The Bulletin - Law Society of South Australia - July 2021

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 6 – JULY 2021

IN THIS ISSUE

Aged Care Royal Commission Power of Attorney reforms Enhancing disability rights A plea from the Aboriginal Children's Commissioner

WHO CARES? THE ROLE OF THE LAW IN SUPPORTING PEOPLE WHO NEED CARE

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (6) LSB(SA). ISSN 1038-6777

CONTENTS PEOPLE IN CARE 9 New Avenues of Providing Effective Care: the Role of Microboards

By Dr David Plater, Lukas Price, Esther Richards & Dr Mark Giancaspro 12 The Aboriginal Youth Sentencing Court: A pathway to support

By Julia Grigonis-Gore 14 Royal Commission into Aged Care: Time for a paradigm shift to protect the human rights of older Australians

By Dr Sarah Moulds 18 Why disability laws and policies should encourage community participation, not closed environments – By Natalie Wade 20 Protecting loved ones within estate planning – By Nour Harb 22 SALRI’s examination of enduring powers of attorney: Charter for abuse or necessary aspect of daily life?

By Dr David Plater, Dr Gabrielle Golding, & Dr Sylvia Villios Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:

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

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

26 Reforms to improve outcomes for Aboriginal youth need to be driven by self-determination – By Commissioner April Lawrie 29 Opinion: The State of Play – Aboriginal Youth in South Australia today – By Jonathon Brohier

FEATURES & NEWS 7 Letter to the editor: Response to article “The role of climate change policy under the Planning, Development and Infrastructure Act”

By The Hon Vicki Chapman MP 30 Re-thinking the traditional time-billing model of firms – By Sarah Behenna 34 Oral histories profile: Christopher Legoe AO QC – By Lindy McNamara

REGULAR COLUMNS 4 From the Editor 5 President’s Message 33 Wellbeing & Resilience: Dealing with vicarious trauma – By Sarah El Sayed 36 Risk Watch: Practitioners acting as Attorneys and substitute decision makers – professional indemnity issues – By Grant Feary 38 Tax Files: Allocation of professional firm profits: Joint professional bodies have say on draft practical compliance guideline 40 Gazing in the Gazette 41 Family Law Case Notes

By Craig Nicol & Keleigh Robinson

37 Guidance on reimbursements for disbursements – By the Law Society’s Ethics & Practice Unit

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 Acting Director (Law Claims) Grant Feary gfeary@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

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

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

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FROM THE EDITOR

Investing in mental health has many flow-on benefits MICHAEL ESPOSITO, EDITOR

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very year for the past few years, I have attended the yearly State Budget lock-in, joining a hundred or so other delegates of representative organisations.

Every attendee scours the budget paper looking for what is in the budget for their sector. Typically, representative bodies form the view that the budget did not provide enough funding for the industry they represent. This is completely understandable of course, as these bodies exist to advocate on behalf of their constituents, but it does highlight the very delicate balancing act the Treasurer must perform when preparing the annual budget, not only having to consider the needs and wants of various sectors, but having to juggle financial and political considerations.

This year’s budget, which was handed down on 22 June, included a number of measures to support and care for some of the State’s most vulnerable people. Whether the budget did enough to support vulnerable people has been hotly debated, but it is important that the funding that has been allocated to vital community services is put to good effect through sound, evidenced based policy

and if necessary, underpinned by welldrafted legislation.

One of the biggest announcements has been the $163.5 million mental health package, which includes the construction of a new 16-bed crisis stabilisation centre in the northern suburbs, and eight additional psychiatric intensive care beds.

Treasurer Rob Lucas said one of the key objectives of the mental health facilities was to divert people with acute mental health issues away from emergency departments, which are clearly not the ideal environments to treat mental health crises, and into dedicated facilitates that provide the mental health support that people need.

While there have been some outspoken critics of the mental health funding, mainly on the basis that it doesn’t go far enough, it is at least encouraging that the Government has recognised the need for greater mental health resources in SA. The Society has been on its own mission to enhance mental health resources for the profession. The preliminary results from the Society’s recent mental health survey, as outlined

by President Rebecca Sandford in her President’s Message on the following page, shows there are significant mental health challenges facing the legal profession.

But there are numerous strategies that can significantly improve mental health.

Having recently spoken to Gabrielle Kelly, founder of SAHMRI’s Wellbeing and Resilience centre, for an article that will be published in next month’s Bulletin, I was won over by her passionate insistence that mental health is something we should all continue to work on, the same way one might practice physical fitness. Practicing mental fitness is just as important, training ourselves to more effectively deal with the setbacks and stressors of life will make us calmer, more focussed and more productive individuals.

Another big takeaway from my chat with Gabrielle was the importance of managers investing in their staff ’s mental health. Aside from the inherently worthy objective of supporting staff to be as mentally healthy as possible, which one would hope most managers want for their workforce, there is also a compelling productivity argument for prioritising mental health. B

Amy Nikolovski appointed new Managing Partner of DBH Lawyers

F

ormer Law Society President Amy Nikolovski has been appointed Managing Partner of DBH. The appointment makes Amy the youngest and only female leading a large law firm in South Australia.

“I feel both honoured and humbled to be appointed Managing Partner of DBH,” Amy said.

At DBH, Amy practices in the areas of workers compensation, motor vehicle accident, public liability and general personal injury law.

4 THE BULLETIN July 2021

Outgoing Managing Partner, Matt DeGregorio, said that Amy was the obvious choice to succeed him as Managing Partner.

“Aside from being recognised as a leading lawyer across her areas of expertise in South Australia and nationally, Amy’s passion, drive and commitment to supporting women in the legal profession is well recognised,” said Matt.

“I have no doubt that over the next few years she will continue to

provide outstanding leadership for the firm, and in true Amy spirit, continue to break down barriers and act as a fantastic role model for the next generation of lawyers.”

Amy is the immediate Past Chair of the Society’s Equality, Diversity and Inclusion Committee and served as the South Australian representative on the Law Council of Australia’s Equal Opportunity Committee between 2018 and 2021. She served as President of the Law Society in 2019. B

PRESIDENT’S MESSAGE

Shining a light on mental health in the profession REBECCA SANDFORD, PRESIDENT

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arlier this year, the Society surveyed practitioners in SA about their mental health and wellbeing. The survey was based on one run globally by the International Bar Association, and intended to help assess how we as legal practitioners are managing and maintaining our mental health, and what we can do (individually and collectively) to better support our mental wellbeing.

The results are now in, and whilst more detailed analysis of the local and global survey outcomes will follow in due course, for now I wanted to share a few key findings with you (with many thanks to Zoe Lewis, Chair of the Society’s Wellbeing and Resilience Committee, for her assistance).

It was startling, though not altogether surprising, to see that 47% of respondents advised that working in the legal profession negatively impacted their wellbeing, and almost 60% admitted to considering leaving the profession in the last two years because of mental health issues related to workload or work pressures. Key wellbeing threats include workload pressures, billing stress and profit-centric workplace cultures, bullying and harassment concerns, vicarious trauma (especially for those working in family, criminal and personal injury), perfectionism, compliance and regulatory stress, isolation, and difficulties switching off or sleeping - with over 70% of respondents reporting fatigue or disrupted sleep. The survey confirms how important wellbeing and resilience measures are for the health of the profession.

It’s apparent that lawyers in SA unfortunately still feel strong stigma around admitting to struggling with mental health (reflective of the global survey responses, with 41% feeling they can’t discuss wellbeing issues with their employers), but I was reassured to see that 80% of respondents in SA believe our culture has become more open, even significantly more open, to discussing mental wellbeing over the last three years. Similarly, many positive aspects of working in the law were identified, including the rewarding nature of the work and the intellectual challenge, meaning, and purpose it can provide.

I’ve also become aware of some scary statistics through partnering with Breakthrough Mental Health Research Foundation as the President’s Charity this year, including that one in five Australians has a mental health issue, and more people between 15-44 years are currently dying from suicide than any other cause. Given lawyers can be predisposed to some of these concerns, not to mention the potential impacts of the events of the last 12 months (with significant ongoing business and personal uncertainty from the pandemic and attention on sexual harassment matters likely to have affected many of us to varying degrees), how we look after ourselves and each other remains a key focus for me, and is part of why I asked Gabrielle Kelly to be our guest speaker for this year’s upcoming Legal Profession Dinner.1 Though managing mental health and wellbeing is ultimately an individual journey, please remember that support and guidance is available - I encourage all practitioners to seek assistance (including from your GP or psychologist) as required, without guilt or shame for doing so. Given 25% of our survey respondents said they were not aware of available support services, I also want to remind Members about some Law Society services, which include: • LawCare (08 8110 5279) - legal practitioners or members of their immediate family, or law students, can anonymously arrange a session with Dr Jill to discuss any issues that are interfering or may interfere with work performance, including social and/or psychological problems, stress related to work or domestic situations, alcohol or drug dependency concerns, gambling issues, matrimonial or relationship problems, family crisis or career concerns. The Society makes a financial contribution to gap payments (for two sessions per practitioner per year), but is not provided with participant names or details.

• Professional Advice Service - a volunteer panel of experienced lawyers (list here) willing to assist colleagues with

personal and professional problems, including professional standards/ conduct issues, legal practice/business advice, costs matters, or relationship with the Courts.

• Young Lawyers’ Support Group - the Society, in conjunction with its Young Lawyers Committee, has established a group of practitioners to assist young lawyers who may feel the need for independent guidance from experienced colleagues. The list of practitioners who can be contacted directly by young lawyers is here.

• Complaint Companion Service - up to an hour of free advice is available for solicitors who are the subject of a complaint to the Legal Profession Conduct Commissioner.

For confidential enquiries about LawCare, or further information about any of the other services listed above, contact Annie MacRae at (08) 8229 0263 / annie. macrae@lawsocietysa.asn.au.

Many of our Members operate in small or sole practice firms, which can exacerbate some of the difficulties and stresses of practice. Though not specifically directed to lawyers, the National Mental Health Commission’s evidence-based guidance for creating Mentally Healthy Workplaces during COVID-19, directed towards sole practice or small business (there is one for large/medium businesses as well), can be downloaded here.

Similarly, Beyond Blue has developed the ‘Heads Up’ program to build better mental health in Australian workplaces, including a useful how-to guide for organisations to develop a workplace mental health strategy.

Other resources are also available via the Law Society’s Wellbeing & Support webpage.

I’m always open to discussing what can be done to better support our friends and colleagues in undertaking the important work we do. Please don’t hesitate to contact me with ideas or thoughts you have in this respect. B Endnotes 1 Registration now open, tickets available here.

July 2021 THE BULLETIN

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LETTER TO THE EDITOR

Letter to the editor: Response to article “The role of climate change policy under the Planning, Development and Infrastructure Act” THE HON VICKI CHAPMAN MP, ATTORNEY GENERAL; MINISTER FOR PLANNING & LOCAL GOVERNMENT

Dear Editor, read with interest the article by Paul Leadbeter, David Cole and Michael Doherty in your May Edition. Principally, it detailed the interaction between the Planning Development and Infrastructure Act 2016 and climate change.

For those who have not followed the planning reform process, it has a rather long history. This began with the report of the Expert Panel on Planning Reform in 2014 and the introduction of the Planning, Development and Infrastructure Bill in 2015. Since its passing in 2016 and across two governments there has been the establishment of the State Planning Commission, the development of State Planning Policies and Community Engagement Charter, the recently implemented Planning and Design Code (the Code) and the online e-Planning assessment portal.

In delivering these reforms a great number of interests have had to be balanced, with climate change mitigation and adaptation being a primary consideration.

I do not subscribe to the theory presented by the authors that measures introduced to combat climate change are best discovered through a specific keyword search of the legislation. Instead, I recommend the State Planning Policies and their impact on the design of the Code present the best mechanism to shape the built environment for climate resilience.

These Policies are designed to address the economic, environmental and social planning priorities for South Australia, and together establish the necessary framework to guide future development in this State.

State Planning Policy 5 (SPP 5) specifically addresses climate change. It outlines how planning plays an important

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6 THE BULLETIN July 2021

role in reducing our emissions through promoting active travel and walkability, increasing the use of public transport, ensuring energy-efficient building design, encouraging water-sensitive urban design and enabling green technologies and industries.

Other policies give consideration to climate issues; including Design Quality (SPP 2), Adaptive Reuse (SPP 3), Biodiversity (SPP 4), Key Resources (SPP 10), Energy (SPP 12), Coastal Environment (SPP 13), Water Security and Quality (SPP 14), Natural Hazards (SPP 15) and Emissions and Hazardous Activities (SPP 16).

In addition, the Code contains a suite of policies that help mitigate climate change, including a nation-leading set of residential infill policies. Given the reliance on the Code for the assessment of almost all development in the state, the application of the Code will have the most impact in ensuring climatefocused outcomes are considered in new development submissions.

Why does the Code address climate change impacts? Quite simply to reduce our carbon emissions and encourage new sources of power generation such as solar, battery and hydro.

• At a State level, we have approved 71 renewable energy developments, totalling $16.6 billion in investment in solar, wind, hydro and battery storage.

• At a residential level, Code policies have been introduced which will increase liveability and address climate issues at a street level through: • Promoting walkable neighbourhoods by encouraging more mixed-use development within suburban areas, and a continued strong focus on urban infill development • Introducing improved urban infill

policies to encourage additional soft landscaping, the planting and protection of trees and management and reuse of stormwater.

• In greenfield and growth areas, the Code has a strong focus on delivering water sensitive urban design, cycling and walking infrastructure and tree canopy at a broader neighbourhood or precinct scale.

Outside of the Code, there are a number of climate change initiatives underway which include the preparation of new Regional Plans, as well as mapping studies for bushfire and flood hazards.

The Government has launched the Climate Action Plan 2021 – 25, with the Planning and Land Use Services division of the Attorney-General’s Department being the lead agency for six actions. These include: • Plan for the development of walkable neighbourhoods that reduce the need for car journeys.

• Climate smart planning, building and design policies.

• Embedding strategic climate impact assessment in regional plans.

• Supporting development of stronger climate smart standards via the National Construction Code.

• Promoting opportunities to the private and public sector to go ‘beyond compliance’ in relation to climate smart design.

• Development of improved policies, tools and guidance materials for the planning system that achieve greener and cooler neighbourhoods.

While it is admirable that Mr Leadbeter and others are taking a strong interest in the Government’s response to climate change, it is unfair to suggest that climate mitigation and adaptation policies do not feature as a priority for the Government or the State Planning Commission. B

AUGUST

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FEATURE

‘New Avenues of Providing Effective Care: the Role of Microboards’ DR DAVID PLATER, LUKAS PRICE, ESTHER RICHARDS AND DR MARK GIANCASPRO1

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n January, 2021, the independent South Australian Law Reform Institute (SALRI), based at the University of Adelaide Law School, released its Report into the role and operation of Enduring Powers of Attorney (EPAs) under the Powers of Attorney and Agency Act 1984 (SA) (POA Act) in South Australia.2 SALRI’s report also examined the role of ‘microboards’ in providing flexible and effective long-term care to persons with disability, and raised some of the legal issues and implications that exist under present law and practice.3 Significantly, the concept of microboards was not raised by SALRI in its consultation, but rather by members of the community, health and disability sectors. The concept was raised in relation to dissatisfaction with existing options – such as powers of attorney (POAs), guardianship and administration orders and the Public Trustee. The extensive reliance upon perceived unregulated commercial care and the role of Government care was also of concern.

It was suggested that, drawing on recent developments in Canada4 and Western Australia, SALRI should look further at the role and operation of microboards to determine their feasibility as a viable alternative to existing support strategies.

A microboard is a relatively new concept in Australia. It involves a small group of interested individuals who gather around a person with special needs (whether elderly and/or with a disability) to support them throughout their lives.5 Generally, these groups take the form of an incorporated legal entity and can serve as a vehicle for supported decisionmaking in a number of areas, including financial management,6 health care, treatment, safeguarding and governance.

In its operation, a microboard seeks to represent best practice in disability support by moving away from the concept of substitute decision-making – where a person or persons are appointed to make decisions for someone else.

Substitute decision-making can impact a person’s sense of autonomy, self-worth

and wellbeing.7 Microboards have the advantage of exercising decisions relating to a range of personal issues, which allows the model a certain degree of flexibility.

A microboard could theoretically exercise a similar authority to that utilised under POAs, Advance Care Directives or guardianship orders, and has the potential to render these otiose. The membership of a microboard may change over time and members may be selected according to their familial, personal, or professional connections or expertise.

SALRI was told that microboards appear to offer an encouraging alternative to existing substitute decision-making mechanisms, and this relatively new approach has the potential to act as a longterm and sustainable safeguard in the lives of vulnerable people. However, significant questions remain as to the role and effect of present law and practice to accommodate and best provide for microboards. The intersection of the role and operation of a microboard with the National Disability Insurance Scheme (NDIS) in Australia8 remains unclear.9 SALRI noted that, while the ability of microboards to provide for the long-term care of persons with disability has apparent merit, further discussion was beyond the scope of its EPA reference. SALRI recommended undertaking a future reference in close consultation with interested parties to examine the role, operation, and implications of microboards.10

CONTEXT The effective care of persons with disability or cognitive impairment and the prevention of abuse are the subject of extensive scrutiny and concern.11 There are various issues and perceived omissions in the provision of long-term care or support to an individual with disability through some of the usual means, such as a POA, guardianship or administration orders, residential care facility, commercial care or the Public Trustee. These concerns are compounded by the profound change in practice from substitute to

supported decision-making models and the shift to tailored care in the community (as demonstrated by the NDIS). The suggestion of a microboard as a new flexible model to provide effective tailored care with a focus on supported decisionmaking has emerged.

The absence of relationships and support networks outside of a paid individual(s) was raised in SALRI’s EPA consultation as a source of community concern.12 The presence of non-family relationships is seen as an essential safeguard, particularly when parents are no longer around or able to take an active role in providing care. A microboard seeks to formalise relationships into a legal structure with accountability mechanisms, ensuring that safeguards exist beyond the lifespan of the primary carers.

Law and social reform in the area of disability since the 1970s has emphasised the shift from a medical model of disability to a social model of disability.13 An increased level of priority has been given to deinstitutionalisation, self-autonomy and the right of individuals to enjoy a suitable quality of life.14 The United Nations Convention on the Rights of People with Disabilities15 emphasises that these are human rights, and calls for the equal representation of people with disabilities within the law.16 This has led to an increased questioning of traditional ‘paternalistic’ substitute decision-making models (where a person, body or Government makes decisions for a person with a disability) and increasingly a shift to the concept of supported decision-making.17 Supported decision-making seeks to support people with impaired decision-making functions to make and implement informed decisions.18 In many ways, this accords with much of the ‘normal’ decision-making process, with consultation and input from family, friends and relevant professionals.19 Supported decision-making takes various practical forms, including making information accessible, giving advice about different pathways, taking steps to recognise the person’s actual preferences, and assisting July 2021 THE BULLETIN

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FEATURE

the person in communicating their wishes to others.20 It involves the principal’s permission and engagement in the process, allowing them to retain autonomy whilst being provided with resources to make a decision. This can apply to financial, medical and/or personal decisions.21 There is substantial research on the broader benefits of supported decisionmaking in improving the quality of life for people with a disability.22 The introduction of the NDIS reinforces this focus on supported decision-making as the scheme is an individualised program focusing on tailored support based on the needs and views of the person.

Microboards can facilitate supported decision-making as they seek to place a supportive network around the person with impaired decision-making capacity to assist their realisation of ‘dreams, hopes and visions’ and to clarify their needs.23 Microboards are based on a committed relationship with the subject person and promote a consultative and collaborative approach. One benefit of these boards is the flexibility to tailor the focus and direction for the needs of the principal.

The model of an incorporated microboard was used originally in Canada24 and is now being adopted in Western Australia. The first large-scale microboard development and implementation took place in British Columbia, and as of 2015 the province had over 900 microboards in operation, including all but one of the original pilot boards established in the early 1990s.25 There are a number of microboards presently established, or being established in Western Australia.

There are also current efforts to establish a microboard in South Australia – however there are still unresolved legal issues and implications in that regard.

There are a number of benefits to a microboard which can be obtained through the incorporation process, as opposed to relying on informal arrangements. The

10 THE BULLETIN July 2021

key element is that an incorporated body, with its own perpetual legal personality, is a strong force in keeping members attached and connected to the subject person. This provides an additional level of legitimacy and a binding legal force behind the desired relationships. Members are also held accountable through meetings, and in many cases must replace themselves - further improving the prospects of longevity.

An incorporated body provides a structural framework for microboard members, allowing for a separation of personal liability. There are also safeguards in relation to conflicts of interest, fraudulent behaviour, personal enrichment and oppressive behaviour. A microboard’s independent legal personality allows it to transact, enter into contracts, employ people or hold property – with such issues becoming increasingly pertinent in the absence of primary caregivers or guardians.

The incorporated structure, whilst not always perfect in implementation, provides a reliable, sustainable and enforceable method of disability care and support. Mandatory requirements under incorporation legislation for external financial auditing and reporting are also safeguards which informal care networks lack.

A microboard in South Australia could take the form of an association incorporated under the Associations Incorporation Act 1985 (SA) (Incorporation Act). SALRI raised that, although the Incorporation Act can be potentially used for microboards, it is not an ideal vehicle.

The Incorporation Act was not designed with disability support in mind but was rather introduced with a strong emphasis on accountability in associations26 (such as sport or social clubs).27 If incorporated under the Incorporation Act, microboards are not afforded any special legal recognition beyond that ordinarily given to any incorporated association. As a microboard deals with the livelihood of a vulnerable member of society, questions arise about

the need for an adequate definition to differentiate it from an ordinary association.

SALRI understands that at least one microboard is presently seeking to navigate the incorporation process in South Australia and a test case is before the South Australian Civil and Administrative Appeals Tribunal (SACAT) as to whether the Incorporation Act allows for the incorporation of a microboard in South Australia.

Irrespective of the status of incorporation or the result of the case before SACAT, it is unclear if the Incorporation Act is the best vehicle to support, facilitate and regulate microboards in the long term. At present, much regulation would have to be done by the microboards themselves through the use of rules or constitutions, with no minimum standards being mandated. When combined with limited regulation on eligibility for membership, duties held by members, or safeguards for the person living with a disability, this suggests that reform is needed to ensure microboards can be best utilised by the community. It has been suggested to SALRI that the use of the incorporated association to provide for the role and operation of microboards is akin to ‘trying to put a square peg in a round hole’.

There is a notable lack of empirical evidence as to the long-term effectiveness of microboards, both in Australia and internationally.28 Whilst limited anecdotal evidence suggests that a microboard can serve as an effective long-term safeguard against financial and other abuse and can improve the quality of life for its subject person, there is still a lack of firm research.29 It is also unclear what demand exists within the community and whether there is significant unmet demand a microboard could meet. There does however appear to be strong movement within the disability sector to seek out new best-practice means to support those living with disability. The possible role of a microboard in this regard has also

FEATURE

been recently discussed before the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

The role and operation of microboards is a relatively new area in Australia and is clearly of interest to the community, health and disability sectors. The fact that a microboard can cover health, lifestyle and financial decisions is significant. A microboard is not a universal solution, particularly in circumstances where a person lacks sufficient social capital to establish a network in the first place.

This does not negate the fact that in many situations the concept may offer a promising, sustainable and contemporary approach to disability support.

There is a lack of empirical research in this emerging area and with respect to the issue of whether present law and practice (notably the use of the incorporated association structure under the Incorporation Act) enables the establishment and effective operation of a microboard. It is also unclear whether the Incorporation Act could or should be amended to better cater for microboards or whether a new specific legislative and practical framework may be preferable. This is an emerging area and one that should not be overlooked by either lawyers who practice in this area or for future law reform.

SALRI is anxious to examine in more detail this topical concept. B Endnotes 1 Dr David Plater is the Deputy Director of the South Australian Law Reform Institute. Lukas Price and Esther Richards were students in the 2020 Law Reform class whose research examined the role of microboards. Dr Mark ‘Matt’ Giancaspro is a Lecturer at the Adelaide University Law School and regular contributor to SALRI’s work.

2 Sylvia Villios, David Plater, Gabrielle Golding, Olga Pandos, Bernadette Richards, Anita Brunacci, Natalie Ayoub and Holly Nicholls, Valuable Instrument or the Single Most Abused Legal Document in our Judicial System? A Review of the Role and Operation of Enduring Powers of Attorney in South Australia (South Australian Law Reform Institute, Adelaide, 2020).

3 Ibid 404-411.

4 See Carolyn Lemon and James Lemon ‘Community-Based Cooperative Ventures for Adults with Intellectual Disabilities’ (2003) 47(4) Canadian Geographer 414.

5 Leighton Jay and Michael Schaper, ‘Microboards: What Are They and How Do They Work?’

(2012) 26(4) Training and Management Development Methods 4.01.

6 Not all microboards directly manage a person’s funding, but many do. See Tim Stainton, ‘Supported Decision Making in Canada: Principles, Policy and Practice’ (2016) 3(1) Research and Practice in Intellectual and Developmental Disabilities 1, 8.

7 Michelle Browning, Christine Bigby and Jacinta Douglas, ‘Supported Decision Making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice’ (2014) 1(1) Research and Practice in Intellectual and Development Disabilities 34-45, 38; Matt Jameson, Tim Riesen, Shamby Polychronis, Barbara Trader, Susan Mizner, Jonathan Martinis and Dohn Hoyle, ‘Guardianship and the potential of supported decision making with individuals with disabilities’ (2015) 40(1) Research and Practice for Persons with Severe Disabilities 36-51, 36.

8 The intersection of a microboard with NDIS is complex and unclear, but SALRI understands that funding may be available under NDIS to set up a microboard. See also Christine Bigby et al, ‘Delivering Decision Making Support to People with Cognitive Disability: What has Been Learned from Pilot Programs in Australia from 2010 to 2015’ (2017) 52(3) Australian Journal of Social Issues 222, 224.

9 See also Bloch Holdings Corporation v Ministry of Children, Community and Social Services [2019] ONSC 4227.

10 Sylvia Villios, David Plater, Gabrielle Golding, Olga Pandos, Bernadette Richards, Anita Brunacci, Natalie Ayoub and Holly Nicholls, Valuable Instrument or the Single Most Abused Legal Document in our Judicial System? A Review of the Role and Operation of Enduring Powers of Attorney in South Australia (South Australian Law Reform Institute, Adelaide, 2020) Rec 118.

11 See generally Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Interim Report (Report, October 2020); Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services (Final Report, Parliamentary Paper No 167, May 2016) 12 Isabel Dayman, ‘Ann Marie Smith’s Death Shocked the Public, but it Also Got the Neale Family Making Future Plans’, ABC News (online, 12 July 2020).

13 Shih-Ning Then, et al, ‘Reinforcing Guardianship Regimes Through Assisted Decision-Making: A Scottish Perspective’ (2014) 4 Juridical Review 3.

14 Nandini Devi, ‘Supported Decision-Making and Personal Autonomy for Persons with Intellectual Disabilities: Article 12 of the UN Convention on

the Rights of Persons with Disabilities’ (2014) 41(4) Journal of Law Medicine and Ethics 792.

15 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

16 Ibid arts 1, 12.

17 Genevra Richardson, ‘Mental Disabilities and the Law: From Substitute to Supported DecisionMaking?’ (2012) 65(1) Current Legal Problems 333 18 New South Wales Law Reform Commission, Review of the Guardianship Act 1987 (Report No 145, May 2018) 19–21 [3.25]–[3.32] 19 Terry Carney, ‘Supported Decision-Making in Australia: Meeting the Challenge of Moving from Capacity to Capacity-Building?’ (2017) 35(2) Law in Context 44.

20 See Victorian Law Reform Commission, Guardianship (Report No 24, January 2012).

21 See generally Genevra Richardson, ‘Mental Disabilities and the Law: From Substitute to Supported Decision Making?’ (2012) 65(1) Current Legal Problems 333; Nandini Devi, ‘Supported Decision-Making and Personal Autonomy for Persons with Intellectual Disabilities: Article 12 of the UN Convention on the Rights of Persons with Disabilities’ (2014) 41(4) Journal of Law Medicine and Ethics 792.

22 Shih-Ning Then, et al, ‘Supporting DecisionMaking of Adults with Cognitive Disabilities: The Role of Law Reform Agencies: Recommendations, Rationales and Influence’ (2018) 61 International Journal of Law and Psychiatry 64–75; Terry Carney, ‘Supported DecisionMaking in Australia: Meeting the Challenge of Moving from Capacity to Capacity-Building?’

(2017) 35(2) Law in Context 44.

23 Leighton Jay and Michael Schaper, ‘Microboards: What Are They and How Do They Work?’ (2012) 26(4) Training and Management Development Methods 401-406, 401.

24 See Tim Stainton, ‘Supported Decision-Making in Canada: Principles, Policy and Practice’ (2016) 3(1) Research and Practice in Intellectual and Developmental Disabilities 1 25 See Ibid.

26 South Australia, Parliamentary Debates, House of Assembly, 26 February 1985, 2838–40 (Greg Crafter).

27 This would include say a Morris dancing club (Dr David Plater and Dr Mark ‘Matt’ Giancaspro are devotees of the fine art of Morris dancing).

28 Tim Stainton, ‘Supported Decision-Making in Canada: Principles, Policy and Practice’ (2016) 3(1) Research and Practice in Intellectual and Developmental Disabilities 1.

29 Paul Malette, ‘Lifestyle Quality and PersonCentred Support: Jeff, Janet, Stephanie, and the Microboard Project’, in Steve Holburn and Peter Vietze (eds), Person Centred Planning (Paul Brooks Publishing, 2002).

July 2021 THE BULLETIN

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The Aboriginal Youth Sentencing Court – A Pathway to Support with Community, Access to Services and Diversion to an Alternative Sentencing Program JULIA GRIGONIS-GORE, LEGAL RESEARCH OFFICER (2020-21) – YOUTH COURT OF SOUTH AUSTRALIA

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he Youth Court of South Australia is empowered to determine civil and criminal proceedings in accordance with the Young Offenders Act 1993 (SA) (the YOA).1 The Youth Court is also vested with jurisdiction under the Adoption Act 1988 (SA), Surrogacy Act 2019 (SA) and Children and Young People (Safety) Act 2017 (SA).

Significant legislative change has been proposed in relation to the Youth jurisdiction. Examples include the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 (SA), which proposes to introduce Adoption into the Care and Protection framework, and the Controlled Substances (Youth Treatment Orders) Amendment Act 2019 (SA), which proposes to allow individuals to apply to the Court for an Assessment, Treatment or Detention order in respect of a child.

In addition, the Young Offenders (Age of Criminal Responsibility) Amendment Bill 2020 (SA) proposes to raise the age of criminal responsibility.

Against this backdrop of significant legislative change, this article aims to raise awareness in the legal and broader community of the Aboriginal Youth Sentencing Court (AYSC), a Pilot Program designed to support eligible Aboriginal and Torres Strait Islander children and young people access services tailored to the individual and provide a pathway for diversion to an alternative Sentencing Program. The AYSC Program is established in recognition of the primary Object of the YOA ‘to secure for Youths who offend against the criminal law the care, correction and guidance necessary for their development…’2 The primary aim of the Program is to reduce reoffending in young people who are repeatedly charged before the Youth Court with offending which is escalating in seriousness and frequency over time. The ability for a child or young person to benefit from this Program rests heavily on their solicitor being open to referring

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eligible clients upon the recommendation of an Aboriginal Youth Justice Officer.

In recent years, there have been only very limited numbers of Aboriginal and Torres Strait Islander Youths referred to the Program, however there is significant potential for the Program to be expanded with the support of key stakeholders including Aboriginal and Torres Strait Islander communities, Youth Justice, SAPOL, support service providers and, crucially, leading organisations and practitioners in the legal sector.

As stated recently in the Hansard in the context of new legislative amendments:3 One of the greatest responsibilities of government, and indeed of every person in our community, is to ensure that every child, no matter their background or circumstance, is safe and supported…

Both the legal community and the courts play an essential role in achieving this responsibility. The AIHW has found that Indigenous children and young people are, on average, younger when they enter Youth Justice supervision compared to non-Indigenous Youths, with 38% being supervised between 10 and 13 years of age.4 Recent data shows that 4266 young people were under supervision on any

given day in 2019-20, with over 14% in detention.5 Individual appearances in relation to Indigenous children and young people in the Youth Court are reported to have increased from 117 to 138 between February and March, 2021.6 Further, the ALRM reports that the ‘10 most prevalent matters’ in the Adelaide Office from 1 July, 2018 to 31 June, 2019 related to charges including breach of bail, theft, aggravated assault, property damage and driving whilst disqualified.7 These statistics reveal the importance of prevention, diversion and the reduction of reoffending being fully explored in the criminal justice system. As recognised in South Australia’s Youth Justice Plan 2020-2023: 8 “A child or young person who is guilty of an offence must be provided with the opportunity to make restitution and learn from their mistakes in ways that promote their development and full potential.”

The AYSC is well-placed to assist in achieving this goal as the Program is designed to facilitate a responsive diversion from incarceration and support the rehabilitation of young offenders. In achieving this aim, the Youth Court has consulted widely with stakeholders and is committed to continual Program reform.

As articulated in the health context of Domain 5 of the Cultural Respect Framework

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2016 – 2026, 9 Stakeholder Partnerships and Collaboration is essential to the continued success of the AYSC Program.

BACKGROUND TO THE AYSC PILOT PROGRAM The AYSC Program is designed to be an intensive court-supervised intervention program, broadly based on the Griffiths remand.10 In terms of the legislative power underpinning the Program, s 22 of the Sentencing Act 2017 (SA) provides sentencing pathways for Aboriginal and Torres Strait Islander offenders and s 29 empowers the Court to defer sentence for rehabilitation and other purposes.

An Aboriginal or Torres Strait Islander youth is eligible for the AYSC Program if they plead guilty to an offence and, due to the nature of their offending, may receive a custodial sentence. A referral can be made by an Aboriginal Youth Justice Officer, Youth Justice or the young person’s solicitor.

Following a referral, an Assessment Report is prepared identifying criminogenic factors and outlining key services the Youth may benefit from engaging with. If the Court accepts the referral, the Youth is referred to services designed to support them address specific challenges, such as drug and alcohol abuse, and arrangements are made to review the Youth’s progress and engagement with support services. The AYSC is convened monthly at the Adelaide Youth Court to review and support the Youth’s progress and a condition of referral is that the Youth undertakes not to reoffend whilst taking part in the Program. If a Youth successfully completes the AYSC Program, their sentence is delivered in court and their efforts and progress are taken into account when a final sentence is imposed.

The Program aims to celebrate small achievements, encouraging participants to actively engage with support services and facilitating this engagement. Key services include educational and vocational training, health services, organisations providing access to mentors and services encouraging engagement in extracurricular activities such as sporting programs.

KEY PROGRAM PARTICIPANTS In addition to the child or young person, attendees at AYSC sessions include a Respected Person (from the same Indigenous community as the young person), the Judge or a Magistrate

of the Youth Court, the family of the young person and their solicitor, the Program Coordinator (from the Treatment Intervention Court), an Aboriginal Youth Justice Officer, service providers, representatives from the Department of Education, Department of Health, Department for Child Protection (if involved) and Youth Justice. The Program Coordinator is responsible for facilitating the engagement of services identified in the Assessment Report. The Aboriginal Youth Justice Officer documents the Youth’s progress, with key measures including school attendance, access to services and service engagement.

RECENT DEVELOPMENTS IN THE PROGRAM The Program has recently adopted a number of recommendations based on stakeholder feedback, including reducing the length of the Program from 12 months to three to six months. The Aboriginal Youth Justice Officer has liaised extensively with community to help bring on board highly-motivated individuals who are committed to playing a central role in the new AYSC Program.

CASE STUDY (Please note: An example only, based on what the Program aims to achieve) John is 15 years of age and has been charged with multiple offences over the last 2 years. He was originally charged with x1 count of theft but has on this occasion been charged with aggravated robbery x3 counts and theft of a motor vehicle. John has been using methamphetamines after first receiving drugs from peers when he was 14 years of age. John’s family has tried to encourage him to quit drugs and focus on his schooling, but John is disengaged and remains in the same peer group. John has pleaded guilty in the Youth Court and John’s solicitor has referred him to the AYSC Program.

After discussions with John, the Aboriginal Youth Justice Officer has learned that John loved playing soccer but was kicked out of his local team due to his escalating behaviour. The AYSC members refer John to a local drug support service and a local Indigenous organisation facilitating access to young mentors. John gains motivation to re-engage with school, sport and family life. John does not reoffend during his 6 month AYSC Program and receives a Certificate of Completion. John is sentenced to a 6 month obligation and a conviction is recorded. One year later, John has not been charged with any new offences and remains drug-free.

SUMMARY: THE PATH AHEAD - RAISING AWARENESS AND MAKING REFERRALS This article aims to promote awareness of the AYSC Program, outline the key features of the Program and illustrate the benefits of referring an eligible child or young person. The AYSC Program aims to provide culturally-sensitive, inclusive and community-focused support tailored to a Youth with the aim of addressing underlying issues which contribute to a Youth’s reoffending. The success of this initiative is highly dependent on the continued support of stakeholders and a commitment in the legal community to realise the potential of young offenders referred to the Program. It is hoped that referrals increase over the next year to enable more positive outcomes to be realised for Aboriginal and Torres Strait Islander children and young people. Early indications suggest that there are strong benefits of engaging in the Program in terms of a reduction in reoffending. B Endnotes 1 Youth Court Act 1993 (SA) s 7(b).

2 Young Offenders Act 1993 (SA) s 3(1).

3 South Australia, Parliamentary Debates, House of Assembly, 30 March 2021, 4787 (Katrine Hildyard).

4 Australian Institute of Health and Welfare, ‘Youth Justice in Australia 2018-19’ (Report, Cat. No. JUV 132, 2020) p. vi. <https:// www.aihw.gov.au/getmedia/a5a364b9-fe694d02-9c93-1965a69a3d93/aihw-juv-132.pdf. aspx?inline=true>.

5 Australian Government Productivity Commission, ’Report on Government Services 2021’ (Report, Part F: Community Services, Chapter 17 Youth Justice Services, 20 January 2021) 3 <https://www.pc.gov.au/research/ ongoing/report-on-government-services/2021/ community-services/youth-justice/rogs-2021partf-section17-youth-justice-services.pdf>.

6 Youth Court of South Australia (Internal Statistics), February-March 2021.

7 Aboriginal Legal Rights Movement, (Annual Report 2018-19) 44 <https://www.alrm.org.au/ wp-content/uploads/2020/01/AR-8.pdf>.

8 Department of Human Services, ‘Young People Connected, Communities Protected: South Australia’s Youth Justice State Plan 2020-2023’ (Report, n.d.), 6 <https://dhs.sa.gov.au/__data/ assets/pdf_file/0008/89774/DHS-1322-YJState-Plan-2020-23_FA.pdf>.

9 Australian Health Ministers’ Advisory Council’s National Aboriginal and Torres Strait Islander Health Standing Committee, ‘Cultural Respect Framework 2016-2026 For Aboriginal and Torres Strait Islander Health’ (Report, n.d.)

6, 18. <https://nacchocommunique.files. wordpress.com/2016/12/cultural_respect_ framework_1december2016_1.pdf>.

10 See Griffiths v The Queen (1977) 137 CLR 293.

July 2021 THE BULLETIN

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FEATURE

Royal Commission into Aged Care Quality and Safety: Time for a paradigm shift to protect the human rights of older Australians DR SARAH MOULDS, SENIOR LECTURER, UNISA JUSTICE & SOCIETY

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he deeply disturbing findings of the Royal Commission into Aged Care Quality and Safety (the Royal Commission), and the stories of personal anguish, abuse and neglect so courageously shared by older Australians and their families, demand our full attention. In its Final Report, publicly released in March, 2021, the Royal Commission confirmed what many older Australians and their families had known for some time: Australia’s aged care system is in crisis. In 2019–20, residential aged care services reported 5718 allegations of assault under the mandatory reporting requirements of the Aged Care Act 1997 (Cth).1 In a survey considered by the Commission, one in every 20 residents in aged-care facilities reported having been physically abused.2 Just over 30% of respondents said they had experienced neglect.3 Older people are waiting for years for home care packages, some dying or suffering significant physical harm before receiving the care they need.4 Accountability mechanisms remain insufficient and weak.5 Those working in the aged care system (87% of whom are women) are also suffering from low wages, high workloads and workplace abuse as they ‘plug the gaps in the system’.6 Against this backdrop of deep and systemic failings, the Royal Commission made 148 recommendations, some of which are focused on effecting a fundamental restructuring of Australia’s aged care system and others seek to implement urgent changes to existing processes. One central idea permeates the Final Report’s eight volumes: the concept of dignity. The core idea is to promote the right of older Australians to play an active, empowered role in managing their own lives and making decisions about their own care.

The concept of dignity underpins internationally recognised human rights

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instruments including the Universal Declaration of Human Rights, which describes the ‘recognition of the inherent dignity … of all members of the human family as the foundation of freedom, justice and peace in the world’.7 The concept of dignity is the first and primary principle within the 1991 UN Principles for Older Persons, which also include principles of independence, participation, care, and self-fulfilment.8 The concept of dignity and the need to protect and promote the rights of older Australians is also familiar to policy makers in South Australia, particularly those who have developed the South Australian Charter of the Rights and Freedoms of Vulnerable Adults.9 However, as the Royal Commission into Aged Care shows, integrating the concept of dignity into aged care policies, service delivery and regulatory and oversight frameworks takes more than familiarity with human rights concepts and language. It demands a ‘paradigm shift’ in the way we go about developing, implementing, enforcing and reviewing these frameworks. This article seeks to briefly summarise some of the key rightsrelated recommendations made by the Royal Commission in its Final Report and discusses their relevance for South Australia. It concludes by offering some thoughts as to the potential benefits of adopting a human rights approach to policy-making in this area in the future.

THE KEY HUMAN RIGHTS RECOMMENDATIONS MADE BY THE ROYAL COMMISSION INTO AGED CARE QUALITY AND SAFETY Many of the Royal Commission’s recommendations addressed issues relating to functioning of the system of aged care in Australia and its resourcing,10 but two key areas of recommended legal reform related to: • Developing a rights-based legislative

and regulatory framework for a new aged care system,11 and • Implementing new legal duties and standards relating to quality and safety.12 The Royal Commission’s very first recommendation is that the Aged Care Act 1997 (Cth) should be replaced with a new Act to come into force by no later than 1 July, 2023.13 The new Act should contain a list of rights of people seeking and receiving aged care and make it clear that those rights should be taken into account in interpreting the new law.14 The list of rights should empower people seeking aged care to have equitable access to care services and the right to exercise choice between available services.15 The rights of those already receiving aged care should also be included, in particular the right to: • liberty, freedom of movement, and freedom from restraint; • autonomy and the presumption of legal capacity; • make decisions about their care and the quality of their lives; • social participation; • fair, equitable and non-discriminatory treatment in receiving care; and • voice opinions and make complaints.16 The Royal Commission also explained that the rights of those receiving end of life care should also be specifically protected, as well as the rights of those providing informal care for others.17 These rights are to be supported by a set of key principles, also enshrined in the new Act, that would guide the administration of the Act. These principles include ensuring the safety, health and wellbeing of people receiving aged care and putting older people first so that their preferences and needs drive the delivery of care.18 Additional principles focus on ensuring that older people are treated as individuals and are provided with

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support and care in a way that promotes their dignity and respects them as equal citizens.19 Specific principles relating to the rights of Aboriginal and Torres Strait Islander peoples and those with diverse backgrounds were also recommended.20 The Royal Commission further recommended that the Act specifically include the principle that the Australian Government will ‘fund the aged care system at the level necessary to deliver high quality and safe aged care and ensure the aged care system’s sustainability, resilience and endurance.’21 Sufficient funding will be critical to ensuring that the rights proposed to be set out in the new Act can be realised.

Under the model recommended by the Royal Commission, compliance with these rights and principles would be supported by new governance structures: either a new Australian Aged Care Commission and an Australian Aged Care Advisory Council22 or a Cabinet Minister and Department of Health and Aged Care supported by a Council of Elders.23 The Federal Government has accepted the latter recommendation with the addition of an Australian Aged Care Advisory Council.24 Taken alongside a range of other specific recommendations designed to address particular aspects of abuse within the current aged care system such as those relating to the overuse of chemical restraints,25 the lack of culturallyappropriate care for Aboriginal and Torres Strait Islander peoples26 and the urgent need to remove young people with disabilities from aged care settings,27 these recommendations have been described as supporting the development of a new ‘human rights-based approach’ to legislative and regulatory design of aged care services in Australia.28 The concept of dignity is central to this human rights based approach, which is also supplemented by recommendations

that aim to support older people’s autonomy and choice, for example by recommending greater access to support services at home,29 known as home care packages, and to clear the waiting list for this assistance.

BUT CAN IT WORK? IMPLEMENTING A RIGHTS-BASED APPROACH TO AGED CARE QUALITY AND SAFETY In order to achieve this type of transition, the rights and principles listed in the new Act must be supported by robust oversight and accountability mechanisms, and there must be real consequences and remedies for breaches. The rights and principles must also be supported by sufficient funding to provide for the larger and better skilled workforce necessary to deliver high quality and safe aged care.

The Royal Commission’s recommendations move beyond the existing Charter of Aged Care Rights30 by linking rights concepts and principles with new legal duties on providers, including a general, positive and nondelegable statutory duty on providers to provide high quality and safe aged care.31 The Final Report also dedicates a number of chapters to describing the bodies and processes needed to enforce rights standards and key principles in practice, and to ensure accountability for performance breaches and remedies for sub-standard care. These include making changes to the Aged Care Quality Standards to better reflect rights-based concepts32 and amending the Quality of Care Principles 2014 (Cth) to require that the use of restrictive practices in aged care must be based on an independent expert assessment and subject to ongoing reporting and monitoring,33 similar to the approach in the National Disability Insurance Scheme.34 By recommending the inclusion of

specific prohibitions (for example on the use of chemical restraints in the absence of direct doctor oversight)35 and targets (for example that no person under the age of 45 years lives in residential aged care from 1 January, 2022)36 within the proposed new legislative and regulatory regime, the Royal Commission has also sought to give legal ‘teeth’ to the normative standards articulated in internationally recognised human rights instruments.

Perhaps even more significantly, the new aged care system envisaged by the Royal Commission recognises the legal and political agency of older Australians by equipping consumers of aged care services with a range of new legal structures and pathways to assess and access the types of aged care services they consider will best promote and protect their dignity and rights. For example, establishing an independent Aged Care Safety and Quality Authority to provide an independent source of information for those seeking to understand and enforce care service standards37 as well as an Inspector-General of Aged Care to investigate, monitor and report on the administration and governance of the aged care system.38 It is this combination of features – the structural recognition of human rights concepts and principles within the proposed new legislative framework as well as the mechanisms designed to give individuals the power to access and enforce those standards in practice – that should inspire South Australian law and policy makers to re-imagine how it participates in the provision and regulation of aged care services in this State.

IMPLICATIONS FOR SOUTH AUSTRALIA The federalisation of aged care services and the heavy reliance on federal funding across the sector has been increasing in July 2021 THE BULLETIN

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intensity since the enactment of the Aged Care Act 1997. As a result, it is not surprising that the vast bulk of recommendations contained in the Royal Commission’s report are directed at the federal jurisdiction.

However, the new aged care system envisaged in the Final Report has significant implications – and opportunities – for the States and Territories.

Currently, there are over 20 separate South Australian Acts that interact with or regulate the provision of aged care services in South Australia, or that seek to protect and promote the rights of older South Australians.39 However, at a state level, there are only weak accountability measures in place to protect Australians suffering from elder abuse or substandard care. This is despite efforts to introduce a rights-based framework to protect older people in the form of the Ageing and Adult Safeguarding Act 1995 (which established the Adult Safeguarding Unit) and the adoption of the Strategy to Safeguard the Rights of Older South Australians 2014-2021 which includes a South Australian Charter of the Rights and Freedoms of Vulnerable Adults.40 The South Australian Charter contains rights principles that align closely with those recommended by the Royal Commission, including the right to be treated with dignity and humanity,41 the right to live an autonomous and self-determined life, and the right to enjoy the highest attainable standard of physical and mental health.42 However, despite the reference to rightsbased principles in the Strategy and the Ageing and Adult Safeguarding Act 1995 (SA), the Adult Safeguarding Unit is limited in power, because it can only investigate and escalate reports of abuse. It has no legal authority to enforce rights standards in care or treatment. It cannot offer a legal remedy for those experiencing abuse. Moreover, despite the best intentions of those involved in designing and implementing these policies, neither the Adult Safeguarding Unit nor the Charter have proven capable of providing the type of ‘paradigm shift’ the Royal Commission envisages in its Final Report.

The Royal Commission’s recommendations offer an important opportunity for South Australia to address these shortcomings. Immediate action could be taken at the State level to respond to specific practical problems identified by the Royal Commission including improving access to aids, equipment and assistive technology within residential care settings, improving access to state-based health

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services and improving transfers between hospitals and residential care.43 This would align directly with the Royal Commission’s recommendation to improve access to State and Territory health services by people receiving aged care by 1 July, 2022.44 South Australia could also take a leadership role at the federal and state level in facilitating active participation by older Australians in policy and program design.

This could include active participation in the proposed federal Council of Elders,45 a high-level older people’s advisory body with a wide remit to consult older people and advise the Minister and Department on any aspect of aged care.46 A similar Council of Elders should be established at the State level to guide South Australian policy and program development and to review existing regulatory frameworks.

South Australia could also play a leadership role in amending the National Health Reform Agreement47 to include an explicit statement of the respective roles and responsibilities of approved aged care providers and State and Territory health care providers to deliver health care to people receiving aged care. South Australia could also conduct a state-wide audit of existing laws and policies relating to aged care and the protection and promotion of the rights of older South Australians – perhaps through an expansion of the existing consultative process related to the development of a new Strategy to Safeguard the Rights of Older South Australians by the Office for Ageing Well or through a reference to the South Australian Law Reform Institute - to determine the extent to which these laws and policies adhere to and promote the human rights standards articulated by the Royal commission in its Final Report. Existing independent and not-for-profit agencies, such as the Council of the Aged (SA) and the Aged Rights Advocacy Service, may be well placed to facilitate or contribute to such an audit.

forward. It envisages a new aged care system for Australia that is not just ‘addressing gaps’ in existing systems. The new aged care system outlined by the Royal Commission is led by and for older Australians and funded to protect and promote their dignity. It is a system that is underpinned by a legal framework that acknowledges the human rights of older Australians and seeks to give practical meaning to these standards by imposing legal duties on providers and introducing new independent oversight and enforcement mechanisms. This new aged care system also offers opportunities for South Australia to build on its commitment to protect and promote the rights of older South Australians.

There are signs of hope from the Federal Government’s response to the Final Report including a commitment to a new Act and the $17.7 billion aged care package (spent over five years) announced in the 2021-2022 Federal Budget.48 This expenditure includes 80,000 more home care packages, as well as funding for providers to increase the time nurses and carers are required to spend with their patients, a commitment to provide an additional 33,800 training places for personal carers, and the development of an Indigenous workforce.49 Another sign of hope is the development of a new Strategy to Safeguard the Rights of Older South Australians by the South Australian Office for Ageing Well, which appears to have a genuine commitment to including the voices of older South Australians.

As the Australian Human Rights Commission has warned, the stakes are high: If we don’t listen to older people, we end up with systems that fail to meet their needs. We need to put people at the heart of all aged care initiatives, so that the care received by every Australian is not ‘just good enough’ but is ‘more than good enough’.50 Nothing short of a ‘paradigm shift’ can make this vision come to reality. B

CONCLUSION

Endnotes 1 Royal Commission into Aged Care Quality and Safety, (Final Report, March 2021) ‘A Summary of the Final Report’ p. 68 (referred to as Summary of Final Report) available at < https://agedcare. royalcommission.gov.au/sites/default/ files/2021-03/final-report-executive-summary.pdf> 2 Mary Lloyd, Almost 40 per cent of residents in aged care facilities have been abused, data released by royal commission shows, ABC Online, 22 December 2021 available at <https://www.abc.net. au/news/2020-12-22/royal-commission-estimates40-pc-aged-care-residents-face-abuse/13007864 > 3 Ibid.

4 Summary of Final Report, p. 66.

5 Ibid, p. 154.

The shameful realities documented by the Royal Commission into Australia’s aged care system go well beyond legislative shortcomings and resource inadequacies.

They speak to a culture of abuse and neglect that has been ingrained in the systems designed to support our elders, our parents and grandparents, including during their most vulnerable years.

Through its lengthy Final Report, the Royal Commission has signalled a pathway

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6 Tracey Burton, ‘Want to help women?

Pay more for aged care’ Probono Australia , 21 April 2021 available at <https:// probonoaustralia.com.au/news/2021/04/ want-to-help-women-pay-more-for-agedcare/?utm_source=Pro+Bono+Australia++email+updates&utm_campaign=a9b08c9d8bNews+22_April_21&utm_medium=email&utm_ term=0_5ee68172fb-a9b08c9d8b-148096224&mc_ cid=a9b08c9d8b&mc_eid=2f7320a758 > 7 United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Preamble.

8 United Nations General Assembly, Principles for Older Persons (Resolution 46/91) 16 December 1991.

9 Government of South Australia, Department of Health, South Australian Charter of the Rights and Freedoms of Older People, (2014) available at <https:// www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/ stop+elder+abuse/stop+elder+abuse> 10 Summary of Final Report, above n 2, Chapters 4-16 and 26.

11 Ibid, Chapters 1 & 2.

12 Ibid, Chapter 3.

13 Royal Commission into Aged Care Quality and Safety, (Final Report, March 2021) ‘List of Recommendations’ Recommendation 2 (referred to as List of Recommendations) available at <https:// agedcare.royalcommission.gov.au/publications/ final-report-list-recommendations>.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid, Recommendation 3.

19 Ibid.

20 Ibid, Recommendation 47.

21 Ibid, Recommendation 3.

22 Ibid, Recommendations 5 and 7. (as recommended

by Commissioner Pagone).

23 Ibid, Recommendations 8-9 (as recommended by Commissioner Briggs) 24 Australian Government, Department of Health, Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, (2021) p. 4-11 (referred to as Federal Government’s Response to Final Report) available at <https:// www.health.gov.au/resources/publications/

australian-government-response-to-the-final-reportof-the-royal-commission-into-aged-care-qualityand-safety>.

25 Ibid, Recommendation 17.

26 Ibid, Recommendation 47.

27 Ibid, Recommendation 30.

28 Stephen Duckett and Hal Swerissen, Report: Rethinking aged care: emphasising the rights of older Australians (Grattan Institute, October 2020) available at < https://grattan.edu.au/wp-content/ uploads/2020/10/Rethinking-Aged-Care-GrattanReport.pdf> 29 List of Recommendations, above n 27, Recommendation 39.

30 User Rights Principles 2014 (Cth), Schedule 1.

31 List of Recommendations, above n 27, Recommendation 14. In addition, it was recommended that any entity that facilitates the provision of aged care services funded in whole or in part under the new Act should have a duty to ensure that any worker whom it makes available to perform personal care work has the experience, qualifications, skills and training to perform the particular personal care or nursing care work the person is being asked to perform.

32 Ibid, Recommendation 13.

33 Ibid, Recommendation 14.

34 See National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth).

35 Ibid, Recommendation 17.

36 Ibid, Recommendation 74.

37 Ibid, Recommendation 10 (recommend by Commissioner Briggs).

38 Ibid, Recommendation, 12.

39 See e.g. Advance Care Directives Act 2013 (SA); Aged and Infirm Persons Property Act 1940 (SA); Ageing and Adult Safeguarding Act 1995 (SA); Carers Recognition Act 2005 (SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA); Coroners Act 2003 (SA); Correctional Services Act 1982 (SA); Criminal Law Consolidation Act 1935 (SA); Equal Opportunity Act 1984 (SA); Guardianship and Administration Act 1993 (SA); Intervention Orders (Prevention of Abuse) Act 2009 (SA); Mental Health Act 2009 (SA); ; Powers of Attorney and Agency Act 1984 (SA); Residential Parks Act 2007 (SA); Retirement Villages Act 1987 (SA); South Australian Civil Administrative Tribunal Act 2014 (SA); South Australian Public Health Act 2011 (SA); Summary Offences Act 1953 (SA); Supported Residential

Facilities Act 1992 (SA).

40 Government of South Australia, Office for Ageing Well, Strategy to Safeguard the Rights of Older South Australians 2014-2021 (2014) available at <https://www.sahealth.sa.gov.au/wps/wcm/ connect/2e5d0e004459d5af88d9aa76d172935c/ Strategy+to+Safeguard+the+Rights+of+ Older+South+Australians+WEB+FINAL.pdf?M OD=AJPERES&amp;CACHEID=ROOTWOR KSPACE-2e5d0e004459d5af88d9aa76d172935cnwKmYs7>.

41 Government of South Australia, Department of Health, South Australian Charter of the Rights and Freedoms of Older People, (2014) available at <https:// www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/ stop+elder+abuse/stop+elder+abuse> 42 Government of South Australia, Office for Ageing Well, Strategy to Safeguard the Rights of Older South Australians 2014-2021 (2014) p. 8.

43 See e.g. Council of the Aged, ‘Royal Commission into Aged Care Quality and Safety’ webpage, available at < https://www.cotasa.org.au/policy/ royal-commission-aged-care-quality-safety.aspx>.

44 List of Recommendations, above n 27, Recommendation 70.

45 Ibid, recommended by Commissioner Briggs.

46 Ibid, Recommendation 9.

47 Ibid, Recommendation 69 48 Michell Grattan, ‘Budget splashes cash, with $17.7 billion for aged care and a pitch to women’, The Conversation, online, 11 May 2021 available at < https://theconversation.com/ budget-splashes-cash-with-17-7-billion-foraged-care-and-a-pitch-to-women-159227?utm_ medium=email&utm_campaign=Budget%20 newsletter&utm_content=Budget%20newsletter +CID_0a40dbb70de7f95e714dc644b807c51d& utm_source=campaign_monitor&utm_ term=Budget%20splashes%20cash%20with%20 177%20billion%20for%20aged%20care%20 and%20a%20pitch%20to%20women>.

49 Ibid.

50 Australian Human Rights Commission, ‘Statement on the Aged Care Royal Commission Report’, Medial Release, Canberra, 1 March 2021, available at < https://humanrights.gov.au/about/news/ media-releases/statement-aged-care-royalcommission-report>.

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DISABILITY RIGHTS

Hiding in plain sight: Why disability laws and policies should encourage community participation, not closed environments NATALIE WADE, PRINCIPAL LAWYER, EQUALITY LAWYERS

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eople with disability have been living in institutions since the colonisation of South Australia (and time before that around Australia and the world).

Locked away from the community, isolated from their families and without work or education rights was seen to be the norm – and for some groups with the current community – this still is the standard approach to long-term housing for people with disability. It is important to understand the history behind the institutionalisation of people with disability, to advance the rights of people with disability to housing, independent living and social and economic participation.

DISABILITY INSTITUTIONS IN SOUTH AUSTRALIA At the time of colonisation, and for some 42 years after, people with disability were found in hospital but when they were no longer sick enough to be in hospital, were moved to the Destitute Asylum.1 In 1878, the Home for Incurables was established. Patients admitted from 1879 to the Home for Incurables “… suffered from some kind of incurable disease which was neither contagious, nor infectious, and was mentally sound.”2 Prior to the establishment of the Home for Incurables, people with disability were mostly found at the Destitute Asylum. The beds were in rooms like hospital wards and patients cared for by nursing staff. The Julia Farr Centre (previously the Home for Incurables) stopped taking new residents in 2014, with the last resident leaving in 2020.3 In 1939, the Somerton Crippled Children’s Home was established by the Cripple Children’s Association for children with polio disease. In 1944, the Home expanding to providing housing to children living with cerebral palsy and in 1951 included children living with neuromuscular diseases. In 1976, the children from the Somerton Home moved to a new Regency Park site, named “Regency Park Centre for the Young Disabled”. The residential facility was closed in 1992.4

18 THE BULLETIN July 2021

In 1971, the Strathmont Centre was established to provide accommodation and training of people with intellectual disabilities, including children and young people. Run by the Intellectual Disability Services Council (IDSC), the Centre was a deliberate shift away from the wardlike hospital approach at the Home for Incurables and Somerton Home, and offered “a collection of 17 villas, each containing four home units, surrounded by courtyards and lawns, and with a library, swimming pool and meeting hall”.5 The Strathmont Centre closed in 2014.

For almost two centuries, people with disability have been housed in institutions; removed from the community and their families, without work or education rights.

These closed environments have informed the tone and approach of public policy and laws for housing of people with disability.

CLOSING INSTITUTIONS – A NEW APPROACH TO DISABILITY HOUSING Leading up to the closure of the large adult institutions, State Government turned to new ways to support people with disability in the community. “Group homes”, where people with disability lived in the same house with 3 -4 residents and “cluster sites”, where people with disability lived in separate units or apartments but on the same parcel of land became the next iteration of housing rights for the disability community.

Significant motivation for housing models throughout history has been found in funding everyday supports. Large institutions were built on a medicalised model where treatment and therapy were provided onsite. But in the smaller versions of community institutions, in a group home or cluster site settings, the economies of scale to have multiple people with disability living who required similar levels of support made a version of common sense. Rather than funding a person to live with their family, or in suburb of their choosing, congregating those people where paid support staff

could visit frequently throughout the day (or stay for the purposes of 24/7 care) was more economical and reasonable in a world where the choice of the person was not considered. However this version saw people with disability “shut out” of the community, facing “socially, culturally and politically isolated”6.

THE NDIS VERSION In 2013, the National Disability Insurance Scheme (NDIS) federalised the funding for disability support services and promised to ‘support the independence and social and economic participation of people with disability’7 and ‘enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports’8. It was hoped, if not expected, by advocates and those with disability that this would finally transform the housing options for people with disability. That housing options would support people with disability to choose where they live, and who they live with.

The latest iteration of disability housing under the NDIS model is Specialist Disability Accommodation (SDA). SDA is “accommodation for people who require specialist housing solutions, including to assist with the delivery of supports that cater for their extreme functional impairment or very high support needs”.

The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (SDA Rules), an instrument under the NDIS Act, allows funding for different models of housing: • existing stock for a building that already exists and houses 5 or less longer-term residents or more than 5 longer-term residents if they are from the same family,9 • legacy stock for buildings that already existing to house more than 5 long longer-term residents and have shared areas10, and • a new build which is built on or after1 April 2016, to house 5 or fewer longerterm residents11.

DISABILITY RIGHTS

Natalie Wade (left) demonstrates techniques to communicate with people with disability at a recent Communication Partners event.

The SDA Rules go on to state that the SDA building types that will attract funding are: • an apartment: self contained and typically built above or below another dwelling; • villa, duplex and townhouse: has 3 or less residents, but separated from each other; • house: low-rise dwelling with gardens and a courtyard and features of separation in land and living arrangements • group home: 4 or 5 long term residents.12 This is a shorthand way to describe a very complex system with various legislative instrumentalities and Price Guides that govern who gets what. And while it seems that there is finally choice and control for people with disability, a closer look at the number of SDA properties that feature congregate or shared arrangements is alarming. The continued funding of existing and legacy stock perpetuates previous models of group homes and cluster sites, even some larger dwellings with more than five people with disability. The apartment, villa/ duplex/townhouse funding resembles

what we previously thought of as cluster sites and congregate care models.

WHERE WE ARE GOING VS. WHERE WE WANT TO GO On the current NDIS legislative framework and public policies, it looks as though we are going for a third century of closed environments when housing people with disability. So long as we build law and public policy around people with disability living in specific places in our community, rather than in public or social housing, private rentals and owner-occupied homes we will continue to keep people with disability in closed environments.

Closed environments do not have to look as draconian as a prison, as bland as a nursing home or as intimidating as a 9-storey building glaring over Fullarton.

These environments can be small apartments, units and villas throughout the suburbs of South Australia. But where we create housing options that bring people with disability together, who would otherwise not live together, provide them with standardised supports and do not advance their right to social and economic participation, closed environments are created. Hiding in plain sight. B

Endnotes 1 Kerr, C. The Home for Incurables – The First 100 Years, Luthern Publishing House, p 6.

2 Kerr, C. The Home for Incurables – The First 100 Years, Luthern Publishing House, p 6.

3 Department of Human Services, Highgate Park to be sole, legacy to support people with disability (Media Release) 17 April 2021 < https://dhs. sa.gov.au/latest-news/media-releases-2021/ highgate-park-to-be-sold,-legacy-to-supportpeople-with-disability?utm_campaign=latestnews&utm_source=web&utm_content=homepage&utm_term=Highgate%20Park%20to%20 be%20sold,%20legacy%20to%20support%20 people%20with%20disability> 4 Novita, History of Novita (Web Page) <https:// www.novita.org.au/history-of-novita/> 5 Find & Connect – History and Information about Australian orphanages, children’s homes and other institutions, Strathmont Centre (1971 – 2014) (Web Page) < https:// www.findandconnect.gov.au/guide/sa/ SE01288#tab2> 6 Australian Government, ‘Shut Out: The Experience of People with Disability and their Families in Australia” (2009) p. 1.

7 National Disability Insurance Scheme Act 2013 (Cth), s 3(c).

8 National Disability Insurance Scheme Act 2013 (Cth), s 3(e).

9 National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, s 6.

10 National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, s 7.

11 National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, s 8.

12 National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020, Schedule 1.

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ESTATE PLANNING

Protecting loved ones within estate planning NOUR HARB, ASSOCIATE, TINDALL GASK BENTLEY

A

mongst the COVID-19 headlines of 2020, you may recall the tragic story of South Australian woman Ann Marie Smith, which left many feeling horrified and helpless.

Ms Smith was found in deplorable conditions, having been abandoned for days to slowly perish, sitting upright in her squalid chair. Ms Smith suffered multi-organ failure as a result of her severe neglect and malnutrition, passing alone and undignified.

An investigative task force co-chaired

by Dr. David Caudrey, South Australian Disability Advocate, commented on the tragedy: “It’s every parent’s nightmare to think that when you’re no longer around or you can no longer look after your son or daughter with a disability that somehow or another they will not be looked after properly…”

The taskforce specially examined “gaps in oversight and safeguarding for people living with disability in South Australia”.1 The circumstances surrounding Ms Smith’s death poses a challenging question for estate planning lawyers: what options are available to protect vulnerable dependents living with a disability?

Whilst there is no substitute for the care and support of family, there are legal mechanisms that can assist securing a beneficiary’s financial future within the testator’s Will.

Although this is often a multifaceted issue, you can ensure your clients are well advised on protective estate plans for their spouses, children or other dependents, as required.

SPECIAL DISABILITY TRUST IN WILLS The Special Disability Trust (SDT) can be established to assist families with

20 THE BULLETIN July 2021

planning for and securing the financial future of their loved ones who suffer with a disability.

The SDT is generally established in the name of the beneficiary who has the disability (the principal beneficiary) within the Will of the parent or guardian.

This structure allows a testator to transfer assets to the protective trust (stamp duty free) upon their death and the income and capital of which, must be applied solely for the accommodation and care needs of the principal beneficiary.

As with any other trust, the SDT will appoint a trustee, who bears the responsibility of applying the trust monies towards the welfare of principal beneficiary.

There must be at least two trustees at all times, except where a professional trustee or a corporate trustee is appointed.

The category of expenses that the funds can be applied to is strict - the expense must be associated with the beneficiary’s disability.

Some examples of how the trustee can apply SDT funds are listed below: • paying for medical and dental expenses; • personal care expenses; • the purchase of a primary place of residence; • renovations that modify the beneficiary’s existing residence for ease of mobility; • residential care services if the beneficiary is in care; • modification to or the purchase of a motor vehicle; • the fees and costs associated with private health funds and like insurances.

In addition to these expenses, an SDT can pay for discretionary spending. The cap for this category of spending is $12,500 as of 1 July 2020 for the 2020-2021 financial year, adjusted annually.

Discretionary spending is classed as the following, that is not connected to the principal beneficiary’s disability: • Food, toiletries and clothing; • Motor vehicle expenses; • Capital improvements to the beneficiary’s home; • Leisure activities and outings; • Therapy; • Electronics and entertainment; • Other insurances not associated with the disability.

INCOME AND ASSETS OF THE SDT: Income assessment One of the most appealing benefits of utilising an SDT to transfer assets to a disabled beneficiary is that the trust assets do not affect the principal beneficiary’s entitlement to disability income support.

Income that is generated from the SDT assets (e.g. rent, dividends or interest) will not be included in the beneficiary’s income test for the purposes of an application for disability benefits.

Asset assessment The SDT can also hold assessable assets of up to $694,000 for the 2020-2021 financial year, adjusted annually, which are exempt for from the application of the social security assets test. Holding assets in an SDT will therefore not affect income support entitlements, up to this concessional asset value limit, indexed annually.

It should be noted that the principal beneficiary’s principal place of resident is not an assessable asset and is exempt from the concessional asset value limit.

Eligibility Criteria It is important to seek experienced advice prior to establishing an SDT, as the eligibility criteria for the principal

ESTATE PLANNING

beneficiary is narrow2 and qualifying for SDT status and treatment is regulated by a strict statutory framework.

It is necessary that, before a SDT is established, the prospective trust beneficiary must be assessed as severely disabled under to qualify for the trust benefits.3 Some of the eligibility criteria used for a principal beneficiary are: the disability would qualify a sole carer for carer payments or carer allowance;4 The disability inhibits the principal beneficiary from working, and has no likelihood of working, for more than 7 hours a week for a wage that is at or above the relevant minimum wage;5 The disability or impairment qualifies the principal beneficiary for a disability support pension.6 There are also restrictions on the types of investments that can be established within the trust.7 For example, the trustee is prohibited from purchasing

or leasing property from anybody who is an immediate family member of the principal beneficiary even if the property is to be used for the principal beneficiary’s accommodation.

Independent audits must also be conducted and complied with8, in addition to the annual provision of financial statements.9 Upon the death of the principal beneficiary Another attractive benefit for the testator establishing an SDT by will, is that when the principal beneficiary dies, the testator can stipulate who the residuary beneficiaries of the trust are.

The trust does not need to vest, it can continue for the residuary beneficiaries, however it will lose it’s SDT status upon the death of the principal beneficiary.

The structure is therefore also advantageous for a testator who wishes

to circumvent assets being distributed to the estate of the principal beneficiary, as they may not have testamentary capacity to then bequeath those assets.

Special Disability Trusts are a useful estate planning tool when tailored to the right client’s intentions and circumstances.

The sophisticated structure ensures that future care requirements will be seen to without financial burden on other relatives. B Endnotes 1 Premier of South Australia, ‘New disability taskforce to be established’ (Media Release, 18 May 2020).

2 Social Security Act 1991 (Cth), s 1209M. 3 Ibid.

4 Ibid, s 1209M(2)(b)(i).

5 Ibid, 2(c)(i).

6 Ibid, 2(a)(i).

7 Ibid, s 1209R. 8 Ibid, s 1209T. 9 Ibid, s1209S.

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1800 199 682 | thewiseowl@wiseowllegal.com.au | www.wiseowllegal.com.au July 2021 THE BULLETIN 21

POWER OF ATTORNEY

SALRI’S EXAMINATION OF ENDURING POWERS OF ATTORNEY: CHARTER FOR ABUSE OR NECESSARY ASPECT OF DAILY LIFE? DR DAVID PLATER, DR GABRIELLE GOLDING AND DR SYLVIA VILLIOS1

I

n January, 2021, the independent South Australian Law Reform Institute (SALRI), based at the Adelaide Law School released its major report into the role and operation of Enduring Powers of Attorney (EPAs) under the Powers of Attorney and Agency Act 1984 (SA) (POA Act) in South Australia.2 SALRI’s report made 120 recommendations for changes to law and practice to clarify and improve the use and operation of EPAs in South Australia. In particular, SALRI’s recommendations are aimed at achieving the right balance between providing better safeguards against abuse and ensuring that people are not deterred from entering into these arrangements. SALRI’s recommendations drew on its extensive multidisciplinary research and consultation with the legal profession, interested parties, experts and the community. The former Attorney-General, the Hon John Rau SC MP, and the present Attorney-General, the Hon Vickie Chapman MP, both supported SALRI’s review.

UNDERSTANDING POWERS OF ATTORNEY (POAS) POAs are characterised as either general or enduring. An attorney’s powers under both a general or enduring POA are generally characterised as financial and legal powers. In South Australia, POAs cover financial or business affairs, but not health or medical issues (which are left to an Advance Care Directive (ACD)).3 A general POA provides the legal power to another individual (the attorney) to deal with financial and property matters on behalf of the individual granting the power (the principal).4 This can be for a limited time period, such as when

22 THE BULLETIN July 2021

the principal is away on vacation, or for a particular purpose.5 A general POA ceases automatically when a principal loses legal capacity. In contrast, all Australian jurisdictions introduced laws from 1980 onward to establish ‘enduring’ POAs, which will continue to remain effective, notwithstanding the principal’s loss of decision-making ability.6 SALRI focussed on the use and operation of EPAs only.

The respect for individual choice underpins the ability to establish an EPA; namely, the right to choose who will make financial decisions in your place when you are no longer able. An EPA is an ‘important expression of autonomy’7 and a valuable and convenient legal instrument by which many individuals can protect their financial and property interests in the event of their future cognitive impairment.

The underlying principles of an EPA are that of autonomy and to protect the vulnerable from potential abuse, especially financial abuse. However, SALRI found that these goals and principles are not always protected by the existing framework.

There are valid concerns over the perceived uncertainty, lack of clarity and complexity about their role and operation, and particular concerns for the scope under the present law for their abuse and exploitation.8 Recent developments have compounded these concerns over the role and operation of EPAs. Issues of both elder abuse9 (including in South Australia)10 and the financial and other abuse of persons with disability11 have gained recent prominence and renewed concern. The recent disturbing case of Ann-Marie Smith was often raised to SALRI to highlight the concerns as to the abuse of persons with

disability.12 There are particular concerns about the operation and misuse of EPAs.13 A ‘culture of entitlement’, particularly among adult children, now arises.14 One commentator went as far to declare that EPAs ‘may be the single most abused legal documents in our judicial system’.15 This statement may be an exaggeration, as reliable statistics concerning their misuse are lacking,16 but financial abuse is ‘not uncommon’17 and many reports relate to the misuse of EPAs.18 Such abuse is typically carried out by a close family member; usually an adult son or daughter.19 The impact of such abuse ‘has a devastating effect’20 on both older persons and persons with an intellectual disability.21 SALRI was presented with powerful case examples of such abuse in both its research and consultation.

SALRI heard of much confusion and uncertainty as to the role and scope of EPAs, especially as to the roles and responsibilities of attorneys and others.22 Misuse may well be attributable to misunderstanding or confusion by an attorney as to their role as opposed to outright fraud. Many of the problems and concerns identified with EPAs were not cases of outright fraud or abuse but rather arose from confusion where ‘the attorneys were simply misguided as to the nature and extent of their duties or believed that their actions somehow benefited the principals’.23 A Victorian Parliamentary Report observed that many attorneys have only a ‘rudimentary understanding’ of their role.24 Most EPAs are seemingly used honestly and diligently.25 One experienced lawyer told SALRI that at least 95% of EPAs in his experience did not present grounds for concern. EPAs are not used as widely

POWER OF ATTORNEY

as they could and should be.26 SALRI therefore found that, whilst it is crucial to prevent and address fraud, the utility of POAs should not be undermined and the use of EPAs should be encouraged.27

INADEQUACY OF EXISTING REMEDIES FOR ABUSES OF EPAS SALRI also found that the existing civil and/or criminal law remedies are insufficient to prevent or address the misuse or abuse of EPAs. The existing civil and criminal law remedies to prevent and address the misuse of EPAs are of limited effect.28 There are various legal, procedural and social reasons why the potential remedies are inadequate to protect elderly persons and/or with a cognitive impairment.29

RECOMMENDATIONS FOR MAJOR REFORM The POA Act has not been the subject of major change since 1984. SALRI concluded that the POA Act is outdated in significant respects, including in relation to the general objectives and principles to apply, witnessing requirements and other formalities, role and responsibilities of the attorney, criteria and assessment of capacity, process for the activation of an EPA, and civil remedies to address misuse.

Key terms are undefined. The POA Act has also arguably failed to reflect such recent changes in society as increasing longevity, the rate of cognitive impairment (especially dementia) and the real need for EPAs, the increasing wealth in modern society, human rights recognition (especially for the elderly and people with a disability), as well as the recognition of patient autonomy and

the profound shift from a ‘paternalistic’ substitute decision making model towards a supported decision making approach.30 The impact of National Disability Insurance Scheme should also be noted.

SALRI therefore concluded that either the POA Act requires major amendment and updating or preferably a new Powers of Attorney Act should be formulated to cover the role and operation of POAs. SALRI also suggested various educational and operational measures to enhance the use and operation of EPAs. Following its extensive consultation and research, and reflecting its underlying principles, SALRI made a number of recommendations for reform to law and practice, including: 1. A number of educational and operational measures to promote and enhance the use and operation of EPAs and the awareness of misuse, especially amongst ‘vulnerable populations’ such as migrant and Aboriginal communities and the disability sector.

2. The gathering of more reliable data and statistics to inform practice in this area.

3. The value of harmonious national EPA laws, but recognising the likely delays in this for the State’s laws and practices regarding EPAs to be as effective as possible.

4. The value of a compulsory EPA register (as is presently under development by the Commonwealth).

The fees for registration should be nominal or very low with certain categories exempt from any fees to avoid discouraging the use of EPAs. 5. A mutual recognition system for interstate EPAs.

6. The POA Act should contain a statement of objectives and general principles, incorporating (with any consequential changes) those in the Advance Care Directives Act 2013 (SA) (ACD Act). These principles highlight the need for, as far as practicable, a supported as opposed to substitute decision making approach.

7. The roles, powers and responsibilities of an attorney should be clearly set out in the POA Act. 8. An improved but straightforward prescribed EPA form should be devised which includes a ‘tick box’ of possible limits on the power of the attorney, an updated witnessing panel, an acknowledgement of acceptance as an attorney panel which requires the attorney to sign and acknowledge that they understand their role and responsibilities. An information booklet should also accompany the prescribed EPA form.

9. The authorised witnesses should remain as present under the Oaths Act 1936 (SA).

10. Clarifying and strengthening the role of the authorised witnesses to an EPA. The witness should confirm that a principal has the apparent capacity to make an EPA and this is made out if they appear to generally understand the nature and effect of the instrument. The authorised witness should certify that the principal signed the EPA freely and voluntarily in the witness’s presence and the principal appears to generally understand the nature and effect of the instrument.31 11. There should be a presumption that the principal has the capacity to make an EPA. July 2021 THE BULLETIN

23

POWER OF ATTORNEY

12. Capacity must be assessed at two time points – to make an EPA and to activate an EPA. The common law definition of capacity32 is incomplete and needs to be updated and a statutory definition of capacity included in the POA Act. This definition for clarity, consistency, modern medical knowledge and to account for fluctuating capacity (or lucid intervals) should draw on the definition of impaired decision making in the ACD Act. 13. The procedure for the activation of an EPA, which becomes effective upon the principal’s incapacity should be set out in the POA Act. This should require a medical practitioner to find that a principal is incapable as defined in the POA Act. 14. An attorney should not be under the age of 18 years; a person who lacks mental capacity; a witness to the EPA; anyone involved in a professional or administrative capacity in the principal’s care and treatment or in the provision of accommodation to the principal; a person who is bankrupt or personally insolvent; or a person convicted of certain offences involving domestic violence or dishonesty (though the full disclosure of such convictions is required by the attorney and the principal is able to approve such persons to act as an attorney if they so explicitly decide).33 15. In light of the cost and inaccessibility of existing civil remedies, a new flexible low-cost civil remedy for the misuse of an EPA is necessary and that remedy should be available through the South Australian Civil and Administrative Appeals Tribunal (SACAT), given its role and expertise (with an ability to refer to the Supreme Court for complex or very large estates or cases giving rise to constitutional issues).

16. SACAT should be empowered to hear and determine claims relating to the misuse of an EPA and disputes involving EPAs and SACAT’s powers should include both interim and incidental orders as well as final determinations.

17. Any interested person should be able to

24 THE BULLETIN July 2021

apply to SACAT for remedial orders to be made against the attorney.

18. The role and value of mediation through SACAT to help deal with at least some disputes.

19. Existing crimes are adequate (though the existing fine of $1000 for failing to keep proper records should be increased) and new offences relating to elder financial abuse and/or the misuse of an EPA are unnecessary.

SALRI acknowledges that there is no legislative silver bullet34 or wholly effective solution to the various concerns over the use and misuse of EPAs and any solution needs to be multifaceted and combine legislative, operational and educational measures.35 SALRI, consistent with the approach of other law reform bodies,36 therefore considered operational and educational changes to complement and support any legislative changes to the role and operation of EPAs. SALRI’s recommendations are now with the State Government for its consideration.

SALRI thanks all who took part in this reference and is grateful for the many insightful comments and submissions it received. SALRI acknowledges the support of the Law Foundation of South Australia Incorporated in providing the funding for SALRI to undertake this important reference.37 B Endnotes 1 Dr David Plater is the Deputy Director of SALRI, Dr Sylvia Villios is a Senior Lecturer at the Adelaide Law School and regular SALRI contributor and Dr Gabrielle Golding is a Lecturer at the Adelaide Law School.

2 Sylvia Villios, David Plater, Gabrielle Golding, Olga Pandos, Bernadette Richards, Anita Brunacci, Natalie Ayoub and Holly Nicholls, Valuable Instrument or the Single Most Abused Legal Document in our Judicial System? A Review of the Role and Operation of Enduring Powers of Attorney in South Australia (South Australian Law Reform Institute, Adelaide, 2020) 3 See Advance Care Directives Act 2013 (SA). SALRI heard of much confusion in the community between POAs and ACDs. 4 Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017) 160.

5 House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament

of Australia, Older People and the Law (Report, September 2007) 70.

6 Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017) 160–1 [5.5]– [5.6].

7 Ibid 22.

8 Dale Bagshaw et al, ‘Financial Abuse of Older People by Family Members: Views and Experiences of Older Australians and their Family Members’ (2013) 66 Australian Social Work 86-103.

9 See, for example, Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016); Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017); Legislative Council Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken (Final Report, September 2018); Joint Committee on Matters Relating to Elder Abuse, Parliament of South Australia, Final Report of the Joint Committee on Matters Relating to Elder Abuse (Final Report, October 2017) 10 Joint Committee on Matters Relating to Elder Abuse, Parliament of South Australia, Final Report of the Joint Committee on Matters Relating to Elder Abuse (Final Report, October 2017); Wendy Lacey et al, Prevalence of Elder Abuse in South Australia (Final Report, University of South Australia, 2016) 11 See generally Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Interim Report (Report, October 2020); Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services (Final Report, Parliamentary Paper No 167, May 2016).

12 See further Kelly Vincent and David Caudrey, Safeguarding Task Force Report (Report, 31 July 2020).

13 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney: Final Report (Final Report, Parliamentary Paper No 352, August 2010) 26–30; Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) xi, xiv, 77, 83–9 [6.16]–[6.42], 99–101 [6.94]–[6.102].

14 South Australian Law Reform Institute, ‘Distinguishing Between the Deserving and the Undeserving’: Family Provision Laws in South Australia (Report No 9, December 2017) 16–17 [2.2.2]–[2.2.3], 18 [2.2.6].

15 Mathis McRae, ‘Policing the Guardians: Combating Guardianship and Power of Attorney Fraud’ (1994) 63(2) FBI Law Enforcement Bulletin 1, 2.

16 See generally Wendy Lacey et al, Prevalence of Elder Abuse in South Australia (Final Report, University of South Australia, Australia, February 2017); Jo Wainer, Peter Darzins and Kei Owada, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, Monash University, 10 May 2010) 29–30.

17 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney: Final Report (Final

POWER OF ATTORNEY

Report, Parliamentary Paper No 352, August 2010) xliv.

18 See further Rae Kaspiew, Rachel Carson and Helen Rhoades, Elder Abuse: Understanding Issues, Frameworks and Responses (Research Report No 35, Australian Institute of Family Studies, 2016) 11.

See also Georgia Lowndes et al, Financial Abuse of Elders: A Review of the Evidence (Report, Monash University, June 2009) 7; Melanie Joosten, Briony Dow and Jenny Blakey, Profile of Elder Abuse in Victoria: Analysis of Data about People Seeking Help from Seniors Rights Victoria (Summary Report, National Ageing Research Institute and Seniors Rights Australia, June 2015) 19; Kelly Purser et al, ‘Alleged Financial Abuse of Those Under an Enduring Power of Attorney: An Exploratory Study’ (2018) 48(4) British Journal of Social Work 887.

19 Jo Wainer, Peter Darzins and Kei Owada, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, Monash University, 10 May 2010) 15.

20 Adam Graycar and Marianne James, ‘Crime and Older Australians: Understanding and Responding to Crime and Older People’ (Conference Paper, Family Futures: Issues in Research and Policy, Australian Institute of Family Studies Conference, Sydney, 24–26 July 2000) 7.

21 See generally Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Interim Report (Report, October 2020) 51; Family and Community Development Committee, Parliament of Victoria, Inquiry into Abuse in Disability Services (Final Report, Parliamentary Paper No 167, May 2016).

22 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report,

Parliamentary Paper No 352, August 2010) 175–176.

23 New South Wales Department of Lands, Review of the Powers of Attorney Act 2003 (Issue Paper, July 2009) 4–5.

24 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report, Parliamentary Paper No 352, August 2010) 175–6.

See also at: 28–9; Jo Wainer, Peter Darzins and Kei Owada, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, Monash University, 10 May 2010) 30.

25 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report, Parliamentary Paper No 352, August 2010) 31.

26 Ibid 23-26.

27 Ibid xli. See also Australian Law Reform Commission, Elder Abuse – A National Legal Response (Report No 131, May 2017) 164 [5.16].

28 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report, Parliamentary Paper No 352, August 2010) 183–192.

29 See Kelly Purser et al, ‘Alleged Financial Abuse of Those Under an Enduring Power of Attorney: An Exploratory Study’ (2018) 48(4) British Journal of Social Work 887; Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report, Parliamentary Paper No 352, August 2010) 183–192; Natalia Wuth, ‘Enduring Powers of Attorney with Limited Remedies: It’s Time to Face the Facts!’ [2013] 7 Elder Law Review 3.

30 NSW Law Reform Commission, Review of the Guardianship Act 1987 (Report No 145, 2018) 19–21 [3.25]–[3.32].

31 Ibid 72.

32 Banks v Goodfellow (1870) LR 5 QB 549; Gibbons v Wright (1949) 38 CLR 313.

33 SALRI was concerned that a blanket prohibition would undermine the principal’s autonomy and could leave some families without eligible attorneys and the prior conviction may also be immaterial to acting as an attorney.

34 Louise Kyle, ‘Out of the Shadows: A Discussion on Law Reform for the Prevention of Financial Abuse of Older People’ [2013] 7 Elder Law Review 1–32.

35 SALRI considered that the question of extending mandatory reporting to financial abuse of vulnerable adults raises complex issues of policy, practice and privacy and should be left for future and further consideration. Similarly, the role and operation of adult safeguarding laws and practice should also be left for future and further consideration.

36 Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney (Final Report, Parliamentary Paper No 352, August 2010); Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016); Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017).

37 The authors also note the valuable contribution to the consultation, research and writing of SALRI’s Report by Associate Professor Bernadette Richards, Olga Pandos, Anita Brunacci, Natalie Ayoub and Holly Nicholls. The input of Dr Mark ‘Matt’ Giancaspro, Professor John Williams, Louise Scarman, Olivia Jay and SALRI’s expert Advisory Board Members is also acknowledged. The authors would especially like to acknowledge the valuable contribution of the students from the Law Reform class at the University of Adelaide.

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CHILD PROTECTION

Reforms to improve outcomes for Aboriginal youth need to be driven by self-determination APRIL LAWRIE, COMMISSIONER FOR ABORIGINAL CHILDREN AND YOUNG PEOPLE

“Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness” - Uluru Statement from the Heart

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s the inaugural Commissioner for Aboriginal Children and Young People in South Australia and as a proud Mirning and Kokatha woman I have reflected many times on this powerful statement about the position that we, as Aboriginal people, find ourselves in.

I have been privileged over the past two and half years to hear the voices of Aboriginal children. When I hear the voices of these children and young people, some of the most marginalised and disadvantaged children in our State, I am continually reminded of the importance of family and community to them. I see the support that endures for them in their families and community despite all deprivations and I feel the strength of Aboriginal ways of knowing and being. This strength bears a simple truth; Aboriginal people know how to overcome the problems that face them and their children.

Ownership of decision making is a true act of self-determination, of pride, of collective self -esteem and without it the struggle to overcome disadvantage is

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destined to be mired in systemic racism (both conscious and unconscious). My very reaI fear is that without giving Aboriginal people a voice, as a Nation we will be destined to repeat the past, shamefully and continually.

There is no question that one of the most egregious acts of our past was decades of forced removal of Aboriginal children from their families; the assimilationist policy that created the blight of the Stolen Generations. The effect of this cruel policy is still being acutely felt by Aboriginal people and has been transmitted as intergenerational trauma to the children of today - and the removals continue.

What I know from my own experience and have heard from children and their families is starkly revealed in the data. In South Australia, one in every 11 Aboriginal children will be removed and placed in out of home care. Tragically, these children comprise only 5% of the population but make up 36.7% of children in care.1 In the recent National Closing the Gap Agreement (2020) it was agreed to reduce

the over-representation of Aboriginal children in care by 45% by 20312 including by the using the priority reforms of formal partnerships and shared decision making.3 Despite this laudable aim, I believe that unless radical approaches are taken to achieve this target the removal rate for Aboriginal children will continue tracking as it is and will double by 2031.4 The Closing the Gap Agreement (CTGA) in conjunction with reforms to the Children and Young People (Safety) Act 2019 ( the Child Safety Act) provide an opportunity for a radical response that can enable Aboriginal children, their families and communities to lead decision making. But these measures alone will not work without a serious investment in early intervention programmes led

by Aboriginal community-controlled organisations (ACCOs).

To achieve the CGTA partnership aims requires a strong strategic implementation plan developed with the lead of Aboriginal people. In child protection the principle central to the establishment of all partnerships and shared decision making and the driver to investment in early intervention is the implementation of the full Aboriginal and Torres Strait Islander Child Placement Principle (the ATSICPP) and its application at the earliest possible stage.

The ATSICPP as currently enacted 5 simply provides for a limited placement hierarchy considered by the Chief Executive, after a guardianship order

CHILD PROTECTION

is made by the Youth Court.6 A family member is the optimum placement, continuing contact with family and community is a final measure7.

The data shows that the current application of the ATSICPP is wanting.

Of all Aboriginal children placed in care last year only 31% were placed with Aboriginal kin.8 This lines up with what I have heard from the extended families of many Aboriginal children. They did not know that their niece, nephew, or grandchild was being removed until it was too late, then they are told attachments have formed or time has run out to make an application for review. They have told me that even contact has been denied or that it is heavily supervised; that the Contact Assessment Review Panel (CARP) process9 lacks transparency and no reasons are provided. (I note that there is no merits review to the SACAT and even so I fail to see why contact is not still a rights-based decision).

I am told that consultation about the application of the ATSICPP between decision makers and a recognised Aboriginal Torres Strait Islander Organisation (RATSIO)10 which should open the pathway to family and community, is done without contacting them. I am told that Family Group Conferences11 which can be called at any time by the Chief Executive, are not used to open up the decision-making process to family and community before guardianship orders are sought or during that process.

Many Aboriginal children are not aware of their rights to seek contact with family post-removal or challenge placement decisions and even if they are, do not exercise them. ALRM is not currently funded to take any matters on behalf of children.

What must be said is that generally Aboriginal children, their families and communities are beset with system fatigue in a system that is not culturally safe. It is a system that applies the ATSICPP to marginalise them from decision making and only applies it at the acute phase, after a child is removed.

It is my very firm belief that ultimately one of the main system failures for Aboriginal children in child protection is not only the poor application of the limited ATSICPP in the Child Safety Act at the acute point of removal, but also the failure to have the full ATSICPP apply and apply properly well before this point. And this means expenditure on intensive family support.

Dysfunction in families can be addressed by allowing extended families and communities to take the lead in decision making before notification and encouraging the family to receive intensive family support from an ACCO. Fear of removal is allayed. Families and communities should also be allowed to lead decision making at the first point of notification/substantiation and develop a plan to ensure the child is not lost from family and community. They should remain

with the child at all subsequent decisions.

This is a true culturally safe response. It is an act of self determination.

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 (the Bill) is currently before the parliament. It seeks to incorporate the full five pillars of the ATSICPP (prevention, partnership, placement, participation, connection) into the Child Safety Act and extend its application to all decisions made under the Act. The placement hierarchy pillar remains applicable to placement decisions after guardianship, but these are informed by the four other pillars that have equal application. Amendments have been proposed to the current Bill that make Family Group Conferences mandatory where decisions are made about Aboriginal children and to include family and community-based mechanisms in decision making. These latter amendments are still being debated.

The Bill and the CTGA reforms provide a foundational opportunity to include Aboriginal children, their families and communities in family led decision (FLDM) making at an early intervention stage, through to removal where that is necessary. Reunification can be considered as part of a family strategy and incorporate Aboriginal attachment theory and Aboriginal child rearing practices.

With the inclusion of all potential kin and community carers at the table there will always be a strong decision-making family link to the child.

July 2021 THE BULLETIN

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CHILD PROTECTION

I have heard from Aboriginal children their families and communities that this is what is needed and that it will only work if there is a proper structured conduit between the child, family and community to enable them to take the lead in decision making.

In 2019 I undertook an extensive consultation across the State. My Annual Report 2019 details the finding that families and communities see the establishment of Aboriginal family care panels (AFCPs) as the mechanism to ensure that family and community can effectively engage in FLDM at all key decision-making points. I have recently taken back a more refined AFCP model to community around the state and received enthusiastic support for the concept. The lynchpin is to have a dedicated community position in an ACCO in each community who can gather the child’s family, extended family and community early to lead decision making. It is possible for a form of these AFCPs to become gazetted RATSIOs12 as the consultation mechanism for the ATSICPP. I urge the SA government to hear

the voices of Aboriginal children and families and take up the reforms needed.

But for structural reform to succeed the need for expenditure on early intensive family intervention is essential. The 2016 Nyland Report strongly recommended this approach.13 Tragically it has not been heeded. Current expenditure on family support services is only 8.7 % of DCP budget and expenditure on ACCOs will only increase to 7% of over two years.14 This is a start but is nowhere near enough.

The SA Commissioner for Aboriginal Children and Young People is soon to be given strong powers to inquire into system failures that affect Aboriginal children and young people.15 I hope to be the first Aboriginal Commissioner in Australia to receive these powers. I have listened and I have heard the voice for reform in a child protection system that is failing our Aboriginal children. I have seen “the structural nature of the problem” and I am looking for change. B Endnotes 1 Page 2 Snapshot Report of South Australian Aboriginal Children and Young People in Care and

Detention from the Report on Government Services.

Guardian for Children and Young People (SA) May 2021 (Snapshot Report) 2 https://www.closingthegap.gov.au/closing-gaptargets-and-outcome Outcome 12 3 https://www.closingthegap.gov.au/nationalagreement/national-agreement-closing-the-gap 4 Table 16A.2 Report on Government Services 2021 (ROGS) 5 Section 12 Children and Young People (Safety) Act 2019 (Child Safety Act) 6 Although the Youth Court does not have power to make a placement decision, the ATSICPP may be considered by when making a guardianship order. Section 12(7) Child Safety Act. 7 Section 12 (6) Child Safety Act 8 Table 16A.22 ROGS 2021 9 Section 94 Child Safety Act 10 Section 12(3)(c) Child Safety Act 11 Part 2 Child Safety Act 12 Pursuant to section 12(7) Child Safety Act 13 Xiv Summary CHILD PROTECTION SYSTEMS ROYAL COMMISSION REPORT The Hon Margaret Nyland AM Commissioner August 2016 14 Page 17 Family Matters Report Card 2020.

Family Matters Report 2020.(SNAICC) https:// www.familymatters.org.au/wp-content/ uploads/2020/11/FamilyMattersReport2020_ LR.pdf 15 Children and Young People (Advocacy and Oversight Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Bill 2020

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OPINION

The State of Play – Aboriginal Youth in South Australia Today JONATHON BROHIER, MEMBER OF THE ABORIGINAL ISSUES COMMITTEE

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recent report by the Office of Guardian for Children and Young People has recently shed some light on data published in the Productivity Commission’s Report on Government Services 2021(‘the Report”.)

The Report provides alarming insight into statistics concerning Aboriginal young people compared to non-Aboriginal young people in South Australia.

Aboriginal children are disproportionately represented, both in the criminal justice system and in the child protection system. Apart from the alarming degree of disproportional overrepresentation, the treatment of Aboriginal children, in these government systems also disclose a deep crisis and fundamental inability to respond appropriately to the personal, cultural, and therapeutic needs of young Aboriginal people. Such shortcomings were tragically illustrated in the death of a teenage Aboriginal girl Ms H Singh.

The findings of the Deputy State Coroner into her death were handed down on 14 November 2019. The Deputy Coroner at paragraph 16.14 stated “In this case, a 14-year-old Aboriginal child died alone, without ever knowing her own culture and community. She languished in Emergency Care without the assistance of a dedicated team within Families SA to focus on Aboriginal children in State care and the Aboriginal Child Placement Principle. She died without the chance to be supported in her time of need by a loving foster family and without access to skilled therapeutic support. In my view, it is a deeply shameful situation.”1

The Report outlines the current state of play in South Australia today.

Aboriginal children and young people comprise five percent (5%) of our youth today in South Australia i.e., young people aged between 0-17 in South Australia.

The Report firstly considered Aboriginal children and young people in care. Aboriginal young people comprise 37% of youth currently in receipt of services such as protective intervention services, family support services, intensive family support services and care services such as out-of-home care. There is a concerning decline at play in regards to Aboriginal youth in care.

Between 2015 and 2016 and compared to 2019 and 2020 the rate of Aboriginal youth in receipt of care services per 1000 children increased from 62.1 to 84.5 compared to 6 to 7.4 for non-Aboriginal youth.

There is an overrepresentation of Aboriginal youth in child protection systems. The number of Aboriginal children in out of home care is estimated to double in the next 10 years.

We need to close the gap because a significant proportion of our Aboriginal Youth are subject to risk factors that are currently requiring disproportionate State intervention.

The report considered Youth Justice Services. Again, there is an overrepresentation of Aboriginal youth. Of the average daily population of youth in detention at any day, the rate of Aboriginal children and young people in detention in South Australia is 22.7 times higher than non-Aboriginal children.

The Report has some good news however with regards to detention. The rate of Aboriginal children and young people in detention per 10,000 young people in South Australia declined to its lowest rate in five years. The average daily number of Aboriginal youth in detention decreased to 14 being approximately half that of the daily rate of 31 in 2015/2016.

If this trend continues the Closing the Gap target of a 30% reduction in the representation of Aboriginal children and young people in detention by 2031 will be met and arguably South Australia should consider further revised targets.

We need to close the gap by breaking the cycle of abuse into which Aboriginal children and young people become entrapped and then in turn perpetuate as a response to the abuse and risk factors to which they are exposed. There is expert opinion supporting the need for a welfarebased approach for dealing with children who display antisocial behaviours, as these may be the product of compounding levels of disadvantage which the criminal justice system is not equipped to deal with. Juvenile detention compromises Indigeneity, removing children from family, culture and community.

Undiagnosed disabilities, which can dampen a child’s abstract reasoning skills, are best addressed through a therapeutic approach which detention cannot offer. B

Endnotes 1 www.courts. sa. gov.au/coroner/ findings/2019/H Singh, at page 102 -3.

July 2021 THE BULLETIN

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FEATURE

IT’S ABOUT TIME: RE-THINKING THE TRADIONAL TIME-BILLING MODEL OF FIRMS SARAH BEHENNA

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ime capturing: A mystical and ancient art adopted by lawyers worldwide to identify and record six-minute intervals of their working day, for eventual attribution on a client’s bill. Generally speaking, it is a displeasing process for all involved.

And one which provides absolutely no indication of value.

Lawyers are essentially service providers who are in the business of selling time. This creates a continued and repetitive conflict between the desire for a practitioner to work quickly, to display their efficiency, but to work slowly because they charge by the hour.

Time-based billing has dominated Australian legal practice since the 1970s, often to the ire of time-recorders themselves and, of course, clients. But a growing number of sophisticated clients, and younger generations, no longer wish to subscribe to the out-dated time-costing method of recording and billing.

Everyone involved in the charade knows all too well that billing by time is structured for lawyers to charge clients, with absolutely no incentive for being productive. So why exactly is it that we persist with this model?

Innovative law firms across Australia are making the revolutionary shift towards non-time-based pricing. The momentum generated has the potential to be hugely beneficial to the industry, and to clients.

David Wells is one such innovator.

Wells, 60, was managing principal of Melbourne legal practice Moores from 2007 until 2020. Moores differentiates itself in an overcrowded market of legal service providers by utilising agreed pricing. This pricing mechanism allows clients to know exactly what they are

30 THE BULLETIN July 2021

getting and exactly what it will cost. There are no estimates. No ranges. No hourly rates. No time recording.

Before they talk to clients about price, Moores takes the time to understand their clients’ needs. Once they understand their clients’ situation, they prepare a proposal and provide a fixed-fee cost, often with a variety of three options for scope and price to choose from. Clients are afforded price certainty, with no billing surprises.

This is essentially in line with most other services we receive in the course of our day-to-day lives: building and construction, health, telecommunications, beauty, education, the list goes on.

Wells was at the helm when Moores transitioned to agreed pricing in 2013.

He believes that time-based costing hinders practitioners from understanding the value they create and what they are actually worth. “It inhibits creativity, innovation, finding out what clients really want and the capacity to delight clients.”

Wells explains that time-costing inhibits sustainable relationships. “Irrespective of the outcome, clients are always surprised by the bill based on time. They may have agreed the rate, but a rate is not a price.

They quibble or complain about the time or about who or how many did the work or the necessity for the item. It breeds dissatisfaction and undermines trust and sustainability.”

Wells is also one of the Directors of Innovim Group, a company established in 2017 with a shared view of wanting to move professions away from billing by time to pricing up front.

Innovim understands that clients care about outcomes, not inputs. “They don’t care about how long the professional took

or how much the professional was sweating the small stuff, unless the client is paying by the hour, in which case, the client hates it.”

Wells explains that solutions which deliver client objectives can often be achieved expeditiously, without wasting the time of clients and team members and consuming resources. “Those sorts of outcomes enable clients to sleep at night. This builds trust. If the client is the right fit, it leads to repeat work, referrals and long-term relationships,” he says.

When asked whether certain practice areas of law lend themselves more easily to value-based pricing, without skipping a beat Wells replies: “No. Show me your expertise and how it is relevant to a customer and I will show you how to price for value.”

This begs the question: why aren’t there more law firms adopting these alternative pricing models?

One possible reason law firms have been resistant to change is because lawyers are conservative by nature. “There are risks with any significant change exercise, and introducing or changing a pricing model is such an exercise. Conservative people will be deterred by the prospect of something that involves risk,” Wells explains.

There is also a sense of fear within some practices where the key decision makers have a vested interest in retaining the status quo until they retire.

Additionally, some owners of professional practices think that if they don’t record time, they won’t know what their costs are. “The proposition that time is a cost is one of the most ignorant statements I have ever encountered,” muses Wells.

“Professionals who cling to that notion

FEATURE

don’t deserve to be in business and won’t be for very long anyway.”

Additionally, Wells points out that many lawyers actually don’t have a clear understanding of the value they create for clients. Without knowing this, it is difficult to then convince clients about a price based on value when you aren’t aware of what clients actually value or don’t believe that you deliver that value.

CULTURE Transitioning a firm from time-based billing to agreed pricing is no easy feat.

Wells describes that output (actual results, not time on a timesheet) and value will be in direct relationship to the quality of people within a team and the number of

them. “You may have some high quality people but if you can’t attract more, you can’t scale and those you have may depart.”

Strong market leaders place culture at the top of their structural requirements, explains Wells. “Without a culture that your good people are aligned to, you can’t keep them and you can’t recruit others. Putting it another way: culture drives people and people drive outputs and create value.”

Wells’ advice for Adelaide firms looking to experiment in this area is to take a risk: “Try something innovative. Even if it doesn’t pay off first time, the world will not cave in. All that will happen is that your people will see you having a go and applaud. And you will learn valuable stuff

in the process that will improve prospects of success with the next experiment.”

KIT LEGAL One such firm who is experimenting with and re-defining law is Kit Legal. Kit is a speciality financial services law firm. They embrace innovation and, amongst other things, have turned time-costing on its head.

They are a 100% subscription-based firm. They provide clients with unlimited legal support, within the frame work of what they do, for a monthly subscription fee. This means they have no time concept at all. Like Moores, they measure output not input and they are driven by genuinely actually wanting to help as many people as they can.

Sarah Behenna is a freelance journalist and former lawyer.

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FEATURE

Because 100% of their clients are engaged on an on-going basis, it means the firm has a steady flow of work without the exhausting peaks and troughs of traditional transaction-based law.

When Kit was established in 2017, lawyer Catherine Evans, 40, and marketing guru Meghann Cannon, 40, found it incredibly rewarding to start a law firm from scratch. They really valued being able to have a clean slate to honestly determine what exactly they wanted their business to be. There was no existing legacy that they had to deal with. They started by reimagining all the unwritten rules lawyers usually find themselves operating under, like age = expertise, input should be valued over output and time = value. What followed was quite remarkable.

QUOTING, TIME-RECORDING AND INVOICING Evans is incredulous when she looks back at her time as a Partner in a traditional mid-tier private practice law firm recalling how much time was spent quoting work, time-costing, estimating (and then updating estimates), writing-off junior solicitors’ time and so on. Invoicing and billing would take up days of her practice each month.

“The time in recording the hours, invoicing the hours, all of that, that was such a waste. I just used to think: this is days of my life wasted. With no benefit to anyone. Now we just don’t have any of that. Now we never even have conversations with clients about fees, apart from when we very first speak to them.”

Cannon adds to this, from an operational perspective: “Everyone pays the same every month. Probably 75% of them [clients] are on a direct debit arrangement, so I am never chasing invoices. It literally comes in, you reconcile it and it goes out. For odd piece of fixedfee work, because they are already set up on our direct debit platform, we just do an ad-hoc direct-debit that they’ve already agreed to, so from a lawyer’s point of view it saves a lot of time. From an operational view it saves me a lot of time as well because I’m not chasing invoices, I’m not generating one-off invoices.”

In addition to ease of invoicing, the business is also very easily able to forecast:

32 THE BULLETIN July 2021

“It makes it really easy to make decisions about expenditure and staffing and resourcing because we know what our base line is going to be,” explains Cannon.

Evans and Cannon love having had the opportunity to create totally different relationships with clients through their subscription model. “You’re not talking about fees anymore. You’re just talking about what they need, how you can help them,” Evans describes.

FLEXIBLE WORK The unique subscription model they have created allows flexibility and certainty, not only for their clients, but also for their employees.

No-one at Kit is there to work an 80-hour week and earn lots of money.

That is just not their motivation. “We want lifestyles. We want to look after our kids.

We want to have hobbies. We want to go on holidays. We don’t think being a good lawyer means you have to sacrifice all that stuff,” Evans describes.

Before Kit existed, the competing desires to be a good lawyer and a good parent used to really frustrate Evans.

“I don’t understand why these two are so at odds with each other and why the time I spend is somehow linked to being a good lawyer. Because in my view it’s the opposite. There is no incentive in private practice to be efficient at what you do. You are causing detriment to yourself and the firm [when you’re efficient]. It’s that fine balance: you want to be efficient enough that the client doesn’t go crazy, but take long enough that you earn lots of money.”

Evans continues: “I think that the hourly based model is broken and does not work for women in particular. That is my fundamental view.”

So, they set about creating this pricing model to better align with their values.

Their business is committed to innovation and regularly experiments with staff initiatives. They have implemented a workplace wellbeing policy and offer the option to apply for extra (paid!) annual leave.

One of their most successful innovations has been the introduction of “care-taker mode” in school holiday periods. This mode of operation means that during that period they have no

meetings: “We deal with stuff that has to get done but you can do that from home, you can do that from Noosa, you can do that from anywhere. But because our billings aren’t actually tied to working hours, our cash flow is the same. People can have time-off to spend with their kids in the school holidays and we can be just as efficient and effective.”

Kit has cultivated a team of people that are on board with how they think and who subscribe to the culture Kit has created. “But a lot of lawyers would not fit this environment and they are freaked out by the flexibility, by the not knowing what my target is each day,” comments Evans. It takes a moment for new lawyers to get their headsexactly how they actually demonstrate they're a valuable resource.

This is a fascinating shift in mindset.

Their subscription model wouldn’t work for all firms, Evans concedes, as the technology they utilise is essential to the model, as is the nature of the recurring type work that they do. However, Evans just doesn’t understand how all lawyers can’t scope and price a piece of legal work, no matter how big it is. This could mean value-based pricing or fixed-fee work.

Evans describes that there is a growing demographic of customers that now expect cost transparency when they engage a lawyer in any market. “I think the next generation of people instructing lawyers will want more certainty around fees. They can assess the value of this work now.

They are educated enough themselves.

They have access to so much information.

It’s not this hidden art anymore,” she explains.

Innovation, when it comes to costing, requires lawyers to move away from thinking what’s billable, and instead think about what’s valuable. Change in this area requires a strong culture and a shift in mindset.

The continuation of time-costing within the profession has the potential to adversely affect law firm culture and the quality of life for the lawyers working within those constructs. It also has the propensity to greatly inhibit client relationships.

Law firms that innovate could potentially enjoy a more sustainable future and a more ethical existence. B

WELLBEING & RESILIENCE

Dealing with vicarious Trauma SARAH EL SAYED ASSOCIATE, JONES HARLEY TOOLE

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he Society’s Wellbeing and Resilience Committee chaired a seminar on Vicarious Trauma on Tuesday 16 March, 2021. The seminar was presented by Rebecca Abbott, social worker and founding director of Abbott Witness Services and was aimed at raising awareness of vicarious trauma in the legal profession, encouraging self-reflection and fostering a supportive work environment and culture.

Whilst we might immediately think of ‘first responders’ such as emergency services workers when we think of vicarious trauma, it has come to be recognised that other professions, including the legal profession, can also be exposed and as a consequence may need support. Rebecca explored the concept of vicarious trauma and the effect this has on our professional and personal lives.

Vicarious trauma can be described as a change in a person as a result of working with clients’ traumatic events. As we know, trauma can manifest rapidly or it can accumulate over time - and it can change the way we perceive the world and the people around us. The nature of our profession can often expose us both directly and indirectly to trauma through the traumatic events of our clients’ lives, such as domestic violence or abuse.

Given the nature of our role as lawyers, and in particular those who practise in the criminal or family law jurisdictions, we are at a heightened risk of exposure to vicarious trauma. In addition to the nature of our role, there are other factors which are likely to increase one’s risk of exposure to vicarious trauma. These include prior traumatic experiences, working as a sole practitioner, difficulty expressing feelings, a lack of training and/or supervision in your job and lack of effective and supportive processes for discussing traumatic content.

Rebecca highlighted the importance

of self-awareness and the role this plays in maintaining your mental health and wellbeing in practice. It is important to be able to identify the signs of vicarious trauma so that you can detect it in yourself and seek help when needed. Some signs of vicarious trauma include the encroachment of client and work demands on personal time, becoming pessimistic or developing an altered view of the world, becoming demoralised and questioning your professional effectiveness/competence, and self-medicating and/or substance abuse.

It is good practice for your mental health and wellbeing to regularly take the time to pause, reflect and identify whether you have reached your body’s stress limit. One way to conceptualise your body’s limit is to imagine you have a bucket, which represents you and each of your individual stressors are represented by water. Each time a stressful event occurs in your life, water is poured into the bucket.

If too much water is poured into the

bucket, it will overflow leaving you feeling overwhelmed. By taking the time to pause and reflect on your stress load you will be able to identify when your bucket may be getting full so that you can take some time out for yourself and prevent the onset of burnout.

Rebecca concluded the webinar with a great tip to extend our awareness of our stress bucket to our friends or colleagues.

If you notice that a friend or colleague is presenting signs that they are not okay or that their bucket may be full, buy them a coffee, place it on their desk and let them know you are there for them. This simple gesture will let them know you have noticed and you are there for them in solidarity and support.

The Society offers practitioner support through the LawCare service, support groups and resource hubs. See https:// www.lawsocietysa.asn.au/Public/Lawyers/ Practitioner_Support/Menu.aspx for more information.

July 2021 THE BULLETIN

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ORAL HISTORIES

Barrister shapes history of profession LINDY MCNAMARA

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losely related to the Barr Smith and Elders families, Christopher Legoe AO QC has a strong connection to the early history of South Australia. He also helped shape the history of the legal profession in the State when he took the bold step to become the first person to officially practise only as a barrister.

It was the early 1950s when Mr Legoe returned from England after completing law studies at the University of Cambridge. He was admitted to the English Bar in 1951 and after arriving back in South Australia took up a job as an Associate to Sir Geoffrey Reed, one of the senior Judges on the Supreme Court.

“He (Reed) had gone out on his own in the 1930s and did only court work, and he was in effect really the first one to practise as a barrister only in South Australia. But it’s never been recognised,” Mr Legoe explained during an interview as part of the Law Foundation’s Oral History project.

“That year Sir Geoffrey Reed and I went on circuit, I got on very well with him and he encouraged me to think about doing court work. He didn’t specifically say, ‘Go out on your own’, because nobody ever thought of it in those days.”

However, after much consideration, discussion and consultation with family members, in 1955 Mr Legoe wrote a letter to the Law Society President Frank Piper QC indicating he wanted to set up practise solely as a barrister.

“My first brief was an all-day sucker! I had a little room. Bob Fisher’s father was a friend of my father, and Bob said, ‘Look, we’ve got a room on the third floor of Epworth Building that we can rent to you’.

“I didn’t have many law books or anything, but I started there, and Bob used to send me a few small briefs up to the Stirling Court – he lived in the Hills, and he’d get a few small things.

“And, then the Bednalls – Maurice Bednall, who’s the father, and David Bednall, the son – they were on the

34 THE BULLETIN July 2021

Chris Legoe

second floor I think of Epworth, and they started briefing me. And, then a few other small solicitors started briefing afterwards.”

Mr Legoe’s move was the hot topic of conversation in legal circles, so much so that in 1959 then Law Society President, David Hogarth, called a meeting to allow Members to debate the merits of a divided profession.

“I was still the only one who was practising only as a barrister. David called a meeting of the Law Society, a general meeting for discussion as to whether the profession should divide, separately, like in New South Wales and Queensland, by Act of Parliament.

“Victoria has never had an Act of Parliament separating it professionally, they did it voluntarily way back in the 1880s,

ORAL HISTORIES

‘90s or something – I don’t remember, whenever it was.

“Anyway, there was a lot of discussion and people like the late Bob Irwin, who was a very senior solicitor – he didn’t go to court – was dead against it, spoke vehemently of the stupidity of this, and how it was quite wrong for South Australia.

“Even Len King, who was my Chief Justice – I got very friendly with Len when I was at the Court of course. Len was in Wallman and Partners in those days, and he did all their court work, but he was only a junior. Len was a few years older than myself, not much, I suppose he was five years older. But he told me when I was at the Court, he said, ‘You know Chris, I voted against dividing the profession, because I thought it could never become a reality’. And, he said, ‘You know, you were right, and you were the one who did it’.

“Len was very generous about it, and when I retired, he made very generous remarks about me. But, anyway, that’s just an example of the sort of discussion.

Then there was a couple of others. I remember the late Frank Potter, who was a senior solicitor, spoke graciously in saying, ‘Well look, we have now reached the stage Queensland, New South Wales and Victoria all have separate bars’. He didn’t put in those words, but that’s in effect what he said.”

“Howard Zelling, of course, voted in favour, and he later joined us, and Jack Elliott, who was a busy criminal lawyer, he was the first one to join me, seven years after I had elected. And, as I said, those seven years I was longer in the wilderness than John the Baptist, which was my motto.”

In 1962 Jack Elliott then Robin Millhouse and Howard Zelling joined the Bar and in 1964 the South Australian Bar Association was formed.

The work kept coming in for Mr Legoe, and one major case was the Stuart Royal Commission.

“I was junior counsel to Jim Brazel.

That was certainly a big step for me, and I must say I learnt a lot from that. There’s books been written about it, and it still goes on, the controversy about the Stuart case.”

In 1972 Mr Legoe was appointed a Queen’s Counsel and six years later he took a seat on the Supreme Court bench.

“I was arguing a case before the Full Court. David Hogarth was the acting Chief Justice. John Bray, the Chief Justice was away in Greece on sick leave, and I can’t remember who the other two members of the bench were, but during an adjournment, a lunch adjournment or something, David Hogarth called me into chambers, and I thought, oh dear me, have I done something wrong with the argument or something? And, he said, ‘The Attorney General wants to speak to you, will you go down and see him?”

“Now, the Attorney General at the time was – he was a young man, and it was the Don Dunstan Government at the time. I went down to see him, and he said, ‘We want to appoint you to the Supreme Court’. And, I said, ‘Why on earth would you want to do that?”

“I was very happy, getting lots of work, and had two young daughters at that stage.

He said, ‘Oh, we regard you as a small L liberal’. And I said, ‘What does that mean?’ Because I’d never taken any part in politics, I’d never joined a political party, I’d always kept right away from politics and still do, although we get it forced upon us of course.”

Accepting the appointment, one of the first cases he heard was about an injunction to stop somebody keeping bees next door to their house at Gawler.

“I had been an amateur beekeeper for many years, that’s one of my great interests,” Mr Legoe said.

“Ever since I was at school, I’d been interested in apis mellifera mellifera – more particularly in the Kangaroo Island breed, apis mellifera ligustica, the Ligurian bee – and I said to the barristers when

it came on, ‘Look, I’m a beekeeper, I perhaps shouldn’t be hearing this.”

“And, the one who was for the plaintiff asking for the injunction said, ‘Oh, it’s good to have somebody who knows something about bees. No, we don’t object.”

“So, I went ahead and I wrote a long judgment on it, it’s been reported…

Stormer was the name of the plaintiff. I’m afraid I gave judgment for the beekeeper. I refused the injunction.”

Throughout his career as a barrister, Mr Legoe said he always thought it was important to be a Member of the Law Society. In 1969 he was elected to the Society’s Council and later Executive, and also served as Chair of the Property Committee.

“In South Australia, you are admitted as a barrister, solicitor, proctor and attorney at law. The disciplinary committee of the legal profession in South Australia is the Law Society, so they have discipline over everyone. The Bar admittedly now is an incorporated body, but it’s an incorporated body, in my view, within the Law Society.”

“I always took the view, after I left to practise as a barrister, that we are working together. We’re practising as barristers, but we were receiving our work from solicitors.

We’ve got to help them, they help us.”

“We’re all in the same profession, we were all trying to achieve the same thing, which if you like to put it in one word, it’s justice or fairness, or whatever. And, I think it’d be a pity if either the bar or the solicitors or the Law Society rather, regarded one another as being separate.”

“I’ve quite strong feelings on that as a professional. I think it’s unprofessional if we don’t work and give each other help and assistance and advice as to how we go about our practice.”

To read more about Mr Legoe’s outstanding career as a barrister and judge, his love for South Australian history, art, and his fight to save Carrick Hill, go to www.lawsocietysa.asn.au. B July 2021 THE BULLETIN

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RISK WATCH

Practitioners acting as Attorneys and substitute decision makers – professional indemnity issues GRANT FEARY, ACTING DIRECTOR, LAW CLAIMS

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he Advance Care Directives Act 2013 (SA) (the ACD Act) was proclaimed on 1 July 2014. The objects of the ACD Act include enabling competent adults to give directions (“ACDs”) about their future health care, residential and accommodation arrangements and personal affairs and to express their wishes and values about those matters including by specifying outcomes or interventions that they wish to avoid (s.

9 ACD Act).

In the seven years that the ACD Act has been in operation, I think it is fair to say that there has been something of a “love-hate” relationship between the profession and the ACD Act. Some of the requirements of the ACD Act (e.g. with respect to the order of signing) have caused real practical issues but the good sense in having documents such as ACDs gain more currency must be of benefit.

Queries have arisen from within the profession as to whether or not practitioners should take on obligations as a Substitute Decision Maker (“SDM”) pursuant to an ACD. These queries have given rise to a number of different views – some practitioners have said that there is a need for practitioners to be able to take on such obligations, especially in relation to clients who may not have appropriate family members to appoint as SDM. Other practitioners however have said that they would not agree to any such appointment because of the inherent likelihood that any decisions made would lead to disputation.

This has led to the additional query as to whether, in the case of a practitioner taking on obligations under an ACD, the Professional Indemnity Insurance Scheme (“the Scheme”) would apply to those obligations. Whilst it is not possible to be definitive about the coverage provided by the Scheme or to bind Underwriters in the absence of a specific claim scenario,

36 THE BULLETIN July 2021

the definition of “Legal Practice” contained in the Scheme Documents relevantly provides that “Legal Practice” means “the provision of such legal services as are usually provided by a legal practitioner in private practice in Australia, while holding a current practicing certificate… including the acceptance of obligations as trustee, executor, administrator [or] attorney-under-power…”

It will be immediately apparent that the acceptance of obligations pursuant to a power of attorney are specifically included. No specific mention is made of ACDs. The question therefore arises are appointments as an SDM under an ACD a “legal service” usually provided by a legal practitioner in private practice in Australia.

Clearly up until 1 July 2014 the answer must have been “No” because ACDs did not exist.

Opinions have been expressed that there are some important differences in the qualities of the obligations taken on by an SDM pursuant to an ACD as opposed to those taken on by the attorney pursuant to a power of attorney.

Without descending into too much detail, under a power of attorney the attorney is essentially a discretionary agent with fiduciary responsibilities. Attorneys under Power generally deal with legal and financial issues.

As we have seen, the focus of ACD’s is on personal affairs, wishes, values, future health care and residential and accommodation arrangements.1 A view has been expressed by an experienced Counsel in this area that decisions about health care, residential arrangements and personal affairs should be regarded as falling outside the scope of “Legal Practice”. This would mean that acceptance of obligations as an SDM pursuant to an ACD would not be covered by the PII Scheme.

There may be a grey area though. This is because “Accommodation arrangements” which might be the subject of an ACD where those arrangements for example involve the sale of the family home to fund a place in residential care or a retirement village, overlap with such arrangements which would, if performed pursuant to a power of attorney, be within the scope of “Legal Practice”.

The question arises as to whether there is a groundswell of opinion within the profession that obligations under an ACD should be within the scope of “Legal Practice”? Ultimately any decision as to any change in the scope of the PII Scheme are matters to be debated by the Society Lawguard Management Pty Ltd, Underwriters and the Attorney-General, after considering all relevant issues. There may of course be consequences in respect of the premium payable to Underwriters if it is seen that the change expands Underwriters’ liability.

At the moment, however, given the indication that obligations under an ACD do not fall within the scope of “Legal Practice”, practitioners should not accept appointments as SDMs under ACDs and should limit their acceptance of obligations to powers of attorney.

It would be useful however if practitioners could provide any views they might have as to these matters to me – gfeary@lawclaims.com.au – so that we can gauge whether or not any change should be considered. B

Endnotes 1 It is noted that ACDs in effect replaced Medical Powers of Attorney which were obviously not limited to legal and financial matters.

PROFESSIONAL ETHICS

Guidance on reimbursements for disbursements ETHICS & PRACTICE UNIT

E

thics and Practice has taken the opportunity to clarify the question of when it is appropriate for a practitioner to be reimbursed for a disbursement paid from the office account.

Disbursements are defined as those payments which have been made in pursuance of the professional duty undertaken by the solicitor which he or she is bound to perform, or have been sanctioned as professional payments by the general practice and custom of the profession.1 The term refers to money which, for the purposes of the retainer or proceeding, has been actually paid out to other people, such as witnesses, counsel, professional advisers, and so can be distinguished from “costs” strictly speaking, which cover remuneration for the exercise of professional legal skill by a lawyer.2 Those payments made by a practitioner on behalf of a client which the practitioner is not obliged to pay, such as payment for stamp duty or LTO fees, while not true disbursements, are often classed by commentators as “nonprofessional” disbursements as compared with the “professional” disbursements referred to above.

While the above distinction may have relevance in some regards (eg in whether GST may be payable), the principle in relation to reimbursement does not rely on any difference in categorisation. At all times money entrusted to a legal practice in the course of or in connection with the provision of legal services to which the practice is not wholly entitled is trust money (Schedule 2 Legal Practitioners Act 1981).

In the case of a disbursement, whether professional or non-professional, a practitioner is not entitled to be reimbursed until the disbursement has been paid and the practice has issued a request for payment, (e.g., disbursement invoice) or a written notice of withdrawal

(Legal Practitioners Regulations 45(3)(a) (iii) and 45 (3)(b).) Money is taken to have been paid by the law practice when the relevant account of the practice has been debited (Regulation 45(6)).

The critical issue is when payment occurs such that the practitioner is entitled to be reimbursed.

Until the practitioner has paid for the disbursement in such a way as to have fully extinguished the liability incurred by him or her for that disbursement, he or she is not entitled to be reimbursed. “Payment” may take the form of cash, electronic funds transfer, credit/debit card, cheque or authority for electronic payment (such as for RevenueSA Online).

Payment by cash or electronic funds transfer immediately extinguishes the liability of the practitioner, but payment by cheque or authority does no more than merely create a further liability that is discharged at a later date.

A cheque drawn on a practitioner’s office account is not discharged until it is successfully presented (section 58 Cheques and Payment Orders Act CTH (1986).

Similarly, the provision of an authority to withdraw funds electronically from the practitioner’s account does not extinguish the liability until the funds are actually withdrawn. You should not presume that an electronic payment has been successful just because it has been processed. We recommend that you verify that the payment has been made to the correct payee and debit has appeared on the bank statement before appropriating the reimbursement. Until that occurs, there is the potential in each case that sufficient funds may not be available for a successful discharge of that liability.

In the case of a credit/debit card payment, reimbursement can only be actioned when a payment receipt or acknowledgement has been received.

If the law practice credit/debit card attracts membership benefits or rewards

these must be disclosed in the retainer.

In the absence of written disclosure, a conflict concerning a solicitor’s own interests will arise (see Rule 12 of the Australian Solicitors Conduct Rules).

A practitioner who maintains an account with a supplier of services that may or may not be specifically billed as disbursements (eg Telstra) may not be reimbursed for a billed disbursement until the account that includes the particular client’s disbursement has been paid.

However, where those services are not to be specifically billed as disbursements, but are essentially the costs of running a practice, the practitioner has a personal liability to the supplier unrelated to any particular client. Those costs may be included in the practitioner’s costs (eg as a component of his or her established hourly rate) and, in those circumstances, the practitioner is not required to have paid the accounts for those services prior to receiving payment or reimbursement for costs.

Reimbursement by a practitioner prior to being wholly entitled to that money is not only a breach of the Legal Practitioners Act 1981 and Legal Practitioners Regulations 2014 but also a breach of the practitioner’s fiduciary duty not to make a profit (apart from a proper professional fee) from the solicitor/client relationship. B

Endnotes 1 https://advance.lexis.com/document/?pd mfid=1201008&crid=dc88a084-4f8a-4a04ba8f-35b7b344935a&pddocfullpath=%2Fsh ared%2Fdocument%2Fanalytical-materialsau%2Furn%3AcontentItem%3A59M3-1FX1F5KY-B0RW-00000-00&pddocid=urn%3Acon tentItem%3A59M3-1FX1-F5KY-B0RW-0000000&pdcontentcomponentid=120761&pdteaserk ey=sr0&pdicsfeatureid=1517127&pditab=allpo ds&ecomp=xpqxk&earg=sr0&prid=b55c8771713c-4634-8a93-7dcd20d79bbc 2 see LexisNexis Halsbury’s Laws of Australia (online at 22 October 2019) Practice and Procedure, ‘7 Judgment and Execution’ [325-9405].

July 2021 THE BULLETIN

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TAX FILES

Allocation of professional firm profits: Joint professional bodies have say on draft practical compliance guideline.

I

n the Tax Files column of the Bulletin for May 2021 Andrew Shaw explained the effect of ATO draft PCG 2021/D2.

In response to this draft, the Joint bodies of the Business Law Section of the Law Council of Australia, together with CPA Australia, Chartered Accountants Australia and New Zealand, Institute of Public Accountants, and The Tax Institute put to the ATO the following general collective views on the draft PCG, to be complemented with more specific, separate submissions from the respective associations, member firms and members.

The submission reads as follows: “The Joint Bodies support the ATO’s efforts to address artificial and contrived arrangements that seek to inappropriately alter taxpayers’ tax liabilities.

However, in lending that support, we reject three foundational propositions that, explicitly or implicitly, underpin the draft PCG: 1. There is no general principle of taxation law dealing with, or proscribing, the so-called “alienation of income”. That is, absent specific statutory provisions such as the personal services income or general anti-avoidance rules, there is no general principle which brings about the result that the income or profit beneficially derived by a partnership, company or trustee of a trust, that has arisen from the personal exertion or skilled labour of an individual, can be regarded as the profit or income of that individual. It does not matter how involved such an individual may be in the activities from which the income is derived by the entity.

2. In the context of the ATO proposing a compliance approach to the taxation of income or profits from the provision of services, no proper justification for singling out the services provided by “professional firms” has been provided. It cannot be rationally argued that the income derived by an

38 THE BULLETIN July 2021

accounting or law firm is so different to the income derived by, say, a plumbing or management consulting business to permit the ATO to apply compliance resources differently.

3. There is no general principle of taxation law, and there ought not be a general expectation in administering those laws, that the individual “owner” of a business receives any particular amount of compensation or remuneration for the individual’s “efforts, labour and application of skills”. That is, absent specific statutory provisions, an “owner” of a business can decide whether to receive nothing, a little, a lot or something in between and be taxed accordingly.

The draft PCG is primarily a guide to assess the likelihood of the ATO reviewing the affairs of an individual professional practitioner (IPP) and his/ her firm with a view to applying the general anti-avoidance provisions in the Income Tax Assessment Act 1936 (Part IVA).

However, we observe that the exclusionary “Gateways” and risk assessment framework are not necessarily constructed to align with Part IVA factors. Rather, the draft PCG uses broad, unadjusted measures as proxies for Part IVA risk. As a result, the risk scores reflect neither the nuance or specificity required to properly assess the level of risk. Nor does the draft PCG provide either the ATO or the IPP with assurance that arrangements with high risk scores are, in fact, likely to be those to which Part IVA could be successfully applied.

Our view is that “Gateway 1 – commercial rationale” is the closest the draft PCG comes to any conventional consideration of matters relevant to the application of Part IVA but it does so through the abstract notions of “commercial rationale” or “commercially driven”. We do not consider this approach to be correct, practical or useful. If

“Gateway 1” is intended to be a “shortcut” Part IVA risk assessment tool and it is satisfied, we expect the application of Part IVA by the Commissioner of Taxation would be very difficult except in the most extreme of situations. As such, we question the purpose of the risk assessment framework as its contribution to the practical assessment of Part IVA risk is unclear. Despite the conceptual and practical limitations of “Gateway 1” (which includes the form and quantum of “remuneration paid” as a relevant consideration), we believe that where the IPP can show that they are remunerated on an arm’s length basis for the services they provide to the firm, the arrangement should be classified as low risk, all other things being equal.

Our view is that “Gateway 2 – highrisk features” may be a useful guide to identifying specific issues that should be considered when risk-assessing the arrangements of an IPP. We understand that it was the ATO’s concerns about the identified “high risk features” that led to the suspension of the original guidelines.

Other than, perhaps, to serve as examples of arrangements the ATO considers would not pass “Gateway 1”, it is unclear why the identified arrangements should feature as an exclusionary gateway to the application of guidelines dealing with the profit allocation of a business.

We observe that there has been a significant shift in the risk scoring of arrangements between the suspended guidelines and the draft PCG. Not only is the ATO’s basis for that shift not explained, it is not justified by reference to either the apparent rationale for suspending the original guidelines or the Part IVA provisions. A firm that met any one of the tests under the suspended guidelines (which were themselves a simple proxy for assessing Part IVA risk) is now rated as high risk, noting that only one test needed to be passed previously.

TAX FILES

Further, the effective tax rate thresholds do not factor in the legislated reductions in corporate and individual tax rates. We believe that this will result in a very large number of IPPs across a broad range of firms being classified as moderate or high risk when their arrangements are highly unlikely to trigger Part IVA. The impact of the draft PCG on IPPs and their firms will vary depending on a wide range of factors. We anticipate that these will be further articulated in separate submissions. The Joint Bodies would welcome the opportunity to facilitate further ATO engagement with our members to better understand the

challenges and unintended or unreasonable outcomes of the risk assessment framework.

Finally, the draft PCG refers to “the Guideline [being] formulated after consultation with legal and accounting professional bodies”.

We wish to clarify that while selected members of the Joint Bodies may have been consulted confidentially during the development of the draft PCG over the past several years, at no time were the associations themselves involved in consultation nor was any detail provided to them, in whole or in part, by the ATO. Therefore, the draft PCG does not reflect the views of the Joint Bodies”.

For those that read the May column or looked at the draft PCG it will have been apparent that that there are significant issues proposed in it for the structure of many legal practices. To date there have not been any public responses to the submission or others made since. It is to be hoped that there will be further consultation that takes a meaningful account of these submissions before any of the proposals in the draft PCG are given any effect by the ATO. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

l a u nn

A

• Puppy, kitten, dog and cat food (wet or dry) • Size 4 nappies • Tinned lentils, corn or fruit • Fruit nectar (canned) • Puppy pads • Small scissors • Fluorescent tape • Bird seed • Weetbix • Cat litter and bedding • Scratch posts • Head torches • Ledlenser torches • F10 disinfectant • All round worming and flea tablets • Herbivore Critta Care • 0.7 kangaroo or possum wombaroo milk powder • Late lactation koala milk powder • Impact supplement • Koala CrittaCare • Centrigen spray • Consumables such as postage stamps, envelopes, A4 paper, laminating pouches, Australia Post post satchels (inc. express post) The Law Society of South Australia, Lvl 10, 178 North Terrace, Adelaide

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July 2021 THE BULLETIN

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GAZING IN THE GAZETTE

3 MAY 2021 – 2 JUN 2021

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

Statutes Amendment (Recommendations of Independent Inquiry into Child Protection) Act 2021, No. 14 of 2021 (amend Bail Act 1985 and Children and Young People (Safety) Act 2017) Gazetted: 13 May 2021, Gazette No. 33 of 2021

ACTS PROCLAIMED Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021) Commencement Part 12: 1 July 2021 Gazetted: 6 May 2021, Gazette No. 29 of 2021 Teachers Registration and Standards (Miscellaneous) Amendment Act 2020 (No 38 of 2020) Commencement: 1 July 2021 Gazetted: 6 May 2021, Gazette No. 29 of 2021

Fire and Emergency Services (Governance) Amendment Act 2021, No. 15 of 2021 Gazetted: 20 May 2021, Gazette No. 34 of 2021 Statutes Amendment (Fund Selection and Other Superannuation Matters) Act 2021, No. 16 of 2021 (amend Southern State Superannuation Act 2009 and Superannuation Act 1988) Gazetted: 20 May 2021, Gazette No. 34 of 2021

Defamation (Miscellaneous) Amendment Act 2020 (No 41 of 2020) Commencement: 1 July 2021 Gazetted: 20 May 2021, Gazette No. 34 of 2021 Statutes Amendment (National Energy Laws) (Stand-Alone Power Systems) Act 2021 (No 9 of 2021) Commencement: 20 May 2021 Gazetted: 20 May 2021, Gazette No. 34 of 2021

Statutes Amendment (Transport Portfolio) Act 2021, No. 17 of 2021 (amends Criminal Procedure Act 1921, Expiation of Offences Act 1996, Fines Enforcement and Debt Recovery Act 2017, Harbors and Navigation Act 1993, Motor Vehicles Act 1959, Rail Safety National Law (South Australia) Act 2012 and Road Traffic Act 1961) Gazetted: 20 May 2021, Gazette No. 34 of 2021

Coroners (Inquests and Privilege) Amendment Act 2021 (No 10 of 2021) Commencement: 7 June 2021 Gazetted: 27 May 2021, Gazette No. 37 of 2021

Disability Inclusion (Restrictive Practices—NDIS) Amendment Act 2021, No. 18 of 2021 (amends Disability Inclusion Act 2018) Gazetted: 20 May 2021, Gazette No. 34 of 2021

ACTS ASSENTED TO Landscape South Australia (Miscellaneous) Amendment Act 2021, No. 13 of 2021 Gazetted: 13 May 2021, Gazette No. 33 of 2021

REGULATIONS PROMULGATED (3 MAY 2021 – 2 JUNE 2021) REGULATION NAME

COVID-19 Emergency Response (Expiry) (No 2) Amendment Act 2021, No. 19 of 2021 Gazetted: 20 May 2021, Gazette No. 34 of 2021

APPOINTMENTS Magistrate South Australian Civil and Administrative Tribunal Member Youth Court of South Australia Ancillary Judiciary commencing on 24 May 2021 Police Disciplinary Tribunal Panel Member: from 24 May 2021 until 28 April 2023 Protective Security Officers Disciplinary Tribunal Panel Member: from 24 May 2021 until 28 April 2023 Christopher Jeremy Smolicz Gazetted: 20 May 2021, Gazette No. 34 of 2021 Master of the Supreme Court of South Australia on an auxiliary basis, for a period commencing on 1 June 2021 and expiring on 30 June 2021 Christina Rose Flourentzou Gazetted: 27 May 2021, Gazette No. 37 of 2021

RULES Nil

REG NO.

DATE GAZETTED

National Parks and Wildlife (Fees) Revocation Regulations 2021

44 of 2021

6 May 2021, Gazette No. 29 of 2021

National Parks and Wildlife (Wildlife) (Fee Notices) Variation Regulations 2021 Harbors and Navigation (Fees) Variation Regulations 2021 Motor Vehicles (Fees) Variation Regulations 2021 Motor Vehicles (National Heavy Vehicles Registration Fees) Variation Regulations 2021 Teachers Registration and Standards Regulations 2021 Teachers Registration and Standards (Saving and Transitional Provisions) Regulations 2021 Teachers Registration and Standards (Amendment of Schedule 1 of Act) Regulations 2021 Rail Safety National Law National Regulations (Modification of FOI Act) Variation Regulations 2021 Electronic Transactions (Government Agency) Variation Regulations 2021 Public Sector (Data Sharing) (Relevant Entities) Variation Regulations 2021 Explosives (Security Sensitive Substances) Regulations 2021 Police (Merit Pool) Variation Regulations 2021 Terrorism (Police Powers) Regulations 2021 Criminal Assets Confiscation Regulations 2021 Surveillance Devices (Corresponding Laws) Variation Regulations 2021

45 of 46 of 47 of 48 of 49 of 50 of 51 of 52 of 53 of 54 of 55 of 56 of 57 of 58 of 59 of

6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 6 May 2021, Gazette No. 29 of 2021 13 May 2021, Gazette No. 33 of 2021 13 May 2021, Gazette No. 33 of 2021 13 May 2021, Gazette No. 33 of 2021 20 May 2021, Gazette No. 34 of 2021 20 May 2021, Gazette No. 34 of 2021 27 May 2021, Gazette No. 37 of 2021 27 May 2021, Gazette No. 37 of 2021 27 May 2021, Gazette No. 37 of 2021

DISALLOWANCE OF REGULATIONS General Regulations under the Planning Development and Infrastructure Act 2016 concerning Planning and Development Fund (No. 2) Variation, made on 18 40 THE BULLETIN July 2021

March 2021 and laid on the Table of the Executive Council on 30 March 2021.

Gazetted: 20 May 2021, Gazette No. 34 of 2021

2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – SYSTEMATIC AND CONTINUING BREACHES OF PROPERTY ORDERS WARRANTED IMPRISONMENT FOR THREE YEARS AND TEN MONTHS

I

n Campbell & Louis (Sentencing) [2021] FCWA 64 (15 April, 2021) Moncrieff J considered the sentence of a de facto husband who had contravened injunctions on 14 occasions.

The Court said (from [16]): “The respondent’s regard for the orders … has been limited only to his attempts at obfuscation by the use of descriptors for transactions that … suggested that his actions were not undertaken in disobedience of the orders. (…)

[18] He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit … the property of his mother … in breach of an injunction … (…)

[20] He has utilised his undoubted skill as an accountant and auditor … with a seemingly complete disregard for the impact [of] his actions …

[21] He has shown no remorse and seeks to excuse his conduct …

[22] … [T]he charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property …”

The Court concluded (from [54]): “These are serious prolonged and sustained breaches of orders … Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that

it is the only appropriate penalty in the circumstances …

[55] … I am satisfied that an immediate custodial sentence should be imposed …

[56] In other words a total served term of imprisonment of three years and 10 months …

[57] … [T]he key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders … requiring the production of accounts or information…

Further, that he disclose the location of funds withdrawn … or account for their expenditure …”

The Court also ordered costs fixed at $62,707.

COSTS – PROVISION OF A LAWYER THROUGH THE FAMILY VIOLENCE AND CROSS-EXAMINATION OF PARTIES SCHEME IS NOT LEGAL AID, SUCH THAT THE RECIPIENT IS STILL EXPOSED TO THE COSTS OF AN ICL In Legal Aid ACT & Westwell [2021] FamCAFC 50 (15 April, 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) heard Legal Aid ACT’s appeal from Gill J’s refusal to make an order for costs in favour of the independent children lawyer (ICL).

The mother discontinued parenting proceedings but a costs order was not made, as her lawyer was provided under the Family Violence and Cross-examination of Parties Scheme, which the Court said was “legal aid in respect of the proceedings”.

The Full Court said (from [22]): “Section 117(4) … applies when … a party ‘has received legal aid in respect of the proceedings’, which operates to shield that party from being ordered to pay the costs of the [ICL]. (…)

[24] … An [ICL] is appointed because the Court has found it is in the best interests of the child … Those best interests are not determined with regard to the financial disadvantage of the parties, but rather by looking at how the best interests of the children might best be advanced. The ability of the parties to pay for that representation … does not bear on that question. … (…)

[27] It follows that ‘legal aid’ as it appears in s 117(4) should be given the same meaning as in s 117(2A)(b) – namely, a formal grant of aid from a recognised legal aid agency. (…)

[40] We are therefore satisfied … the reference to ‘legal aid’ in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.

[41] … [I]t would be a bizarre outcome if a person who receives legal assistance … under the Scheme brings with it an immunity against the costs of the [ICL] to the alleged perpetrator of family violence, but the other party … remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. … ” July 2021 THE BULLETIN

41

FAMILY LAW CASE NOTES

PROPERTY – TRUST FOR SALE SOUGHT

BY WIFE – DISMISSAL OF WIFE’S APPLICATION TO RESTRAIN HUSBAND FROM MAKING A VENDOR BID In Field & Kingston (No. 3) [2021] FamCA 167 (25 March, 2021) Wilson J heard a wife’s application for her appointment as trustee for sale of a property registered in the husband’s name.

She also sought an order restraining him from making a vendor’s bid.

The wife feared that the husband would agree to unfavourable terms and that he would submit an unrealistically high vendor bid to thwart the sale.

Dismissing the wife’s application, Wilson J said (from [16]): “ … [T]he auction contract … contain[s] express provisions for the making of a vendor bid. …

[17] I am unable to find a contractual basis upon which … the husband is enjoined from making a vendor bid. …

In debate with [the wife’s lawyer] I … raised with him the test propounded in Blueseas Investments Pty Ltd & Mitchell [1999] FamCA 745; which … restates the conventional learning on the grant of an injunction namely, that the applicant must demonstrate … the existence of a serious issue to be tried and that the balance of convenience favours the granting of the injunction. I am not persuaded that the applicant has demonstrated anything remotely approximating such an entitlement and on that basis alone, aside from the express provisions of the contract, I rule against the wife …

[18] In all I am not persuaded that it is proper to appoint the wife as the trustee for the sale.

[19] … [O]n behalf of the husband [counsel submitted that] … a trustee must not put … itself in a position where there might be a conflict between duty and interest. Self-evidently, the risk of the emergence of such a conflict would arise (or I apprehend that there is a substantial risk to that effect) if the wife

42 THE BULLETIN July 2021

were appointed as a trustee because there is a substantial risk that she might agree to any price that is obtained at the auction. In those circumstances I am not persuaded that the wife is entitled to the orders that she seeks.”

CHILD SUPPORT – SECTION 90UD FINANCIAL AGREEMENT WAS NOT A BINDING CHILD SUPPORT AGREEMENT In Piper & Talbot & Anor [2021] FCCA 511 (18 March, 2021) Judge Bender heard a father’s appeal from a decision of the Administrative Appeals Tribunal as to whether a financial agreement made pursuant to s 90UD of the Act was also a child support agreement.

The parties made the financial agreement in April, 2015 following the breakdown of their relationship, which the mother registered with the Child Support Registrar in May, 2018.

The Court said (from [53]): “… s 84(5) of the [Child Support] Assessment Act states that the same document can be both a Child Support Agreement and a parenting plan, a Child Support Agreement and a Maintenance Agreement or Financial Agreement under the Family Law Act or a Child Support Agreement and a Part VIII AB Financial Agreement. Given my finding that the principles of law and equity are applicable to Binding Child Support Agreements, it will be necessary for the parties to have intended that the component of their joint document which relates to child support be a Binding Child Support Agreement … (…)

[165] … [I]t was incumbent upon the Tribunal … to look at the agreement as a whole, including the recitals, to satisfy itself that the legal advice given not only related to … Part VIII AB of the Family Law Act, but also related to … Part 6 of the Assessment Act as the parties’ rights and the advantages and disadvantages of the agreement are clearly very different

depending upon which agreement the advice is being given for.

[166] Whilst there is no statutory requirement … that a binding child support agreement specifically state that it is made pursuant to Part 6 of the Assessment Act … the Tribunal had an obligation … to read the agreement as a whole to determine if on its face the Tribunal could be satisfied the advice given was the effects of the document as both a financial agreement under the Family Law Act and a binding child support agreement under the Assessment Act.” The Court upheld all grounds of appeal and made a declaration that the s 90UD financial agreement was not a binding child support agreement. B

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LawCare

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

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

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

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

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

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

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

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

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

All information divulged to the LawCare counsellor is totally confidential.

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

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