response (Further Measures) Amendment Act 2020, No. 14 of 2020 (amends COVID-19 Emergency Response Act 2020, Development Act 1993 and Training and Skills Development Act 2008 Gazetted: 15 May 2020, Gazette No. 40 of 2020

RULES

COVID-19 Emergency Response (Bail) Amendment Act 2020, No. 9 of 2020 Gazetted: 7 May 2020, Gazette No. 36 of 2020

Corporations Rules 2003 Amendment No 10 Gazetted: 14 May 2020, Gazette No. 39 of 2020

Summary Offences (Trespass on Primary Production Premises) Amendment Act 2020, No. 10 of 2020 Gazetted: 7 May 2020, Gazette No. 36 of 2020

District Court Criminal Supplementary Rules 2014 Amendment No 7 Gazetted: 14 May 2020, Gazette No. 39 of 2020

The Wyatt Benevolent Institution Incorporated (Objects) Amendment Act 2020, No. 11 of 2020 Gazetted: 7 May 2020, Gazette No. 36 of 2020

District Court Special Applications Rules 2014 Amendment No 2 Gazetted: 14 May 2020, Gazette No. 39 of 2020

South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2020, No. 12 of 2020 (amends South Australian Public Health Act 2011) Gazetted: 7 May 2020, Gazette No. 36 of 2020

Environment, Resources and Development Court (Native Title) Rules 2001 Amendment No 1 Gazetted: 14 May 2020, Gazette No. 39 of 2020

Genetically Modified Crops Management (Designated Area) Amendment Act 2020, No. 13 of 2020 (amends Genetically Modified Crops Management Act 2004, repeals Genetically

Environment, Resources and Development Court Rules 2003 Amendment No 2 Gazetted: 14 May 2020, Gazette No. 39 of 2020

44 THE BULLETIN July 2020

Land and Valuation Division Rules 2014 Amendment No 2 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Supreme Court Criminal Rules 2014 Amendment No 8 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Supreme Court Criminal Supplementary Rules 2014 Amendment No 7 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Supreme Court Special Applications Rules 2014 Amendment No 3 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Uniform Civil Rules 2020 Approval by Judges Gazetted: 14 May 2020, Gazette No. 39 of 2020 Youth Court (General) Rules 2016 Amendment No 1 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Youth Court (Adoption) Rules 2018 Amendment No 1 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Youth Court (Care and Protection) Rules 2018 Amendment No 1 Gazetted: 14 May 2020, Gazette No. 39 of 2020 Uniform Civil Rules 2020 Full text Gazetted: 18 May 2020, Gazette No. 41 of 2020

GAZING IN THE GAZETTE

REGULATIONS PROMULGATED (3 MAY 2020 â&#x20AC;&#x201C; 2 JUNE 2020) REGULATION NAME

REGULATION NO. DATE GAZETTED

Harbors and Navigation (Fees) Variation Regulations 2020

52 of 2020

7 May 2020, Gazette No. 36 of 2020

Motor Vehicles (Fees) Variation Regulations 2020 Motor Vehicles (Reduced Registration Fees Prescribed Amounts) Variation Regulations 2020 National Parks and Wildlife (Fees) Regulations 2020

53 of 2020

7 May 2020, Gazette No. 36 of 2020

54 of 2020

7 May 2020, Gazette No. 36 of 2020

55 of 2020

7 May 2020, Gazette No. 36 of 2020

Heritage Places Regulations 2020

56 of 2020

7 May 2020, Gazette No. 36 of 2020

Retail and Commercial Leases (Miscellaneous) Variation Regulations 2020

57 of 2020

14 May 2020, Gazette No. 38 of 2020

Legal Practitioners (Fee Notices) Variation Regulations 2020

58 of 2020

14 May 2020, Gazette No. 38 of 2020

Taxation Administration (Information Disclosure) Variation Regulations 2020

59 of 2020

14 May 2020, Gazette No. 38 of 2020

COVID-19 Emergency Response (Commercial Leases No 2) Regulations 2020 Primary Produce (Food Safety Schemes) (Meat Food Safety Advisory Committee) Revocation Regulations 2020 COVID-19 Emergency Response (Section 14) Regulations 2020 Southern State Superannuation (Inactive Low Balance and Lost Member Accounts) Variation Regulations 2020 Superannuation (Prescribed Authority) Variation Regulations 2020

60 of 2020

15 May 2020, Gazette No. 40 of 2020

61 of 2020

21 May 2020, Gazette No. 42 of 2020

62 of 2020

21 May 2020, Gazette No. 42 of 2020

63 of 2020

21 May 2020, Gazette No. 42 of 2020

64 of 2020

21 May 2020, Gazette No. 42 of 2020

Legal Practitioners (Foreign Lawyers) Variation Regulations 2020

65 of 2020

21 May 2020, Gazette No. 42 of 2020

Summary Offences (Variation of Schedule 2) Regulations 2020 Fisheries Management (Rock Lobster Fisheries) (Quota) Variation Regulations 2020 Fisheries Management (General) (Section 70-Prescribed Fishing Activities) Variation Regulations 2020 Fisheries Management (Demerit Points) (Rock Lobster) Variation Regulations 2020

66 of 2020

21 May 2020, Gazette No. 42 of 2020

67 of 2020

21 May 2020, Gazette No. 42 of 2020

68 of 2020

21 May 2020, Gazette No. 42 of 2020

69 of 2020

21 May 2020, Gazette No. 42 of 2020

COVID-19 Emergency Response (Section 14) (No 1) Variation Regulations 2020

70 of 2020

21 May 2020, Gazette No. 42 of 2020

Liquor Licensing (General) (Miscellaneous) Variation Regulations 2020

71 of 2020

21 May 2020, Gazette No. 42 of 2020

Children and Young People (Safety) Variation Regulations 2020

72 of 2020

21 May 2020, Gazette No. 42 of 2020

Child Safety (Prohibited Persons) Variation Regulations 2020

73 of 2020

21 May 2020, Gazette No. 42 of 2020

Youth Justice Administration Variation Regulations 2020

74 of 2020

21 May 2020, Gazette No. 42 of 2020

Disability Services (Assessment of Relevant History) Variation Regulations 2020

75 of 2020

21 May 2020, Gazette No. 42 of 2020

Summary Offences (Variation of Schedule 2) Regulations 2020 (republished) Superannuation Funds Management Corporation of South Australia (Construction Industry Training Board) Variation Regulations 2020

66 of 2020

21 May 2020, Gazette No. 43 of 2020

76 of 2020

28 May 2020, Gazette No. 45 of 2020

DISALLOWANCE OF REGULATIONS Genetically Modified Crops Management Act 2004, No. 22 of 2020 From 8 April 2020 Gazetted: 7 May 2020, Gazette No. 36 of 2020 July 2020 THE BULLETIN

45

FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK CHILDREN – CONTRAVENTION – COVID-19 – REASONABLE EXCUSE – VARIATION OF PRIMARY ORDER

PROCEDURE – LITIGATION FUNDING SOUGHT BY HUSBAND FROM WIFE AND HER MOTHER

n Kardos & Harmon [2020] FamCA 328 (7 May, 2020) McClelland DCJ heard an application by a father alleging the mother’s contravention of a parenting order which provided for their three year old child to travel from Adelaide to spend time with the father in Darwin and, from January, 2020, Brisbane.

The mother did not send the child to the father in March or April, 2020 due to her concerns about the COVID-19 pandemic. The mother argued reasonable excuse due to her concern for the child’s health and the border restrictions requiring her and the child to be in self-isolation for 14 days after their return to South Australia.

Having taken judicial notice ([33]) of publications about COVID-19, McClelland DCJ said ([76]): “Having regard to that … information, I am satisfied that the mother believes ‘on reasonable grounds’ that not allowing the child to spend time with the father … was necessary to protect the health of the child and the mother. This is because the mother would not have been able to maintain safe social distancing during the period of the aircraft travel and there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel. … ” The Court added [81] that “had it been necessary to determine [the selfisolation] issue I would have determined it in favour of the mother”. After citing a Canadian case where it was held that “[t]he parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols”, the Court said ([117]): “ …[D]espite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

In Edson & Whitney and Anor [2020] FamCA 184 (25 March, 2020) Rees J dismissed an application by a husband in a property case for litigation funding from the second respondent (the wife’s mother); the wife (by lump sum paid by her obtaining a mortgage over her real property, her mother to waive her security over that property); and the wife as a “dollar for dollar order”. The wife’s case was that she owed her mother $3,616,000 and $350,000, which amounts exceeded the value of the marital assets and were secured over the wife’s property and owed her brother $111,000 for legal fees.

After citing ([27]) Knight v FP Special Assets Ltd [1992] HCA 28 as to the court’s power to order interim costs against a nonparty, Rees J referred to the Full Court’s statement in McAlpin [1993] FamCA 71: ‘We do not think that we should conclude our discussion of the matter, however, without saying that we think that the approach taken by his Honour in this case, is one that should be taken with great caution. It is one thing for a family or organisation to stand behind a party in proceedings under the Family Law Act, either by paying their costs or supporting them in the course of the litigation, but it is quite another matter, in most cases, to make orders against an impecunious party in the expectation that such other person or persons will discharge the orders on their behalf.’”

The Court concluded (from [37]): “[T]here is no possibility that, if the second respondent were required to waive her security to allow the wife to borrow $180,000, thus diminishing the security for her asserted loan, and if the husband’s challenge is not successful, the second respondent can ever be compensated by the husband for her loss. ( … ) [39] It would not be just and equitable to interfere with the security where the beneficiary of the security could not be compensated for any loss occasioned.”

I

46 THE BULLETIN July 2020

PROCEDURE – WITHDRAWAL OF CONSENT TO ARBITRATION DUE TO ALLEGED FAMILY VIOLENCE In Palgrove [2020] FCCA 846 (27

March, 2020) a financial case was referred in 2019 to arbitration by consent pursuant to s 13E of the Family Law Act. Before the court was the wife’s application for the discharge of that referral due to her inability to be in the same place as the husband after being subjected to serious violence by him.

Judge Harman said (from [30]): “ … [T]he parties are relatively agreed in their position that the referral to arbitration should be discharged and the parties instead referred to a conciliation conference …

[31] I do not intend to take that path, even though both parties consent.

[32] As discussed in Loomis & Pattison [2020] FCCA 345 … the Court should be loath to interfere in the arbitration process, other than its facilitation and support once it is ordered. …

[33] The outcome the parties desire to achieve can be achieved through the prescriptive order I have referred to [for arbitration by video]. ( … ) [35] Whilst consent is purported to be withdrawn, I am not satisfied that I should simply accept that position and return the matter to the Court’s jurisdiction. There are a number of reasons for that. Firstly, the arbitrator is clearly seized of the matter. The arbitration has commenced. …

[36] It would be more cost effective for the arbitration to proceed … by video, subject to the dispute remaining arbitrable [discussed at [15]] and both parties being sufficiently supported in the process to feel safe.

[37] Secondly, the delay that these parties will face, if the matter returns before the Court, is extreme. At present and as a consequence not only of response to the pandemic, but as a consequence of an underlying chronic absence of resourcing, this case could not and would not be heard until 2021 at the earliest, if even then. That disadvantage to the parties, when it can be cured through a prescriptive order as to how the arbitral process should proceed and thus that disadvantage avoided, should play some significant role in determining the issue.”

The Court dismissed the wife’s application for dismissal of the referral and made prescriptive orders for the conduct of the arbitration by video. B

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

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

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

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

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

CONSULTING ACTUARIES

LawCare

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

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

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

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

All information divulged to the LawCare counsellor is totally confidential.

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

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