The Bulletin - Law Society of South Australia

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

IN THIS ISSUE

A week in the life of a community lawyer Lawyers who volunteer Delivering legal services in remote areas

VOLUME 44 – ISSUE 6 – JULY 2022

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (6) LSB(SA). ISSN 1038-6777

CONTENTS LAW IN THE COMMUNITY

FEATURES & NEWS

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A week in the life of a CLC lawyer Q&A with Natalia Kasprzyk and Alexandra Psarras

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How a community legal network is delivering legal services to hard-toreach places – By Michelle Ford

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Bridging community and law: The role of the community lawyer

By Dharani Rana

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Spreading the word: SA laws in 14 languages – By Gabrielle Canny

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Giving back to the community: Two lawyers explain why volunteering means so much to them &A with Alice Tester and Will Gray

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Urgent investment needed for important justice reinvestment initiative – By The Hon Robyn Layton AO QC

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

J Stewart-Rattray J Marsh A Lazarevich M Tilmouth F Bell R Sandford M Mackie E Shaw

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

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Walk for Justice raises more than $80,000 – By Rebecca Ross

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Heading in a new direction? SA’s change of position on rules of construction – By David Kelly

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27

An Analysis of the Law Society of South Australia’s Cloud Computing Guidelines: Resilience

By Mark Ferraretto Lucinda Byers appointed Chief Legal Officer of Legal Services Commission

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27

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REGULAR COLUMNS 4 5 10

From the Editor President’s Message Wellbeing & Resilience: Vicarious trauma: Everyone’s problem

By Zoe Lewis

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

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Young Lawyers: Event wrap-up: Young Professionals Gala – By Daisy McLeod, Meghan Fitzpatrick & Mikayla Wilson From the Conduct Commissioner: Outgoing Commissioner outlines main casues of complaints – By Greg May Tax Files: Trust issues? There may be a solution – By Briony Hutchens Risk Watch: Need to know now?

“Last minute” is no excuse for lack of clarity of instructions – By Grant Feary Family Law Case Notes

By Craig Nichol & Keleigh Robinson Bookshelf Dialogue: A roundup of recent Society meetings & conferences

By Rosemary Pridmore Gazing in the Gazette Compiled by Master Elizabeth Olsson

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington D Sheldon J Arena A Douvartzidis C Borello 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.

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

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

FROM THE EDITOR

Highlighting the amazing work of lawyers who serve the community MICHAEL ESPOSITO, EDITOR

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opular media representations of lawyers seem to either fall into two camps. The generous portrayal of a swashbuckling champion of the underdog, or the self-involved mercenary who has no regard for fair play. In both cases, onscreen lawyers’ lives are often portrayed as glamorous.

The reality is a little different. Most lawyers are hard-working, diligent practitioners who are not living jet-setting lifestyles. And those who are fierce advocates for the rights of the vulnerable are not doing it for the money!

In this edition, we want to highlight those lawyers who, day in day out, go in to bat for the vulnerable, the disenfranchised, the frightened. We speak to Natalia

Kasprzyk from Community Justice Services SA and Alexandra Psarras from Women’s Legal Service (SA) about what it is like to work as a lawyer in a community legal centre, while Dharani Rana explains her role as a community lawyer focussing on homelessness with JusticeNet SA. We also have a feature on Alice Tester and Will Gray, two private lawyers who give back to the community through extraordinary volunteer efforts.

Michelle Ford, managing lawyer at WestSide Lawyers, who writes about the National Regional, Rural, Remote and Very Remote Community Legal Network, which comprises about 40 legal service organisations across Australia and has a mission to enhance access to justice in

areas that typically lack the infrastructure for people to readily access legal services.

Another fantastic initiative is Tiraapendi Wodli, the justice reinvestment hub in Port Adelaide which delivers community programs led by leaders in the Aboriginal community with the aim to reduce Indigenous youth incarceration rates. This is a really important service that needs extra funding to continue and build on its great work.

This is just a tiny sample of the members of the legal community who work tirelessly to help those who need it most. It was a privilege to hear these lawyers share their stories and give readers insight into the amazing work they do, and the impact their work has. B

Accessible courtroom requests in the Supreme Court

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he Supreme Court has provided an update on the process for allocating accessible courtrooms.

Where a person involved in a case being heard in the Supreme Court makes an accessibility request for a hearing, the Court will list the matter in an appropriate courtroom and source any equipment required for the hearing (where possible).

The allocation of appropriate courtrooms is best managed where the request is made at least 24 hours in advance of the hearing.

Where an accessibility requirement is not known in advance of a hearing and chambers staff become aware of the requirement, efforts can be made relist the matter in an appropriate courtroom (if available).

Civil and probate Parties to proceedings who have

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CourtSA access are able to request assistance for a hearing via the Hearings tab on CourtSA. The assistance options are: • Appearing by phone; • Appear by audio visual link; • An interpreter; or • Any other request.

When selected, the “Another request” option provides a free-text field for the user to enter the assistance requested (i.e., hearing loop, wheelchair accessible courtroom, etc).

Information on how to make these requests is available at Hearings | CourtSA. (https://courtsa.courts.sa.gov. au/?q=node/492).

Alternatively, parties without CourtSA access, non-parties, or the public can contact the Supreme Court Registry to make a request.

Criminal Requests for assistance in criminal hearings can be made via email (preferred) or telephone to the Supreme Court Registry.

It is anticipated that when CourtSA goes live in the criminal jurisdiction, accessibility requests will be able to be made via the portal in a similar manner to that described above for the civil jurisdiction.

REGISTRY CONTACT DETAILS Supreme Court (Civil) CAAPMSupremeCourtCivil Registry@courts.sa.gov.au 8204 2444 Supreme Court (criminal) CAAPMHigherCourtClient ServicesCAA@courts.sa.gov.au 8204 2444 B

PRESIDENT’S MESSAGE

Community engagement an important part of what we do JUSTIN STEWART-RATTRAY, PRESIDENT

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he legal profession has a proud history of helping the community.

The principles of justice and equality that form the basis of legal education seem to engender a sense of duty and responsibility to the wider community, which is why we see many lawyers engage in significant pro bono work, or use their qualifications and experience in numerous volunteer roles.

The Law Society itself also has had a strong community focus throughout its history.

In addition to its key function to represent the interest of the legal profession and uphold the integrity of the profession, its formal objects include undertaking community education concerning the law and the legal profession, undertaking activities designed to improve access to justice, and advocating strongly and publicly for the maintenance and protection of legal rights and freedoms.

The Society is involved in a number of community-facing activities, some more widely known than others.

One of the lesser-known services is the Speaker’s Bureau. Community organisations are able to make a request to the Society for a speaker, and the Society will try to find a suitable speaker for that organisation’s event.

The Speaker’s Bureau serves a number of purposes – it is a way for the profession to educate the community about important legal issues, it boosts the profile of the profession, and gives lawyers valuable and rewarding experience in a public speaking role.

Anyone that is interested in nominating as a speaker can contact the Society at mcs@lawsocietysa.asn.au.

Some of the more visible community

services are the See a Lawyer and Advisory services.

The Society administers an advisory service where members of the public can book a 20-minute consult for $35 (or $25 for concession) with a suitable lawyer. This is a highly valuable community service as sometimes all it takes is 20 minutes with the right lawyer to help someone clarify what their next steps should be in resolving a legal issue.

Similarly, the See a Lawyer service is an online tool that helps connect people with a suitable lawyer. The reason why this is such a highly used service is that the Law Society is a trusted organisation and individuals have confidence that the Law Society’s service will help them find the right law practice for them.

In exciting news, we are in the process of significantly upgrading our See a Lawyer service to make it easier for people to search for a suitable lawyer. The new tool will allow users to enter in any search term (eg “child custody”; “Centrelink payments”) rather than select the area of law their issue pertains to, although there will remain the option to search by area of law.

This is a far more user-friendly format designed to be simple to navigate and understand.

The service will also have a new accessibility feature, which will allow people with disability to indicate any access requirements they may have, and filter their search to law firms that can accommodate their needs.

Another important role which impacts the community is our advocacy. Although we advocate on behalf of the legal profession, what we advocate for generally has benefit for the community.

As a recent example, President-Elect James Marsh recently stood in for me

at short notice to speak on a Panel at a public forum in the Town Hall on the implementation and regulation of facial recognition technology.

With SA Police announcing they are rolling out facial technology in the Adelaide CBD, the Society strongly advocated for there to be legislative protections to ensure that members of the public were not subject to intrusions of their privacy and any surveillance technology was governed by strict rules that make authorities accountable for how they use the technology.

Another example of important advocacy work is the recent proposed reforms to the workers’ compensation scheme. Despite the lack of consultation from the Government, the Society prepared a detailed submission outlining the potential effects on the Bill on injured employees.

The Bill was subsequently withdrawn and a new version introduced, and the Society once again, with large thanks to the work of the Accident Compensation Committee, put together a comprehensive submission which was guided by the overarching principle that our workers’ compensation scheme should exist first and foremost to protect South Australian workers.

Lastly, an announcement on two upcoming events.

The Society will be holding a quiz night later in the year. It promises to be a great night, and it will be the main fundraiser for the President’s Charity Partner, The Heart Foundation. More details coming soon.

And I’m excited to be hosting the Legal Profession Dinner on Friday, 19 August at Adelaide Oval, with renowned tennis coach Roger Rasheed as the special guest. To register for this special event, contact mcs@lawsocietysa.asn.au. I look forward to seeing you all there. B July 2022 THE BULLETIN

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LAW IN THE COMMUNITY

A week in the life of a CLC lawyer

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campaign has been launched by the Australian Services Union in Victoria calling for greater State and Federal Government funding to create better working conditions for community legal centre (CLC) staff.

But these issues are not peculiar to Victoria. Staffing has been an issue in CLCs across Australia, including SA. Not only are CLC staff generally paid less than their counterparts in other sectors, but staff have to deal with extremely high caseloads, meaning they often cannot give each case the attention it deserves.

In SA, a number of CLCs are having difficulties recruiting and retaining staff, and this has been exacerbated by COVID-19 which has not only increased demand for CLC services, but led to rolling staff shortages.

The most vulnerable people in the community are seriously disadvantaged by an under-resourced CLC sector, and it is essential that the State and Federal Government ensure these services are adequately funded so that people who have legal issues that could jeopardise their livelihoods or safety have access to legal help.

To demonstrate the essential work of community legal centres, we spoke to two people about what it’s like to be a community lawyer.

NATALIA KASPRZYK, SENIOR SOLICITOR & PROGRAM COORDINATOR (FLAGS) AT COMMUNITY JUSTICE SERVICES SA

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What kinds of legal issues do you assist people with?

Community Justice Services SA provides advice and representation to those who require assistance with legal issues stemming from minor indictable criminal matters and minor civil disputes to issues stemming from separation.

I am employed as senior solicitor and program coordinator of Family Law Guidance and Advocacy Services (“FLAGS”), a new program of Community Justice Services SA that specialises family law and provides representation for those requiring ongoing-assistance with property settlements and disputes regarding children’s care arrangements.

What might a typical week look like for you?

Community Justice Services SA allows for flexible workplace arrangements. As such, I am able to perform my full-time role (38 hours a week) by working from 8am to 6pm, Monday to Thursday.

When I worked under the generalist section of Community Justice Services SA, a typical week would consist of me seeing 5-7 new clients daily for advice only appointments (1 hour at a time) amongst various court attendances, ongoing work on open files, CPDs, general administration and 8-10 cups of coffee.

Working for FLAGS, the only change is amount of clients I see weekly which has changed to approximately 6-8.

How do you determine whether a person is eligible for assistance, and what kind of assistance they need?

At Community Justice Services SA, everyone is entitled to free advice and appointments can be made by contacting the Service directly.

For clients seeking ongoing assistance and/or representation in the areas we give, we have eligibility criteria the client must

meet to obtain our free service. These criteria include, but are not limited to, means, merit and complexity. We have a guideline when it comes to the income a client (individually and jointly with a dependent) can earn and still use our service, whether this is in combination with Centrelink payments or not, and is weighed up against the client’s expenses.

When it comes to merit, the client’s position in the matter must have some likelihood of success. We can also apply other discretionary criteria to help us determine whether a particular client needs assistance with negotiations and/or court representation where, for example, English is not the client’s first language, the client suffers from mental health issues that prohibit them self-representing, the client is a victim of domestic violence and they cannot directly liaise with a legal matter against their abuser.

The purpose of FLAGS is to assist those who cannot be assisted with family law matters under the generalist funding, i.e. their income falls outside of the eligibility criteria and/or their matter is quite complex. We can also apply other discretionary criteria to help us determine whether a particular client needs assistance with negotiations and/or court representation.

What are the demographics of your client base?

Community Justice Services SA provides services to persons living south of Adelaide, including Marion, Victor Harbor, Kangaroo Island, as well the Limestone Coast and extending to the Riverland. The scope of our ongoing assistance is subject to eligibility for those already ineligible for or have been refused legal aid who cannot afford to engage or continue to pay a private solicitor.

Have you noticed any trends with regards to the type of issues people are

LAW IN THE COMMUNITY

seeking assistance with, the volume of people seeking assistance, and/or the complexity of the work involved?

I haven’t been able to identify any trends, per say, however I have noticed the complexity of matters has increased in recent years. In family law matters, the prevalence of domestic violence, increased use of illicit substances and mental health concerns contribute to the complexity of family law matters. Social factors such as these, collectively and individually, have always been a feature of some separations.

The COVID-19 pandemic has increased the frequency of matters that involve these factors which can, in turn, increase the complexity of the legal issues at hand.

Apart from COVID-19, has anything else contributed to the increased demand in CLC services?

As the Service and its reputation has grown over time, community members are now aware of our presence and the scope of our services. I see that more and more people who are not eligible for legal aid seek assistance with their civil disputes and representation with their family disputes and criminal matters.

Do you find you have to turn some people away due to lack of resources?

If so, do you know approximately how many you have to turn away, and do you try to direct them towards other avenues they could pursue?

We try not to turn people away due to a lack of resources and instead find key referrals so they can still be supported.

However, our resources are limited and we cannot help everyone even when they may meet our criteria. There are some areas of assistance such a personal injury, victims of crime, Workcover or intellectual property that the Service is not funded to provide advice about and in those instances, clients are referred to private practitioners at the time they enquire for an appointment with the Service. Then

there are matters in which we may provide general advice to clients but refer to other community-based services which are funded to provide specialised advice and ongoing assistance, for example employment law (youth), family mediation and legal advice clinics for assistance with minor civil claims. In matters where we are providing assistance, if an issue arises concerning the client’s ongoing merit comes into question, for example, their position becomes untenable and they refuse reasonable advice going forward, we have to re-assess their eligibility for continuing assistance.

Can you talk about the kind of impact your service has on vulnerable clients?

The common denominator amongst our diverse clients relates to finances – they all cannot afford private solicitor fees.

As such, by the time they find out about and engage with our service, they will have already faced this obstacle in their pursuit to access justice. On top of this, some are struggling with their mental health, fleeing a dangerous situation at home, are at risk of homelessness, or have prejudice to the legal system from past experiences. Most legal proceedings take time and keeping a client engaged and focused is not easy, let alone when they are experiencing some or all of the above issues. However, it is extremely rewarding to see your client come out the other side, happy with the outcome we were able to get for them.

One example I can think of is a client who lived in a remote regional town. This client found themselves in a dispute with their former partner over the ongoing care of their young children.

There was history of domestic violence between the parties and ongoing drug abuse as well as neglect of the children.

This client was not eligible for legal aid and could not afford a private lawyer. CJSSA was the only resource available to this client and, after almost three years in the Court

system, we helped this client retain primary care of the children and remove them from a negative environment on a final basis.

How are people directed towards your services? Do you find that the majority of people who need legal assistance know where to go, or have you found there is a significant lack of awareness about CLCs and who people should contact for suitable legal assistance?

Community Justice Service SA has existed in the community (in one form or another) for almost 40 years. Locally, we are well known by other services and private practitioners in the southern area.

We have a well-resourced website and social media presence on LinkedIn and Facebook. Despite this, there is still a significant lack of awareness about CLCs in the professions in SA. People seem to think there is Legal Aid and then that’s it, there’s no other way to get free assistance.

Alternatively, some people think we are a part of the Legal Services Commission. As our presence expands (with programs like Bushfire Community Legal Program and FLAGS) clients and practitioners alike will become more aware of our service, what we actually do and first-time clients will stop asking whether we are “real” lawyers or not.

Have there been any initiatives at your CLC to enhance access to legal services?

We have made applications for additional funding grants to get more solicitors and more specialised programs so that we can extend our ability to assist people accessing legal services.

In recent years, we have re-designed our website so more information is available to clients, and they can make appointments online. We have gained a bigger presence on social media (Facebook and LinkedIn) to build awareness of our place in the legal sector.

July 2022 THE BULLETIN

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LAW IN THE COMMUNITY

QUESTIONS – BULLETIN ARTICLE RE CLCS

ALEXANDRA PSARRAS – SENIOR SOLICITOR, WOMEN’S LEGAL SERVICE (SA) PROGRAM – TEMPORARY VISA HOLDERS EXPERIENCING VIOLENCE What kinds of issues does the Women’s legal Service (SA) assist people with?

We assist women with a wide range of legal issues including immigration, family law, minor criminal law, intervention order matters, and general advocacy.

What might a typical week look like for you?

I work within a specialist program at the Women’s Legal Services SA, which assists women on temporary visas Holders Experiencing Violence. Therefore, my role includes not only meeting with clients and representation work but also stakeholder engagement meetings, community legal education workshops, and research.

I am most passionate about community legal education and strategizing different ways we can meet with community groups and leaders, stakeholders and organisations who can potentially benefit from our services. This is because community legal education allows us to increase the capacity of women to make informed choices about their own lives and that of their children.

Having the information up front allows women to reach out for assistance from

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services like ours and other community services when they are in need.

A typical week for me is very hectic.

I am not only dealing with my own caseload, but I also need to be able to respond to walk-ins and callers on the intake line. We average over 100 phone calls each week for legal assistance. I also have to juggle, in between all of this, meetings with stakeholders, administrative tasks and assisting junior solicitors.

Sometimes I am not sure how I manage to survive the week!

How do you determine whether a person is eligible for assistance, and what kind of assistance they need?

First, we meet with or talk to the client over the phone to determine what their legal issues are. At this first meeting may make also provide referrals to the Red Cross for financial support where possible and other non-legal services where necessary. Following the initial appointment, the client’s matter is then assessed against our merit criteria. If a woman is successful in receiving ongoing legal representation, we provide legal assistance free of charge up to and including trial or AAT appearances.

What are the demographics of your client base?

30-39, separated, single parents and experiencing violence. Predominantly seeing trends of clients from India, Iran, Africa and surrounding countries in my program but Women’s Legal Service SA has a diverse range of clients. Our clients: • Range from 15 years old to 82 years of age, • 10 per cent of our clients identify as Aboriginal and/or Torres Strait Islander • 10 per cent live in outer regional or remote areas of SA (500+ women) • 20 per cent are living with a disability or mental health issue

• •

20 per cent are homeless 65 per cent are victims of domestic/ family violence Have you noticed any trends with regards to the type of issues people are seeking assistance with, the volume people seeking assistance, and/or the complexity of the work involved?

The most common legal issues are immigration and family law and in both areas of law the complexities are magnified by factors such as: • family violence, • lack of access to safe housing and accommodation, • lack of access to financial resources or assistance, • trauma and associated mental health issues, • lack of knowledge of their rights in Australia, and • limited access to interpreters.

Unfortunately, the reality for many of the women who access our services and for women in my program, COVID-19 and the economic pressures that are being experienced by many families, have exacerbated family violence. With so much uncertainty women are reluctant to seek help or go back to abusive relationships because of lack of finances and/or accommodation. I expect that the situation will only become worse as housing affordability and the cost-ofliving increases.

In addition, many of the clients who access my service have multiple legal issues in addition to the usual challenges of finding safe and affordable accommodation and obtaining financial assistance because many of my clients have no source of income and are ineligible for government assistance. It is not uncommon for the women to have 2, 3 or even 4 legal matters that need to be addressed simultaneously.

LAW IN THE COMMUNITY

What do you think are the main factors contributing to the types of problem women experience when they come to you for help?

It is more difficult for temporary visa holders to access financial help and housing and accommodation due to their visa status which does contribute to their increased vulnerability and the ability for perpetrators of violence to continue to abuse these women. COVID-19 also did and continues to provide a legitimate excuse for perpetrators of violence to use when attempting to isolate victims and their children. As such the challenge for women seeking assistance from us is that the current external environment has created the perfect storm with regards to increasing their level of vulnerabilities.

I must admit at this point, that we have been fortunate that women who access our services are also able to access non-legal supports within the organization. We have financial counsellors, family advocates and will have on board within the next few weeks, mental health specialists to assist our clients as they navigate the legal system. Without the support of these specialist services it would be difficult to manage the complexities of our clients legal and non-legal needs.

Do you find you have to turn some people away due to lack of resources?

If so, do you know approximately how many you have to turn away, and do you try to direct them towards other avenues they could pursue?

The reality for a service like ours, and my program which has only two solicitors working within it, is that demand far outstrips our resources. We have on average between 2,000 to 2,500 women reach out to us each year seeking help. The sad reality is that we can only help about 15 per cent of the women who contact us. Therefore 85 per cent of women are

not able to obtain legal help from us. We refer women to legal assistance providers like ours and to private legal practitioners where it is appropriate to do so. We also provide over 4,000 referrals to community services, and government agencies.

What are some of the ways that Women’s Legal Service (SA) has a positive impact on women?

We have already had a few women who have successfully obtained permanent residency through our program. We have assisted most in providing further documentation or information where possible to apply for either permanent residency or a new temporary visa which have either been successful or are being assessed. In relation to family law matters we have assisted women in relation to children’s issues and a small amount of property matters.

For our clients the main feeling they would experience is relief. Living in limbo and not knowing whether they can stay in Australia and whether they would be able to continue to be in their children’s lives due to their immigration status has a massive burden on their emotional wellbeing. Many of our clients come from countries where it is not safe for them or their children to return to, as such any help to assist them in remaining in safety where they do not live in constant fear has a profound impact on their lives and the lives and futures of their children.

How are people directed towards your services? Do you find that the majority of people who need legal assistance know where to go, or have you found there is a significant lack of awareness about CLCs and who people should contact for suitable legal assistance?

There are many referral pathways to accessing our service. For my program clients are usually referred to us through: • Red Cross Australia

• •

domestic violence services and other community services.

We find that awareness of Women’s Legal Service SA and the services we provide is increasing, however, we recognise that we do need to continue to work hard in maintaining relationships with external stakeholders and community groups so as to raise awareness. For the women who access my program they are often surprised by the fact that there is free legal help available.

I do feel that in South Australia there needs to be greater awareness about community legal centers and the role that we provide in helping the community. It is very easy to get in contact with us and we encourage everyone to reach out and ask questions if you are unsure as to whether we can help a woman.

Have there been any initiatives at your CLC to enhance access to legal services?

Because we are a state-wide service, we have an extensive outreach calendar that covers over 13 different locations across South Australia. We also provide free community legal education workshops to community organisations and community groups. We are always exploring new ways of increasing access to legal help for as many women as possible.

One initiative that we are proud of is the “Ask MARIA” app which is an app that provides general information on a wide range of issues including finance, housing, immigration and respectful relationships in nine different languages.

The app is unique because it allows women to obtain information in audible form. This is really useful because there is a significant cohort of women who are not literate in their own language. This app allows women to be able to access the information they need and to link in with services in their own regional areas. B July 2022 THE BULLETIN

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WELLBEING & RESILIENCE

Vicarious trauma: Everyone’s problem ZOE LEWIS, WELLBEING & RESILIENCE COMMITTEE

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t is easy to say that employees should safeguard their own mental (and physical) health through the adoption of healthy habits, such as adequate sleep and exercise. However, employers cannot escape the fact that they too are responsible for this safeguarding. The High Court has recently made this clear in the case of Kozarov v Victoria.1 Although the four separate judgments follow different lines of reasoning, one theme is common: employers must give genuine consideration to the mental wellbeing of their staff in order to avoid potential liability for psychiatric injury.

This case related to Ms Kozarov, an employee of the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions (OPP). She was a recently admitted solicitor and her work routinely involved engaging with survivors of trauma and exposure to descriptions and depictions of their traumatic experiences.

After working in this role for a while, she was diagnosed with Post-Traumatic Stress Disorder (PTSD) resulting from vicarious trauma related to her employment and was later diagnosed with Major Depressive Disorder (MDD) as well. Ms Kozarov pursued a claim on the basis of the negligent failure of her employer to prevent psychiatric injury to her while she was working in the SSOU. There are some differences of opinion between the various judgments as to when and how the employer’s duty of care arose, and what actions constituted a breach of that duty. On the one hand, it was considered that, given the nature of the work (which included carefully reviewing graphic material such as child pornography), a duty arose as soon as the person commenced employment and was breached as soon as the employer failed to respond to signs of adverse psychiatric impact.

There were considered to be many signs that Ms Kozarov was experiencing work-related PTSD. These included the fact that she raised concerns in staff meetings about how her work was impacting on her as a mother, such as

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making her feel paranoid about leaving her children in anyone else’s care due to the risk of abuse. She signed a staff memo which raised concern about caseloads and experiences of stress. She tried to refuse to take on an additional case but was assigned the matter anyway, despite its horrific content. She also left work one day due to dizziness and then commenced a period of two weeks sick leave.

Some of the High Court judges thought however that these warning signs weren’t even a necessary factor but that the employer was obligated to take active steps to protect the psychiatric health of Ms Kozarov and her colleagues because of the circumstances of this particular type of employment. On this view, the work to be performed was inherently and obviously dangerous to the psychiatric health of the employee and therefore the employer was duty-bound to be proactive in the provision of measures to enable the work to be safely performed.

Some of the Justices were at pains to clarify the interpretation of the earlier case of Koehler2, in particular, to make clear that it was not necessary for the employee to show that there were evident signs of adverse impact on her mental health.

Instead, it was enough that the employer had failed to provide a safe system of work,

and that this failure caused the exacerbation and prolongation of her PTSD and subsequent development of MDD. The reality is that working as a lawyer might mean that vicarious trauma is inevitable. This is perhaps most obvious for those working in criminal law matters, as was the case for Ms Kozarov, but is also true of many areas of law, including family and personal injury. Employers and employees alike must be vigilant about the inherent risks of the work being done and the need to have preventative measures in place, as well as strategies for dealing with psychiatric injury which is not successfully prevented.

Clearly this is not just something for employees to manage via self-care strategies. Instead, employers need to consider practices such as adequate staffing to prevent overwork or burnout and rotation of work to give people a break from distressing content.

What is Vicarious Trauma?

Vicarious Trauma (VT) is “the negative transformation in the helper that results (across time) from empathic engagement with trauma survivors and their traumatic material, combined with a commitment or responsibility to help them”.3 Or, put simply, “being traumatised by what we see

WELLBEING & RESILIENCE

and observe” 4. The greater our exposure to traumatic material, the greater our risk of experiencing VT. What does VT look like?

Common signs include: • Avoiding certain files or clients • Engaging in risk-taking behaviour • Insomnia • Withdrawing from others • Nightmares • Fear about safety of self or others • Irritability • Emotional numbness.

It can lead to long-term issues including changes to our core beliefs about ourselves, others and the world around us.5

What are some ways we can we change our work environment to reduce the risk and impact of VT? • Limit the frequency of exposure to traumatised clients where possible • Implement systems and procedures for dealing with trauma in the workplace • Provide formal training in dealing with trauma survivors • Establish a culture which encourages debriefing in an emotionally honest manner • Mark files with a content warnings and restrict access • Set limits on how much time is spent working on a file at a time and take breaks

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Avoid taking such files home and where possible create physical boundaries in the hope that this creates some mental space from the content when engaging in other activities6

Endnotes 1 [2022] HCA 12.

2 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

3 Pearlman and Caringi, 2009, 202-203 from https://professionals.blueknot.org.au/ supervision-and-practice/.

4 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf 5 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf 6 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf

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LAW IN THE COMMUNITY

HOW A COMMUNITY LEGAL NETWORK IS DELIVERING LEGAL SERVICES TO HARD-TO-REACH PLACES MICHELLE FORD, MANAGING LAWYER, WESTSIDE LAWYERS

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on-profit legal services play an important role in helping disadvantaged and vulnerable members of the community obtain access to justice. This is particularly important in regional, remote and rural and very remote areas where access to legal services is extremely limited.

Providing an effective legal service in country areas comes with many challenges. For this reason, in April this year Community Legal Centres Australia initiated a national network to bring together community legal workers to foster collaboration and support between rural, regional, remote and very remote legal communities, to share resources and knowledge and seek to increase the availability and access to legal services within RRRR communities.

The network has adopted the name “The National Regional, Rural, Remote and Very Remote (RRRR) Community Legal Network” and currently has around 40 members from across Australia.

This article seeks to raise awareness of the types of services that are available in RRRR communities, the challenges faced by members of these communities in accessing justice, and the impact of those challenges on the community.

Who Are We? What Do We Do? As an insight into who we are, how we help RRRR communities achieve access to justice, and some of our hopes and challenges, we are sharing with you some member accounts.

Anne Lewis is the Director of the North Queensland Women’s Legal Service (NQWLS). She has worked in Community Legal Centres in North Queensland since 1992 and has advocated for increased access to justice for vulnerable people living in rural, regional and remote

12 THE BULLETIN July 2022

areas through increased resources for Community Legal Centres (‘CLCs’) as a key part of her work.

NQWLS has offices in Townsville and Cairns and assists women living in RRRR communities, from Sarina in Central Queensland to the Torres Strait in the north and west to the Northern Territory border.

NQWLS provides legal advice, casework assistance and representation in the areas of family law, domestic and family violence, migration, child protection, sexual assault, human rights and discrimination, and Victim Assist.

They also deliver and develop CLE resources and undertake law reform work.

Legal information, resources and referrals can be provided in any area of law.

Anne has witnessed first-hand the challenges for women living in RRRR communities across the top half of Queensland, and suspects those challenges are similar to those faced by people living in RRRR communities right across Australia.

The vast majority of women who seek help from NQWLS as a specialist women’s legal service are impacted by domestic or family violence and need legal help and a range of supports to escape violence and find safety for themselves and their children.

Services needed by women living in RRRR communities are often scant or nonexistent in some places and every free legal and support service is stretched to capacity and then some. Responding to domestic violence and rebuilding lives after trauma and family breakdown requires an integrated community response which can offer wraparound, trauma-informed services.

Increased training about the ‘why’ and the ‘how’ and the social benefits of holistic service delivery options, is an ongoing need for service providers across the justice

Bushfire Community Legal Program solicitor Holly McCoy outside the Parndana (KI) Recovery Centre in December 2020.

system, for police, the courts, lawyers, for community support networks and for the public. Education will support change.

NQWLS works collaboratively with its CLC and community partners in its region to provide education, resources and training in the community to the extent resources will allow.

When asked why NQWLS decided to be part of the RRRR network, Anne enthusiastically described a range of benefits envisaged by herself and her organisation, including the potential to create stronger connections with likeminded individuals and organisations who are also working to create change.

“Collaboration will always achieve more than working alone especially when tackling the social issues that surface at a time of crisis in a woman’s life. Separation or Domestic/Family Violence are often just one of many issues a woman might

LAW IN THE COMMUNITY

CLCSA Chair Catherine McMorrine (left), Legal Officer Holly McCoy and Project Officer Ippei Okazaki (right) receiving the Australian Institute for Disaster Resilience Community Project Award SA 2021 from then Emergency Services Minister Vincent Tarzia

need help and support with when she contacts us.

NQWLS believes our services and communities are strengthened by being united in purpose.”

Anne noted that the CLC sector is better resourced now than it ever was in the early days, however she raised concern that challenges for vulnerable people are changing and growing due to population growth, increased social problems, climate change, and living in a digital world which all serve to create further pressures on health, education and legal assistance.

“The CLC sector works hard to adapt and meet the changing needs of the community and we do an awesome job for those whom we can reach.

For those who are beyond our reach and who cannot reach us, we must aim to do more and this continues to be an enormous challenge for CLCs. The RRRR network has the potential to strengthen and unite CLCs and find new ways of reaching out further than before. It is exciting to see the RRRR Network re-establishing and energised.”

Holly McCoy is a Solicitor who worked tirelessly on the Bushfire Community Legal Program provided by the Community Justice Services of South Australia. She spent 18 months traveling fortnightly to Kangaroo Island and a handful of trips to the Yorke Peninsula, post the 2019/2020 Black Summer fires. The purpose was to deliver free legal advice, information, referrals and education to assist the community with their relief and recovery efforts.

Holly now travels throughout South Australia to bushfire high risk regional/rural communities to deliver free legal education and advice to assist communities with their bushfire preparedness and resilience.

When asked about the challenges faced by members of RRRR communities, Holly cited the lack of public transport and the distances people are required to

travel to access legal services and Courts as a major barrier to accessing justice.

Whilst organisations do deliver outreach services, they tend to be located in the main township which is often inaccessible to many people due to distance and transportation issues.

COVID-19 has shown us how services can utilise electronic service delivery such as videoconferencing, however Holly believes that service providers and Courts may have become too reliant on such delivery methods as many people in remote RRRR areas experience unreliable (or no) access to telecommunications or internet.

Holly is concerned that community members are often unaware that a number of services are available to them. Outreach services are often ad hoc and poorly advertised.

From a legal perspective, the lack of access to appropriate legal services results in matters escalating and becoming all consuming, whereas with early intervention, they could have been swiftly resolved or, potentially, avoided all together. These issues further compound (and/or are compounded by) mental and physical health, financial, and family difficulties.

Linda Ryle is Chairperson of the Board of Directors, Aboriginal Family Legal Service Southern Queensland (AFLSSQ).

She was born and raised in a small rural community in Northern Queensland, and is a proud Birrigubba and Kamilaroi Woman. AFLSSQ is an Aboriginal Legal Service, a family legal service.

Linda has a long history in Aboriginal Affairs since the late 1990s (initially in North Queensland). She had a tenured engagement with Rural Regional and Remote Aboriginal Communities, particularly in the context of Professional

Business and Governance Support at both the operational and organisational levels, as well as collaborative and egalitarian approaches to Community Development.

Linda also conducts research and coaching in the area of Culturally Principled Legal Practice.

AFLSSQ services a geographical area equivalent to six times the size of the state of Victoria. From Gladstone in the North East across to the NT and SA borders, South to the border of NSW. AFLSSQ has a head office in Roma, Regional offices in Toowoomba, Murgon/Cherbourg and Beerwah, and they also support 9 satellite offices (all RRRR community locations).

When asked about the challenges faced by members of the communities they serve in accessing justice, and the impact of those challenges Linda remarked on the sheer vastness of Queensland, a decentralised State where 80.6% of AFLSSQ clientele hail from Very Remote locations. Indeed it was Linda who was the catalyst for the inclusion of RRRR in the name of our network – the fourth R representing Very Remote communities, because the experiences and challenges faced by this cohort is very different to less remote communities, thus deserving its own recognition.

Linda described how First Nations families have suffered horrific abuses and injustices perpetrated by non First Nations people and systems, since colonisation.

“First Nations families (and in particular First Women) remain the most disadvantaged, disregarded, misrepresented and demonised across all sectors in Australia today. Incarceration is a key element in the destruction of First Women and their families – with their children then falling into the care of the State.”

Linda referred to the Australian Law Reform Commission Report Pathways to July 2022 THE BULLETIN

13

LAW IN THE COMMUNITY

Justice Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples which found that Out of Home Care for First Nations children was a pathway to juvenile offending and Adult Incarceration.1 Linda explained how the vast distances which encompass the geographical service areas AFLSSQ commit to support, the dearth of First Nations (and other) Culturally Principled Legal (and support services) Professionals to fill AFLSSQ team vacancies, and the uncertainty of funding and the shortfall of adequate levels of funding to support services such as AFLSSQ all serve to create challenges in providing appropriate services.

“The lack of the understanding by funding providers (Government and other), of the needs to be met and the Human Rights entitlements of First Nations families as a fundamental right, persists.”

Linda would like to see First Nations individuals, kin and community being afforded the apparent luxury of choice of professional, ethical and affordable legal (and ancillary service eg: Alternative Dispute Resolution) support. She would also like to see an increase in Culturally Principled Legal Services and Practitioners, and Legal Profession Peak Body understanding or support (or willingness to change) their approach to First Nations professionals and community (beyond the cosmetic RAP aims), and a more egalitarian as opposed to competitive approach by funding providers.

Linda values the RRRR Network for the opportunity to share information, resources and awareness of the issues, collegiality, strength in numbers, and hopes that the recognition of Very Remote communities by the network will create dialogue and attention to the plight of First Nations people living in very remote areas.

Cheryll Rosales is a Solicitor working with Uniting Communities Law Centre (UCLC) in South Australia, for the Disability Advocacy Service. UCLC operates under the umbrella of Uniting Communities (UC), which is a not-for profit community services organisation working alongside more than 80,000 South Australians each year to reduce inequality, improve wellbeing, overcome disadvantage and support people

14 THE BULLETIN July 2022

to live the best lives they can. They value diversity and are committed to providing respectful, accessible services.

UCLC provides generalist legal advice to those who live in the central, eastern and hills suburbs of Adelaide as well as state-wide legal and advocacy services in the areas of Social Security law (Centrelink), Consumer Credit, Elder Abuse, Disability Advocacy (NDIS access and reviews) and mediation.

Cheryl describes the biggest challenges UCLC lawyers have seen is that those who live in regional, remote or very remote areas of South Australia have limited knowledge about the existence of services that could be of assistance to them. “Exacerbated by the pandemic, our services have been unable to travel to the regions to get to know the communities, speak to them about what they perceive to be their needs and support them in a way they would like to be supported. Whilst we provide services and advice by phone or via video conference to these areas, it has not allowed us to build relationships or trust in the community. As a result of not having relationships in the regions we have been limited in our ability to assist people access supports and services they may be entitled to.”

UCLC has joined the RRRR Network to form relationships, gain the trust of those who live regionally and assure them that they do not have to live in Adelaide to receive assistance. They hope to become a visible part of the regions and fulfill the purpose of their state-wide services and actually provide services right across the State!

Law Council of Australia, National Strategic Plan - Rural, Regional and Remote Lawyers and Communities In 2017-18 the Law Council of Australia undertook a wide-ranging national review into the state of access to justice in Australia – known as the Justice Project.2 Its focus was on justice barriers facing those with significant social and economic disadvantage, as well as identifying what is working to reduce those barriers. Rural, Regional and Remote (RRR) Australians were amongst those considered a priority group.

The full Report was published in August 2018, with a separate report detailing the findings in relation to Rural, Regional and Remote (RRR) Australians.3 Alarmingly, despite the Report being published nearly 4 years ago, very little

appears to have improved. The same issues identified in the Report have been highlighted by our members as ongoing concerns, as can be seen above.

The common threads between our member accounts and the Justice Report are: • Cost, distance and lack of public transport, poor technological access and/or capability are common access to justice barriers.

• There are significant concerns regarding levels of unmet legal need particularly inland and more remote communities, with some regions being critically underserviced.

• Difficulties in recruiting and retaining local lawyers which imposes additional cost and distance burdens on residents, who need to travel further to find help, or miss out altogether.

• With the increase in the use of technology service delivery, RRRR residents are more likely to be digitally excluded.

• A decline in local court circuit services in RRRR communities significantly exacerbates distance, transport and cost barriers for residents. Some people may give up on attending court despite the personal costs and in some cases the delay in having their matter heard effectively means that their case is already lost.

• Certain groups of people are particularly under-represented, including people living in very remote areas and Aboriginal and Torres Strait Islander people.

• The main barriers constraining RRRR Australians from accessing justice are financial costs, distance and transport, problems accessing technology, and limited awareness of services available.

• Services are underfunded, with funding calculated “per capita” in particular geographical areas rather than on the actual cost of providing the service, including travel costs.

The RRRR Network is pleased to note that the Law Council has taken on board the findings of the Justice Report, and in November 2020 it produced its National Strategic Plan4 to address the challenges faced by RRRR lawyers and the communities they serve, including, but not limited to:

LAW IN THE COMMUNITY

•

difficulties in recruiting and retaining lawyers, and ensuring succession plans; • general shortages of lawyers in RRR areas; • conflict of interest problems due to scarcity of locally available lawyers; and • scarce and over-stretched legal assistance services.

In March 2021, the Law Council of Australia officially launched the Rural, Regional and Remote (RRR) National Strategic Plan 2021-2023.5 Many very good recommendations were made, and it is hoped that these will be followed through and supported by adequate funding and resources.

The RRRR Network is keen to collaborate with the Law Council for discussion on progress since the National Strategic Plan was launched.

Country Cabinet, South Australia RRRR members are excited to learn of the new “Country Cabinet” in South

Australia, which is an opportunity for The Premier, government ministers and chief executives to spend time visiting people, businesses and organisations across each region, to gain a better understanding of the day-to-day experiences of people living, working and doing business in South Australia, through open communication between government and community.

RRRR members in South Australia are looking forward participating in the Country Cabinet to have some input into the policies, projects, services and funding the government offers to South Australian RRRR communities for access to justice and related support services.

On behalf of the National Regional, Rural, Remote and Very Remote (RRRR) Community Legal Network, thanks to Anne Lewis (Director of the North Queensland Women’s Legal Service), Holly McCoy (Solicitor, Community Justice Services of South Australia), Linda Ryle (Chairperson of the Board of

Directors, Aboriginal Family Legal Service Southern Queensland), and Cheryll Rosales (Solicitor, Uniting Communities Law Centre (UCLC) in South Australia) for your invaluable contributions.

Michelle Ford is the managing lawyer at WestSide Community Lawyers, which has offices in Hindmarsh (servicing Adelaide’s West), and Port Pirie (servicing the Mid North and Outback regions). B Endnotes 1 ALRC Report 133 pg 75, para 2.76 https:// www.alrc.gov.au/wp-content/uploads/2019/08/ final_report_133_amended1.pdf 2 The Justice Project Final Report https://www. lawcouncil.asn.au/justice-project/final-report 3 The Justice Report Final Report Part 1 https:// www.lawcouncil.asn.au/files/web-pdf/Justice%20 Project/Final%20Report/Rural%20Regional%20 and%20Remote%20%28RRR%29%20 Australians%20%28Part%201%29.pdf 4 National Strategic Plan https://www.lawcouncil. asn.au/files/pdf/policy-statement/RRR_NSP.pdf 5 https://www.lawcouncil.asn.au/rrr-law

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

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

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

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

Applications for the Fellowship are now invited and will close on 30 SEPTEMBER 2022.

Application criteria and general information can be obtained from the Foundation as follows: www.lawfoundationsa.com.au OR The Executive Officer, Law Foundation of South Australia Incorporated July 2022 THE BULLETIN 15 PO Box 6381, Halifax Street ADELAIDE SA 5000 Ph 0429 266 611

YOUNG LAWYERS

Sold-out Young Professionals Gala hits the right vibes DAISY MACLEOD, COWELL CLARKE, MEGHAN FITZPATRICK, JONES HARLEY TOOLE AND MIKAYLA WILSON, SEDSMAN LEGAL

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he 2022 Young Professionals’ Gala was held on Friday, 20 May at Chateau Apollo. The sold-out event saw over 220 young lawyers and professionals in attendance and enjoying a night of networking, free flowing champagne, and hours of dancing. The night ran seamlessly thanks to the extremely helpful staff of Chateau Apollo and assistance from the Committee’s Society Representative, Kate Walkley. A highlight of the night was the talented DJ Tania Smith of ‘Choonsandmoovz’ who, due to popular demand, played for an extra hour after the official ending time of the event (and of course, it would not have been a young professionals gala without ending the night with Horses). A big thank you to Tania for keeping the “vibes” high all night (as the young ones say...). The Young Lawyers’ Committee would like to thank our major sponsor, Burgess Paluch Legal Recruitment for their continued support. A special thanks also to Chateau Apollo for their hospitality on the night.

Tiah Brooks (left), Meghan Fitzpatrick, Lucy Schapel, Julia Welnter, Daisy Macleod and Mikayla Wilson

Rebecca Scarabotti (left), Philippa Ewens, Timisha Ward, Libbee Coulter, and Emma De Favari

Back row - Brittany Law (left), Vageli Dimou, Mikayla Golding Ciara Fanning-Walsh and Ella Cameron; front row – Kassandra Girolamo and Tyson Leung

Back row - Jackson Jury, Richard Hopkin, Joel Lisk, Thomas Hill, Zac Mizgalski, and Matthew Del Corso; Front row - Karishma D’Souza (left) and Carlie Frantzis.

16 THE BULLETIN July 2022

Julian Amato (left), Patrick Kerin and Luke Typek

Jake Hammond, Hamish Hill and Marcus Walker

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LAW IN THE COMMUNITY

Bridging community and law: The role of the community lawyer DHARANI RANA, COORDINATOR AND SOLICITOR, HOMELESS LEGAL AT JUSTICENET SA

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ommunity lawyering is not an instinctive skill1 acquired by lawyers throughout the course of law school or traditional private practice. Although community lawyering does involve standard lawyering tasks (e.g. providing legal advice, having knowledge of the law and legal processes, research), it also requires different types of skills to effectively communicate with and assist people from different communities.

More often than not, a community lawyer will not belong to the community they are attempting to serve, so it would be sensible to humble ourselves, acknowledge our ignorance and limitations and curb the instinct to take the lead as a lawyer in a situation with a client whose circumstances and priorities are likely completely different from our own. I have seen clients who have come to clinics primarily to vent about their experiences within the justice system, appointments which typically end with clients thanking lawyers for just listening to them rather than giving specific information about lodging a formal complaint. In our fee for service profession, we can err in devaluing this type of work as ‘non-legal’ when it can save society the vast cost of ill-fated proceedings. This also gives community lawyers an early insight into gaps, patterns and injustices within the legal system, all of which are crucial to advocating for policy changes and legislative reform.2 In other instances, clients want affirmation that their plan to handle a particular issue is correct or that self-drafted statements read well rather than wanting a lawyer to take the reins. This ultimately educates and empowers people, assisting them to organise communities and advocate for systemic change rather than relying on lawyers, particularly where funding for community legal services is precarious and lawyers are not always accessible.

Nonetheless, lawyers working in the community need to remain vigilant.

Clients have different needs, sometimes non-legal needs. Ultimately, it is important for a community lawyer to build and maintain relationships with other non-

18 THE BULLETIN July 2022

Dharani Rana provides assistance at a Homeless Legal clinic.

legal community organisations using triaging skills to refer clients to relevant and appropriate services. Health Justice partnerships such as JusticeNet’s Homeless Legal and many others around the country aim to embed this interdependence in their service delivery design by co-locating with a multitude of services and delivering legal assistance at sites which are already familiar to and trusted by clients.

Community lawyers contribute to community development and empowerment by helping people understand their legal rights, sharing knowledge and information and providing legal assistance where possible.3 Theoretically, in a truly representative and thriving democracy, there would be no need for a bridge between community and the law. But until this is achieved, funding for community lawyers is vital4 so that these organisations continue to support clients through traditional legal work and empowering clients to advocate for themselves and their communities with the aim of creating systemic change.

Skills learned in community lawyering are transferrable interpersonal skills which seek to centre humanity and service at the core of our profession. They are useful skills to have at any stage in a career. One of the joys of being a community lawyer is seeing the life-changing impact your

assistance can have on a person who would have otherwise gone without help due to systemic barriers. We love seeing lawyers who volunteer at our clinics feeling a little more connected to the community and a whole lot more motivated about the good you can do by being a lawyer.

Homeless Legal is a discrete task assistance service running weekly clinics out of Hutt Street Centre, Catherine House, Baptist Care and SACAT. JusticeNet’s current referral partners in this service are MinterEllison, Dentons, Gilchrist Connell and JWS. To refer a client, get involved with the clinics or attend a Homeless Legal training session, please contact Dharani Rana at hlegal@ justicenet.org.au or (08) 8410 2280. B Endnotes 1 Tammi Wong, ‘Race-Conscious Community Lawyering: Practicing Outside the Box’ [2008] (July-August) Clearinghouse Review Journal of Poverty Law and Policy 165, 166.

2 Luz Herrera, ‘Community Law Practice’ (2019) 1 (Winter) Daedalus, the Journal of the American Academy of Arts & Sciences 106, 111.

3 Luz Herrera, ‘Community Law Practice’ (2019) 1 (Winter) Daedalus, the Journal of the American Academy of Arts & Sciences 106, 107.

4 See, eg, Lauren Croft, ‘LCA president: “It’s important that justice remains human-centred”’, LawyersWeekly (Online, 3 February 2022) <https://www.lawyersweekly.com.au/ biglaw/33546-lca-president-it-s-important-thatjustice-remains-human-c entered>.

FEATURE

Spreading the word: SA laws in 14 languages GABRIELLE CANNY, CEO OF THE LEGAL SERVICES COMMISSION

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s lawyers, we are sometimes accused of speaking a strange and baffling language. And for new migrants, that legal lingo can seem especially impenetrable.

To help migrants understand essential elements of the law, a new range of legal publications are being produced by the Legal Services Commission with a grant from the Law Foundation of SA. These guides can also support the work of legal practitioners who work with CALD clients.

The Law For You guides will be available in 14 languages and that is a first in South Australia; never before have SA legal publications been delivered in so many languages.

New migrant communities played a key role in the creation of the guides and the selection of their content. The guides cover major life events and common legal issues including renting a home, buying a car, getting married or dealing with a car accident. They also look at topics such as raising a family, workers’ rights, dealing with police and fines, separation and divorce, family violence, and purchasing goods or services.

The guides are in languages including Urdu, Khmer, Spanish, Thai, Arabic, Burmese, Mandarin Chinese, Dari, English, Hindi, Nepali, Persian, Swahili and Vietnamese.

These publications are noteworthy for their simplicity and lack of legal jargon – but it was challenging to determine the level of detail we included in them. As lawyers, we often want to give the most comprehensive legal outline to clients.

But in this situation, we needed to strip things back to the most essential points to give migrants an accessible overview that introduces them to key aspects of the law.

The first iteration of the Law For You publications was produced in 2014 and, with funding from the Law Foundation.

Rhe guides are now being substantially revised and translated into a number of additional languages (including Urdu, Khmer, Spanish and Thai). The guides are part of the Commission’s Migrant Information and Legal Education program that has reached nearly 50,000 people since it was established in 2004.

It empowers people from new and emerging communities to achieve greater self-reliance and social mobility through improved awareness of their rights and responsibilities under Australian law.

The Legal Services Commission provides legal information to all South Australians - and that must include those for whom English is not their first language. In their first years of settlement, they often have limited opportunities to

The Law For You booklets give new migrants an overview of key laws and can also support the work of legal practitioners who work with CALD clients.

understand and learn about Australian laws. They face language barriers and a lack of knowledge about where to turn to get help with legal issues at an early stage.

The Law for You guides respond to those challenges and can be life changing. They give new migrants a ‘take home’ package of information that they can continue to refer to in their own homes and at times of legal difficulty.

The new publications are being produced by our Community Legal Education unit and will be available in coming months on the Commission’s website www.lsc.sa.gov.au and in hardcopy. B

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LAW IN THE COMMUNITY

Giving back to the community: Two lawyers explain why volunteering means so much to them

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ore than 100 years ago, during World War I, the Law Society of South Australia administered the Red Cross Information Bureau out of the Verco building on North Tce (incidentally, the current Law Society premises is behind the Verco Building’s façade). A significant portion of the legal profession put their hand up to volunteer for the service, which entailed lawyers fielding requests from loved ones seeking information on missing South Australians who had been fighting overseas.

This task particularly suited lawyers as it involved extensive investigations to search for facts amid a maze of misinformation, logistical obstacles, and the fog of war.

Looking back at the history of community service by lawyers serves as a reminder of the proud legacy of pro bono work in the legal profession.

Even a much more recent review of some of the Law Society’s Justice Award recipients, who are acknowledged annually for their outstanding service to access to justice in the community, reveals an enduring commitment to helping people in need.

Lawyers do have a unique set of skills which, combined with an education rooted in principles of justice and equality, seems to engender a sense of duty to use that expertise to serve others. In a recent Law Society survey, 82% of respondents reported that they engage in pro bono work, averaging about 6.3 hours of pro bono work per month.

For this special community edition, we spoke to two lawyers who, while they have a very busy day job, contribute an extraordinary amount to the community.

Alice Tester, a solicitor at Roach Corporate Law, and Will Gray, who has recently set up his own practice after several years working as a solicitor in mid-sized law firms, have generously given what little spare time they have to discuss their volunteering activities, why they choose to volunteer, and what they get out of serving the community.

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relationship with Coolock House, which provides safe and secure temporary housing for families. Our firm is one of the collection points for various household items that we then deliver to Coolock House for the families there. We have delivered a couple of times, but we are always looking for more donations! We are happy to provide the “wish list of items” from Coolock House if anyone is interested. We have also shared this on our firm’s Facebook page.

Alice Tester (middle) at a Rotary sausage sizzle

ALICE TESTER How did you and your firm become involved in Rotary?

We initially reached out to Rotary as the firm’s founding director, Daniel Roach, had connections with others who were in the Rotary Club of Seaford. I also have a long history of involvement in various community and charity groups, and it seemed a good fit! It flowed naturally from there and as a member I attend Club meetings and then at one Club meeting I put up my hand for a board position and I am now involved in that side of things in the Club too.

What kind of community activities to you do as part of Rotary?

The community activities I have been involved in so far with Rotary include fundraising BBQs at Bunnings Seaford, cleaning up the Seaford Wetlands, and collecting and delivering various household items to Coolock House. We are also involved in raising money for the building of a medical facility in Mbale, Uganda.

The projects therefore range from local community to international causes. There are so many different causes and projects that the Club is involved in and it’s going to be exciting to be involved in those further projects moving forward.

Can you tell us about the service for domestic violence women that you are involved in?

The Rotary Club of Seaford has a

You are heading up a walkathon to raise money for bowel cancer in memory of Daniel Roach. Can you please tell us a little bit about Daniel?

As part of our corporate membership with the Rotary Club of Seaford, the firm is in the process of organising its own project to run through the Club. We have talked about organising something in memory of Daniel.

Daniel was an amazing person and boss. I will always appreciate his patience and teachings and guidance when I was a new grad. He also had a great sense of humour. He is terribly missed.

As Daniel was one of those people who would go for a run before work, we thought a walkathon would be a good idea. Here we would be raising money for a charity involved in cancer research or similar. We are still planning and organising however and will send out details when the project is more finalised!

You are the vice-president of the Southern United Netball Association.

What does this involve?

In my role as vice-president of SUNA, I assist with certain communications and meetings with clubs and members, review internal regulatory and policy documents, and attend various community events put on by SUNA such as the ANZAC annual match and the Carnivals where many clubs and teams come to participate and play netball. It has been a great role and I have developed some great relationships with others in the community.

LAW IN THE COMMUNITY

What motivates you to do so much community work?

I haven’t really thought about this before – it’s just something I’m drawn to – probably reflective of my upbringing and values I have seen around me including from my Mum and Nana. It is important to recognise the privilege you may have, and not everyone is so lucky – we need to recognise that and help others but also listen to them and ask them what they need.

How do you manage your work and volunteer commitments (and other commitments)?

I think it is about deciding what are the priorities in your life and making time for those priorities.

Is your firm supportive of you being so heavily involved in community organisations and activities?

They definitely are – we are all encouraged and are active in the community in various ways and roles, and we recognise the importance of this and of giving back.

What would you say to people thinking about putting their hand up to volunteer in the community?

Everyone has a lot going on in their lives, with work, family, and other commitments, however even if you can spare an hour a fortnight or even a month, you can still contribute and help the many good causes around your community and even interstate and internationally. There is such an amazing network of volunteers who do an amazing job and if everyone puts a little time in it’s amazing what can be achieved.

Will Gray (right) at the SA Racquetball Championships.

WILL GRAY How did you get involved with Salvation Army’s will drafting service?

Through my previous employer, Camatta Lempens, who were a long-term supporter of the service. As a junior in the Wills and Estates team at the time back in 2015-16, I had the opportunity to assist on several occasions, and have continued to do so ever since.

Can you tell us a bit about the experience of writing pro bono wills, The most common clients are older couples who are cash poor, and for whom the service provides an opportunity to access a lawyer when they otherwise may not have been able to do so. We also do assist single parents, those without stable housing and other struggling people.

What makes the pro bono wills service such a valuable service?

Many of these clients would not have accessed Estate planning services without such an offering, and the first meeting occurs at a Salvation Army venue, which can be a safe space for some of the people we meet. It makes the law accessible.

Would you recommend other lawyers consider being involved in services like the Salvation Army’s?

Absolutely, and the man to contact is John Tobin, who would love to hear from lawyers keen to be involved. I also assist with the Cancer Council on a pro bono basis and they too are often in need of volunteer Solicitors. My new firm, Gray Matters Legal, has signed up to the National Pro Bono target of 35 hours per year year which really is a minor commitment in the grand scheme of things, given it is less than 1 hour per week. I certainly intend to better that by some margin and am hopeful of at least 100 hours per year, which still doesn’t seem enough!

What does your role as President of Campbelltown Squash Club involve?

A little bit of everything. We field over 25 teams in the Squash SA Pennant competition and have over 150 members, we run regular events both competitive and social, and I assist with coaching and refereeing. I’m very lucky to have a fantastic Committee behind me doing most of the work. We also regularly meet with key stakeholders in an ongoing effort to continue to grow and improve what

we offer. The Campbelltown Council and the “ARC” (our facility) are fantastic and very supportive of us. Particularly in smaller sports, finding committee members is tough, and I think people from a professional environment add value to any committee and I certainly encourage lawyers to help out with their local sports club.

Have you been able to put your legal skills to good use as President?

Perhaps more so quasi-legal skills: active listening, patience and mediating potential disputes are certainly of assistance when volunteering in sport.

I have also assisted Squash SA with Disciplinary Tribunals and a legal background certainly assisted with this.

How did you get into coaching and what has that experience been like?

I was captain of squash in year 12 at school, and was asked by the coordinator to come back the following year to look after the division 1 boys the following year.

I’ve never looked back and am now in my 15th year of coaching. It’s a great way to give back and I keep saying I’ll only stop if I don’t enjoy it, which hasn’t happened yet!

I understand you play squash as well.

What is it about squash that you particularly enjoy?

Initially it was just to play with friends, and I suppose I accidentally became a good player by enjoying it so much and wanting to play all the time, and now in a selffulfilling prophecy one of the reasons I love it is because I can play it well and I’ve had the opportunity to play a few professional tournaments in SA and even managed a (lucky) win against a player then ranked in the top 250. I love the high intensity and the split-second tactical decisions, but more importantly I have formed so many close friendships through the sport. It’s a fantastic community to be a part of.

How do you manage your work and volunteer commitments (and other commitments)?

With great difficulty! I have been fortunate to have always been supported in my sporting and volunteering endeavours by my employers and now running my own firm allows me to commit more time to these other commitments. I like to be busy - a good day for me will always consist of some form of exercise and something social. B July 2022 THE BULLETIN

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EVENTS

Walk for Justice raises more than $80,000 REBECCA ROSS, CEO & PRINCIPAL SOLICITOR, JUSTICENET SA

T

he Walk for Justice is a triple pronged event: drawing attention to the importance of access to justice (A2J), signifying the important role pro bono publico work done by lawyers plays in A2J, and raising funds for the public interest law clearing houses (PILCH)1 around the country.

National Pro Bono Day has long been a fixture in the Australian Law Week celebrations and marked by Walks for Justice across the country. This year National Pro Bono Day was held on 17 May 2022 and saw the return of the inperson Walk for Justice in South Australia (SA) after a two-year hiatus. JusticeNet SA has run the SA event since its inception as the state’s PILCH in 2008, but in 2020 it went virtual in the face of the pandemic and in 2021 was not held at all.

After coming into this role in late 2021, the question I was asked most was “will the Walk for Justice be coming back?”. This is a testament to how unique the event is in the way it involves all facets of the justice system: community lawyers, private lawyers, government lawyers, in-house lawyers, paralegals, politicians, government officials, allied-legal roles, judges and the people we serve.

The record-breaking success of this year’s Walk for Justice with over 450 walkers and raising just over $80,000 reflects the goodwill there is in South Australia to stride forward together for those in need. The result has spurred tremendous confidence in what can be achieved in the justice space in SA given the altruism (and fitness) of those in power.

National Law Week’s core purpose is well summarised on the NSW Law Week website as an ‘annual festival that is all about creating greater access to justice for Australians’ (www.lawweeknsw.org. au). This might seem like an aspirational or noble aim, but its importance has been

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enshrined in UN sustainable development goals (SDGs), as Goal 16: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”2.

Goal 16 is one of three UN SDGs that form JusticeNet’s raison d’ être, the other two being End Poverty (SDG 1) and Reduce Inequalities (SDG 10).

The goal of the SDGs is to create a shared blueprint for peace and prosperity for people and the planet, now and into the future3. The fact Goal 16 is included is a crucial reminder for those of us working in the justice arena that we are part of a social ecosystem which needs endless tending so as not to be taken for granted.

To underscore how crucial this is at the moment, the central topic of the 2022 World Justice Forum was the decline in the rule of law and how to better support SDG 16. This is an annual event bringing together participants from 116 countries to learn, to collaborate and strategise on how to advance Equal Rights, Anticorruption, Open Government and Access to Justice. They were particularly focussed on glaring new statistic: ‘Almost 85% of the world’s population now live in a country where rule of law is declining, according to the World Justice Project 2021 Rule of Law Index. The COVID-19 pandemic exacerbated these trends, including rising authoritarianism, declining civic space, delayed justice, and other longstanding governance weaknesses.’4 The World Justice Forum attendance list is a catalogue of global justice rockstars; Legal Empowerment Fund Director Atieno Odhiambo, The Hague Institute for Innovation of Law (HiiL) CEO Sam Muller, UN High

Commissioner for Human Rights Michelle Bachelet, Praxis Conflict Centre CEO Christine Birabwa-Nsubuga and many more5.

It should be noted that in the lineup this year were a number of large technology companies, a truth the justice system does not always welcome but is a modern day reality. It is an interesting barometer for the future to see the projects which were awarded the winners of this year’s World Justice Challenge, with three of the five prizes this year awarded to legal technology innovations6.

Adequately supported and appropriately directed pro bono work is one tried and tested way to address SDG 167.

The events of the World Justice Forum this year show us that now more than ever, those of us in the legal profession must do what we can to uphold the rule of law. Whilst we (may) remember the ‘warm and fuzzy’ feelings from pro bono, it is important to remember A2J is vitally important not only for equality but social prosperity8.

A most heartfelt thanks to those who either came along or supported from afar, this year’s Walk for Justice. The team at JusticeNet are buoyed by the generosity and vibrancy of the A2J community in South Australia. The purple sea of people walking along the banks of the Karrawirra Pari, kept us in-step with the beat of global justice. So, to answer the perennial question, ‘Yes, the Walk for Justice is back!’.

In 2021, JusticeNet assisted over 570 people through its programs, conservatively generating $5 million worth of legal work on behalf of disadvantaged South Australian’s. 2022 is already on track to exceed this and we are looking for more referral partners. If you are interested in learning more about pro bono work or joining the JusticeNet pro bono clearing house, please contact JusticeNet at admin@justicenet.org.au or call 0884102280. B

EVENTS

Chief Justice Kourakis cutting the ribbon to open the walk

Top Individual Peta Spyrou (middle) raised $2823, and won a Sunset Catamaran Cruise.

Top student team the AULSS raised $1892 and won a BBQ Buoy on the Torrens

Top team LK Law raised $8380 and won the after works food and drinks package, donated by Simon Bryant and Lot 100 and served by JusticeNet staff

Endnotes 1 For a history of PILCH inception in Australia see: Burchell, Samantha; Hunt, Emma, ‘From conservatism to activism: the evolution of the Public Interest Law Clearing House’ [2003] AltLawJl 2; (2003) 28(1) Alternative Law Journal 8 2 See: ‘Goal 16’, UNDP Sustainable Development Goals | United Nations Development Programme (undp.org) 3 For more information, see: ‘The SDG’s in Action’, UNDP <Sustainable Development Goals | United Nations Development Programme (undp.org)> 4 ‘Leaders to address the global decline of rule of law’, World Justice Forum <Leaders to address the global decline of rule of law (https_ worldjusticeproject.org)> 5 ‘Leaders to address the global decline of rule of law’, World Justice Forum <Leaders to address the global decline of rule of law (https_ worldjusticeproject.org)> 6 See: ‘World Justice Challenge Winners announced in The Hague’ World Justice Forum <World Justice Challenge Winners announced in The Hague | World Justice Project> 7 Nathan Kennedy, ‘Why do pro bono?’ The Lawyers Weekly Show, Issue 128, May 2018 8 For more information see: Australian Pro Bono Centre <Australian Pro Bono Centre | Australian Pro Bono Centre>

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LEGAL INTERPRETATION

Heading in a new direction? SA’s change of position on rules of construction DAVID KELLY , CIVIL LITIGATION COMMITTEE

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n 1 January 2022, the Legislation Interpretation Act 2021 (the 2021 Act) came into effect, repealing and replacing the Acts Interpretation Act 1915 (the 1915 Act). By force of the 2021 Act,1 “section headings” became part of the substantive law, scrapping the approach that the community was previously required to take for more than 100 years prior. This article briefly examines the Parliament’s change of position, and some of its possible implications.

The change of position Section 19(2) of the 1915 Act provided that: “the following do not form part of an Act, subject to any express provision to the contrary: (a) section headings […].”2 As explained in D C Pearce and R S Geddes, Statutory Interpretation in Australia,3 (Pearce and Geddes) the traditional justification for excluding section headings from the analysis was that they are inserted by the draftsperson, and may not have been debated in the Parliament.

However, that policy was reversed by s 19 of the 2021 Act. Section 19(1) provides that: “except as provided in subsection (2), everything appearing in an Act or legislative instrument is part of the Act or instrument”; in turn, s 19(2) sets out the material to which s 19(1) does not apply, none of which includes section headings.4 The change of position on section headings was deliberate. On 6 May 2021, the Legislation Interpretation Bill 2021 (the Bill) was read a second time, the speech in the Upper House recording (underlining added):5 “This is different from the Acts

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Interpretation Act, which provides that section headings […] do not form part of an act […]. This change is the most significant change proposed by the bill.”

The Explanation of Clauses confirmed that:6 “This means, in particular, that section headings will now form part of an Act.” On 26 August 2021, the second reading of the Bill continued in the Lower House, to like effect.7 The Parliament appears not to have expressly identified either the relevant “mischief ” being targeted, or its justification for the reform. However, it is possible to infer that it reflected the assessment that having regard to section headings would enhance, and provide additional guidance to those tasked with, construction. It may also be deduced that the Parliament considered that the Courts had interpreted provisions in a way that differed from how they would have been interpreted had section headings formed part of the text.

Effect of s 19 of the 2021 Act The premise of s 19 of the 2021 Act is that having regard to section headings has the capacity to affect the meaning to be given to at least some provisions. It follows that there may be a need to revisit the authorities dealing with the meaning of provisions that have been construed in accordance with the 1915 Act, namely: • without having regard to section headings as part of the text; and • only having regard to section headings in the event of ambiguity, and then only as possibly informative “extrinsic

material”, which is subject to entirely different principles.8 And, because the 2021 Act preserves the 1915 Act’s extension of the approach taken to section headings in statutes to other “legislative instruments” (as defined),9 the consequences of the reformulation are potentially very wide. In particular, in light of the broad definition of legislative instrument in s 4 of the 2021 Act, the reform may affect the construction of: • regulations; • rules; • by-laws; • proclamations; • notices published in the Gazette or under the Legislation Revision and Publication Act 2002 (the Revision Act); • a code or standard made, approved or adopted under a statute; • any other instrument of a legislative character made or in force under an Act; and • any other instrument prescribed by the Legislation Interpretation Act Regulations 2021.

As the State’s argument in the Court of Appeal in Disorganized Developments Pty Ltd v South Australia10 which concerned the validity of regulations made under the Criminal Law Consolidation Act 1935 (SA) demonstrates, dispute about the meaning of a provision by reference to a section heading continues to be a live issue.

It follows that it will be important to monitor changes to section headings now that they are part of the text. Such changes

LEGAL INTERPRETATION

may be demonstrated by amendments to sexual offences under the Criminal Law Consolidation Act 1935 (SA). For example, in 1994, s 74 provided for the offence of “persistent sexual abuse of a child”. In 2008, further amendments replaced the s 74 offence with a recast version in s 50, headed “persistent sexual exploitation of a child”. Later, in 2017, s 50 was amended again, including changing the heading to: “unlawful sexual relationship with child”.11 Further examples of decided cases where the possible effect of section headings in construction has arisen include: • A Gallo Pty Lt & Ors v Hollowwood Pty Ltd & Ors12 – which concerned the effect of the section heading “Alterations and other interference with the shop” on the ambit of s 38 of the Retail and Commercial Leases Act 1995 (SA); • Jansen & Anor v Salisbury Wrought Iron Works Pty Ltd & Anor13 – which concerned the inconsistency between the section heading of, and operative words in, r 104 of the Magistrates Court (Civil) Rules 1992 (SA); • Pringle v Police14 – which concerned whether use of the word “etc” in the section heading to s 47H of the Road Traffic Act 1961 (SA) meant that s 47H was not-exhaustive, such that the Governor could approve apparatus of a prescribed kind for tests and analyses beyond those set out in the section; and • Yuen v Police15 – which concerned whether a weapon

was a “fighting knife” within the meaning of those words, which were used in a section heading in the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000.

In some cases, the amendment in the 2021 Act could tip the balance.

For example, in Onody v Return to Work Corporation (SA),16 the Full Court considered (in obiter) whether a heading within the “impairment assessment guidelines” made by the Minister under the Return to Work Act 2014 (SA) (i.e., a legislative instrument) was a section heading or a “chapter heading”, and therefore, part of the text.17 Blue J and Stanley J divided on that “constructional choice”.18 Parker J inclined to the view that the heading was not a section heading, and therefore, not part of the guidelines for the purposes of construing them. Had the 2021 Act applied, the section heading would have been part of the guidelines, potentially affecting their meaning, and the outcome for the worker, and conceivably, subsequent cases decided or compromised on the basis of the dicta in Onody.

Beyond the guidelines in Onody, other legislative instruments prepared by the Executive to which s 19 of the 2021 Act would apply include, for example, the “Ministerial building standards” made under the Planning, Development and Infrastructure Act 2016 (SA).19 Many other examples exist.

Section 19 of the 2021 Act would also apply to legislative instruments prepared

by bodies outside of government, such as, for example, the Building Code of Australia, which forms part of the “Building Rules”.20 The meaning of the Building Rules is especially important because they are at the heart of defect claims in residential construction cases, which are frequently litigated.

Could a section heading generate ambiguity?

An unintended consequence of the 2021 Act may be that a section heading could be argued to generate ambiguity in circumstances where under the 1915 Act there was none.

Ragless v Prospect District Council21 illustrates the point. There the Supreme Court had to interpret s 47 of the Town and Development Act 1920 (SA).

Section 47 appeared in a group comprising ss 44 to 49 under the heading “General provisions relating to plans of subdivision and plans of resubdivision.” The heading was relied on by the plaintiff. Albeit not dispositive of the s 47 issue, in examining the various headings throughout the statute Murray CJ observed (underlining added):22 “The first group consists of three sections (22 to 24), with the heading “New roads of streets”. When the contents of these sections are examined, it will be seen that the heading is far from appropriate. […] The plans, however, are not confined to those which shew “new roads or streets”, and therefore, the heading imperfectly describes the contents of the group.”

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INTERPRETATION

A related, proposed amendment The Parliament appears to have anticipated this issue, and proposed a related amendment to try to deal with it by amending s 7(3) of the Revision Act to (underlining added): “provide a mechanism for alteration of any incorrect or inaccurate headings etc that were included in legislation administratively before the enactment of this new provision.”

The second reading of the Bill on 6 May 2021 further explained that (underlining added): “To mitigate any risk that may arise as a result of the change, a savings provision has been added to allow section headings and the like, which had not previously formed part of the act and had not been enacted by the parliament, to be amended once administratively. The amendment would be undertaken by or under the supervision of the Commissioner for Legislation Revision and Publication.

This is to ensure any errors in headings that had been inserted administratively can be corrected without having to undertake legislative amendments.”

What is an “incorrect or inaccurate” section heading?

As enacted, however, no such provision premised on a section heading being “incorrect” or “inaccurate” found voice. Rather, Sch 1 Pt 3 cl 11 of the 2021 Act amended s 7(3) of the Revision Act to provide that: “material that, immediately before the commencement of [s 19 of the 2021 Act], appeared in legislation, or in a Bill before the Parliament, but did not form part of the legislation or Bill may be omitted or varied when the legislation is revised after the commencement of that section (but may not be so omitted or varied more than once).”

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One possible reason for not premising that remedial mechanism upon a section heading being incorrect or inaccurate may have reflected, in the case of ambiguity, the inherent difficulty of demonstrating that a section heading is incorrect or inaccurate.

In any case, even if a section heading was so varied, room may be left to argue that the varied section heading still conflicts with or otherwise affects the interpretation of the substantive text in issue.

Additionally, and more fundamentally, solving the problem by omission of a section heading seems incongruous with the intended inclusion of section headings, which was “the most significant change” the 2021 Act made.

Moreover, expressly allowing administrative alteration to a section heading seems to entrench the argument against having regard to section headings referenced by Pearce and Geddes on the basis of the lack of exposure to Parliamentary scrutiny.

There may be also attempts to challenge or review the power, or exercise of the power, to omit or vary (and thereby “impliedly repeal”) section headings on the basis that as from 1 January 2021 they are “part of ” the text – particularly in a case where the substantive provisions may be drafted so as to depend upon the express words of the section heading (e.g., the effect of “etc” contended for in Pringle).

Implications Whilst it is not suggested that the change of position from the 1915 Act to the 2021 Act as to section headings being part of the text of Acts and legislative instruments is “wrong”, it will require the

profession to take great care to ensure that existing understandings of their proper construction remains good. B Endnotes 1 Section 19.

2 With minor exceptions, that approach prevails at Cth level (Acts Interpretation Act 1901 (Cth), 13(3)) and in NSW (Interpretation Act 1987 (NSW), s 35(2)), NT (Interpretation Act 1987 (NT), s 55(2)), Tas (Acts Interpretation Act 1931 (Tas), s 6(4)), Vic (Interpretation of Legislation Act 1984 (Vic), s 36(3)), and WA (Interpretation Act 1984 (WA), s 32(1)).

3 LexisNexis, 7th ed, 2011, [1.27] and [4.54].

4 With minor exceptions, this approach prevails in ACT (Legislation Act 2001 (ACT), s 126(2)) and Qld (Acts Interpretation Act 1954 (Qld), s 14(2)).

5 South Australia, Parliamentary Debates, Legislative Council, 6 May 2021, 3364 and following.

6 South Australia, Parliamentary Debates, Legislative Council, 6 May 2021, 3365 and following.

7 South Australia, Parliamentary Debates, House of Assembly, 26 August 2021, 6998 and following.

8 2021 Act, s 16. See Redman v Return to Work Corporation (SA) [2021] SASCA 25, [100]-[112] (Livesey JA). See further Pearce and Geddes, [3.13][3.11], [3.15]-[3.28].

9 1915 Act, s 14A. 2021 Act, s 3.

10 [2022] SASCA 6, [44] (Livesey P).

11 The changes to the offence, including the terminology of the heading of the offence, were recently debated in the Lower House during the Second Reading of the Statutes Amendment (Child Sex Offences) Bill 2021: Parliamentary Debates, Legislative Council, 19 May 2021, 306.

12 [2012] SASC 187, [37] and [47] (Nicholson J).

13 [2007] SASC 73, [38] (Anderson J).

14 [2021] SASCA 52, [57] (Kelly P, Lovell and Doyle JJA).

15 [2012] SASC 149, [94] (White J).

16 (2019) 133 SASR 109.

17 Onody v Return to Work Corporation (SA) (2019) 133 SASR 109, [118] (Stanley J).

18 Onody v Return to Work Corporation (SA) (2019) 133 SASR 109, [50], [63], [65], [69], [73] (Stanley J).

19 Section 80.

20 Planning, Development and Infrastructure Act, ss 3(1), 79.

21 [1922] SASR 299.

22 Ragless v Prospect District Council [1922] SASR 299, 307.

FROM THE CONDUCT COMMISSIONER

Communication and money: Outgoing Conduct Commissioner reflects on the main causes of complaints GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

I

will soon be moving on from my role as Legal Profession Conduct Commissioner.

My last day will be 31 July 2022.

For my final article for the Bulletin, I will be reflecting on a few things from my time as Commissioner.

The first thing I will say is that it seems to me that there are two main reasons that complaints are made by clients. The first is poor communication. The second is money.

From a communication point of view, the problems are usually one of the following: • not giving advice that is sufficiently clear, or at least sufficiently understood by the client; • not managing a client’s expectations – in any number of respects (eg as to timing of the matter, timing as to something you have said you will do, the outcome of the matter, or your costs); • simply not responding in a timely fashion (or, often, at all) to a client’s emails or phone calls.

It’s important to remember that many clients who complain to my office are those who are involved in a legal matter for the first time. They are not in any way experienced in what the legal system has in store for them! They simply don’t understand the system, they don’t know how long something is meant to take, and they certainly don’t appreciate how busy you are!

So, it’s important that you: • answer a client’s calls and/or emails – even if just to say you’re busy or away and that you’ll get back to them as soon as you can;

•

tell a client if there is going to be a delay in what you’ve said you’ll do, and why; • don’t pretend you have done something for a client when you actually haven’t done it yet.

And now let’s talk money. Because some of you aren’t very good at doing that with your clients – in fact, some of you are terrible at it!

What you are obliged to tell your client about costs is set out in Schedule 3 of the Legal Practitioners Act. At its simplest, and yet at its most important, for most clients you MUST: • estimate the total legal costs (or a range of estimates of the total legal costs) and explain the major variables that will affect the calculation of those costs; and • tell the client of any substantial change to that estimate (or range of estimates) as soon as is reasonably practicable after you become aware of that change.

If you don’t comply with that obligation then you run a number of significant risks: • the client doesn’t have to pay your fees (unless you first have them adjudicated by the Supreme Court); • you therefore (and quite obviously) can’t sue the client to recover your fees (unless you first have them adjudicated by the Supreme Court); • you may have engaged in misconduct.

So, let’s just imagine that you agree that most of those outcomes are bad. The good thing is that to avoid them, all you have to do is comply with the Legal Practitioners Act!!!

Sorry for the sarcasm, but it is warranted. I’m sure I only see the tip of the iceberg, but there are many lawyers who still don’t do what they need to do in this respect. And I’m sure that they know

they should! Is it just embarrassment at how much lawyers charge? Is it that they think the client won’t continue to instruct them if they actually know how much it’s likely to cost?

If that’s the case, then please get over it! The downside is much worse, and your client will always appreciate full costs disclosure (ie the truth!!!) so that he or she can make a fully informed decision about how to proceed.

So, on to a slightly different, but related, topic. After 8.5 years in this role, what are my impressions of the profession generally?

I still admire it enormously, as I always have. As you all know, the profession provides a critical service to the community.

Everyone works hard. Many of you do work for clients who are disadvantaged in any number of ways. But many of you also do work for clients who are extremely challenging, and who don’t understand what you are trying to do for them. Some of you need to do better at explaining things to those clients (although I do accept that some of them can’t be told!).

And I am, frankly, staggered at how many of you still don’t comply with the costs disclosure requirements. In the first five years or so, I made on average about 20 misconduct findings a year. In the last few years that has increased to the low 30s, with that increase being directly attributable to Schedule 3 breaches.

Some might think that that’s not too bad in a profession that comprises more than 4,000 people. But it’s still too many, and just getting the basics right about communication and money would undoubtedly mean a lot fewer unhappy clients than there are now. B July 2022 THE BULLETIN

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TAX FILES

Trust issues? There may be a solution…

BRIONY HUTCHENS, DW FOX TUCKER LAWYERS

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rusts have become one of the most popular private investment vehicles for families in Australia, with over 900,000 reported to be in existence. While they enable great flexibility, they can also be fraught with problems when they are not administered properly or their terms overlooked. The recent Victorian Supreme Court case of McGowan and Valentini Trusts [2021] VSC 154 (McGowan) is an excellent example of things that can go wrong, but also of the fact that these problems need not be fatal to the effective operation of the trust.

Briefly, the facts of the McGowan case were as follows: • By separate deeds dated 14 February, 1977 Giuseppe and Norma Valentini created two trusts, one for each of their children Anna and Peter (1977 Deeds).

The trustee of each trust was named in the deeds to be I.N. & G. Nominees Pty Ltd (ING) and the deeds were signed by Giuseppe and Norma on behalf of ING as its directors.

• ING was not incorporated until 25 September, 1978, and therefore was not in fact in existence as at the date of the 1977 Deeds.

• In November, 1977, Giuseppe and Norma purchased land at Victoria Street, North Geelong. The land was registered in the name of Giuseppe and Norma jointly and subsequently passed to Norma on the death of Giuseppe under a survivorship application.

• At all times, the land was recorded as an asset of the trusts despite never being transferred into the name of ING and despite there not being any express declaration that the land was purchased by Giuseppe and Norma on behalf of the trusts.

• The trusts, on their terms, vested absolutely in Anna and Peter when they each turned 30 years old, being 1 January, 1988 in the case of Anna and 14 February, 1991 in the case of Peter.

• On 23 June, 1991, being after the date that the trusts, on their terms, vested,

28 THE BULLETIN July 2022

Deeds were executed by the settlor, ING (as trustee) and Peter and Anna (as beneficiaries) purporting to vary the terms of the trusts to, amongst other things, extend the vesting date and widen the class of beneficiaries (1991 Deeds).

• ING has at all times continued to administer the trusts and, from the date of the 1991 Deeds, has administered the trusts in accordance with the terms as amended by those Deeds, including making distributions to beneficiaries who only qualified as beneficiaries following the 1991 Deeds.

The facts raise a number of questions that the Court was required to consider, including: • Whether the trusts were validly established by the 1977 Deeds even though the trustee was not in existence at that time.

• Whether the Victoria Street land was an asset of the trusts even though the land was purchased and held in the name of Giuseppe and Norma, not in the name of ING, and there was no express declaration that they did so on behalf of the trusts.

• Whether the trusts came to an end when they vested in accordance with the terms of the 1977 Deeds, or whether they continued beyond that date.

• Whether the 1991 Deeds were an effective exercise of the amendment power contained in the 1977 Deeds (given that the trusts had, on the terms of the 1977 Deeds, already vested absolutely in the beneficiaries).

• Whether the 1991 Deeds operated to create new trusts over the trust property.

Each of these issues, both individually and as a whole, created a number of possible consequences for tax purposes, including whether the income and expenses in relation to the properties were properly returned as part of the trust income and taxed to the beneficiaries of the trust, and

whether any capital gains tax consequences occurred on the purported vesting of the trust and/or the possible creation of new trusts pursuant to the 1991 Deeds.

The potential financial impact of these consequences could be significant.

In considering the issues, the Court took a pragmatic approach and in doing so held that: • The trusts were validly settled and created by the 1977 Deeds notwithstanding that the trustee (ING) was not in existence at the time.

• Until ING came into existence, Giuseppe and Norma were the trustees of the trusts, given that in signing the deeds, albeit in the erroneous belief that they were doing so as directors of ING and not in their personal capacity, it can be inferred that they agreed to undertake the role of administering the trusts.

• Upon ING being incorporated, it took over as trustee of the trust in place of Giuseppe and Norma.

• The Victoria Street property, as well as other properties subsequently purchased in the name of ING, were properly assets of the trusts.

Even though there was no express declaration of trust in respect of these properties, and in the case of the Victoria Street property it was not even held in the name of the trustee of the trusts, there was a sufficient body of evidence to support the conclusion that the property was held as an asset of the trusts. This evidence included statements made by Giuseppe and Norma to family members as to the existence of the trust and the properties being held in those trusts, and all available financial statements and tax returns showing the properties as an asset of the trusts.

• The trusts did not come to an end on the original vesting date, but instead continued on the terms contained in the 1977 Deeds until such time as they were wound up.

TAX FILES

•

The 1991 Deeds were a valid exercise of the power of amendment contained in the 1977 Deeds and did not create new trusts. In this regard, it is important to acknowledge that: a. The power of amendment in the 1977 Deeds was a very broad power and, on its words, did not contain any limitation to it being exercised after the trusts had vested in the beneficiaries absolutely. b. Peter and Anna, being the beneficiaries in whom the original trusts vested, consented to the variations. This was important in assisting the Court in overcoming any perceived inconsistency with the power of amendment being capable of being exercised after the trusts had vested. c. The new trusts declared by the 1991 Deeds were consistent in their purpose with the trusts declared by the 1977 Deeds in that they were, broadly, for the benefit of Peter and Anna and their relatives.

As such, the Court found that the substratum, or basic purpose, of the trust had not changed. There was sufficient continuity of trust property, beneficiaries and the constitution of the trusts for it

to be held that the 1991 Deeds effected a continuation of the existing trusts, not the creation of new trusts.

The decision of the Court that the original trusts did not come to an end and that the amendment power was capable of being exercised after the purported vesting of the trusts is particularly interesting given it contradicts the ATO’s statements in Taxation Ruling TR 2018/6 that once the vesting date has passed, the trust vests and the interest of the beneficiaries in the trust become fixed, and the power of amendment cannot be exercised to extend the vesting date of the trust. Whether the Commissioner will review this position in light of the McGown case remains to be seen. If he does, however, it is likely that any scope to amend the deed after the vesting date will depend on the terms of the amendment power and any other relevant facts, such as beneficiary consent, that may be required.

It is not uncommon for many of the issues encountered in the McGowan case to be uncovered by practitioners when undertaking dealings for clients in relation to their trusts, particularly in respect of older trusts settled in the 1970s or 1980s.

There is often a lack of documentation surrounding the acquisition of assets of

these trusts and it is surprisingly common to find assets registered in the name of persons or entities who are not the current trustee of the trust.

The McGowan case is therefore comforting in that it reassures practitioners that these issues are not always fatal.

However, it should be noted that each case revolves around the particular facts of that case and while the McGowan case is encouraging, it does not present clients with a get out of jail free card in all circumstances.

It is clear from the judgment of the Court that the validity of the 1991 Deeds to vary and continue the terms of the original trusts relied heavily on the fact that the amendment power did not, on its terms, prohibit amendments being made after the trust had vested in the original beneficiaries, and the fact that the original beneficiaries consented to the exercise of the power after the vesting.

These factors, and particularly the broad terms of the amendment clause, may not always be present. It does, however, give us hope that there sometimes can be a way forward when these problematic issues are encountered.

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

MEMBERS ON THE MOVE

MEMBERS ON THE MOVE Stephen McEwen QC wishes to advise the profession that he now practices solely as a mediator, from 30 A Market Street, Adelaide.

Enquiries as to fees and availability can be directed to: Email: stevekmcewen@gmail.com Mobile: 0407 554 305

STEPHEN MCEWEN QC July 2022 THE BULLETIN

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CLOUD COMPUTING

An Analysis of the Law Society of South Australia’s Cloud Computing Guidelines: Resilience MARK FERRARETTO, SOLICITOR, EZRA LEGAL

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his is the fourth of five articles that analyse the Law Society’s Cloud Computing Guidelines against candidate cloud systems and on-premises systems.

My thesis is that the caution expressed in the Guidelines should be applied as much to on-premises systems as cloud systems to obtain the best risk profile for a practice’s information systems.

In this article we discuss system resilience.

Resilience This category is broader than the others and comprises more loosely-related topics, being system availability, incident management, data portability and system audits.

When analysing on-premises systems against these categories we find a mixed bag. Most on-premises systems are usually comprised of a single computer, or a single computer for a single purpose (one practice management server for example).

Many on-premises systems also do not have a Business Continuity Process or a Disaster-Recovery Plan. Should a system fail, outages can last for hours or even days. Recovery is usually complex and can be incomplete. For example, data may be recovered to the end of the day before the outage occurred, losing that day’s transactions. Incident management is adhoc. The main advantage of on-premises systems in this context is that practitioners usually have someone to yell at when things go wrong.

Cloud systems generally perform better in this category. Dropbox business claims an availability of 99.9999999% per year. That is an average downtime of 0.03 seconds each year. Google claims a comparatively paltry 99.9%, or 8 hours, of downtime per year, and provides service credit if this metric is not met. Actionstep promises a ‘Recovery Point Objective’, a best-efforts target, of 4 hours for an

30 THE BULLETIN July 2022

Table 4 Resilience

Dropbox

AVAILABILITY

INCIDENT MANAGEMENT

Not specified

AUDIT

DATA PORTABILITY

Not specified

Not specified

Files can be exported.

Files can be exported

Dropbox Business

99.9999999%

Not specified

Access to audit data once per year

Google Workspace

99.9% with service credits

Not specified

Not specified

All data can be exported

Microsoft 365

99.9% with service credits

Will notify user ASAP

Standard auditsfree. Custom audits available

All data can be exported

LEAP

Not specified

Not specified

Not specified

Actionstep

RPO: 5 min RTO: 4 hours

Yes

Not specified

Usually low

Depends on IT provider

Usually none

On Premises

outage and promises to restore data up to 5 minutes before the outage occurred.

From an availability point of view, cloud services win hands-down.

Incident management is usually more structured with cloud providers, although the regimens vary. Microsoft, for example, sends push notifications to Microsoft 365 administrators as soon as an incident occurs.

It also publishes a list of past incidents and resolutions. Dropbox conducts audits on a regular basis, as does Microsoft. Microsoft allows for additional audits to be performed for an additional cost.

Overall, cloud systems are more reliable, available and outages are managed in a more structured and transparent way.

While data portability may seem a nonissue with on-premises systems, a deeper look indicates this may not be the case.

This is particularly so as many practices store their ‘source of truth’ in a practice management system and migrating data out of practice management systems is quite difficult, regardless of whether the practice management system is on premises or cloud-based.

Non-practice management data, such as email and file data is more portable in

Data can be exported on request Request data up to 20 days after termination Depends on software and PMS

the on-premises context as the data does not need to be exported or downloaded.

However, with faster network connections, export of email and file data from most cloud systems is also becoming more convenient.

Verdict Overall, the much greater availability of cloud systems would lead to cloud winning this category. Outages can cost firms thousands of dollars per hour in lost income. The combination of very high availability coupled with stronger incident management and audit procedures provided by cloud services offset the perceived control offered by keeping data on-premises. Most cloud service data is portable, with the exception being the practice management systems.

However, data portability in the practice management system context is an issue that comes with practice management systems themselves, and not necessarily because they are cloud-based.

Cloud takes this category In our next, and final, article we wrap up the analysis and give some thoughts risk, cloud and on-premises systems. B

LAW IN THE COMMUNITY

Urgent investment needed for important justice reinvestment initiative THE HON ROBYN LAYTON AO QC

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iraapendi Wodli is a community-led justice reinvestment project aimed at addressing the high incarceration rates of Aboriginal people from the Port Adelaide/ Enfield area. Justice reinvestment is about investing in local community initiatives that focus on early intervention and prevention, and to address the underlying issues that lead to involvement in the criminal justice system.

This important project began in earnest on 2018 and is a collaboration between the Tiraapendi Wodli Aboriginal leadership group, the local Aboriginal community, Australian Red Cross and Justice Reinvestment SA (JRSA). It aims to reduce imprisonment rates by strengthening the health, safety and lives of Aboriginal families, children and young people. This is achieved by focussing on four major priority areas; the needs of families with school aged children, young people, men, mothers, and adults and young people in contact with police and justice systems.

These needs are delivered using a strength -based approach in a small building referred to as “The Hub”, which has an “open door” policy for Aboriginal people. It is used by more than 350 people per month and some 120 are regular service users.

The types of assistance that Aboriginal people are able to obtain at the Hub include regular monthly programs with culturally connected workshops and information sessions; leadership opportunities and personal development pathways; customised mental health and wellbeing assistance; financial counselling; navigating connections to other services to meet needs; practical customised family stability assistance; housing assistance; work readiness and employment assistance; and first aid training. There is also a regular men’s yarning group that enable and support men’s personal development; information and education sessions; drug and alcohol awareness; individual counselling; “Handy Murras” workshops (also available for women) to develop practical skills such as home repairs; music programs; fitness programs (also available for women and include youth boxing); learner driver accredited workshops (also

available for women and youth). There are also women’s yarning circles that often centre around a variety of creative arts groups as well as a “family tree group” lead by women Elders to trace and share family histories to strengthen cultural connection (also open to men and youth).

Tiraapendi Wodli receives three-way support: non-financial support and advocacy from Justice Reinvestment South Australia (JRSA); funding from the SA Department of Human Services (DHS); and critical support in money and kind by the Australian Red Cross (ARC). There is also additional funding from some small but important philanthropic funds. Tiraapendi Wodli was successful in securing basic funding from the former Liberal Government of $850,000 over two years to ensure the program could continue until 2023. This combined funding enables some full time and part time employees to deliver services at the Hub. Additional person power is provided by a small volunteer group of enthusiastic and dedicated Aboriginal Community Advocates who regularly assist in the delivery of Hub services and contribute to the overall program.

This combined funding is however only enough to cover to cover the

delivery of basic services and does not allow for any stretch programs to meet other important needs, which often do not involve large amounts of money.

By way of illustration, in recent months after much advocacy work, an additional $50,000 has been made available from SA Department of Correctional Services to enable much needed post prison release services to be delivered through the Hub for the next 12 months.

Also urgently being sought is an amount of $50,000 for a period of 12 months commencing July 2022 to fund an independent research body with experience in justice reinvestment projects, to implement a comprehensive, objective and culturally informed research process.

The purpose of this research is to build on project learnings and demonstrate the effectiveness of the Justice Reinvestment project, involve the community in the process, and ensure confidence by documenting its findings. This in turn can be used to attracting ongoing financial support to continue and expand the work of Tiraapendi Wodli. The Project is always seeking person time and funding support.

Please visit the website at http://www. tiraapendiwodli.org.au/. B July 2022 THE BULLETIN

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RISK WATCH

Need to know now? “Last minute” is no excuse for lack of clarity of instructions GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

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he recent NSW case of About Life Pty Ltd v Maddocks Lawyers [2021] NSWSC 1370 is of critical interest to all practitioners who deal in commercial matters. The judgment contains extensive consideration of solicitors’ duties when acting in commercial transactions involving “side deeds” and demonstrates the high standard of care imposed upon practitioners, especially where matters are being dealt with urgently.

THE FACTS The client company (About Life) was successful – to the tune of some $13m – in its claim against the solicitors (Maddocks) who had acted in relation to an assignment of a lease. About Life ran a chain of organic supermarkets but needed, for cash flow purposes, to sell one of its most successful stores (in Double Bay, Sydney). An agreement was reached with a competitor, Harris Farms, for Harris Farms to purchase the Double Bay store and in particular for Harris Farms to take an assignment of the company’s leasehold interest on the Double Bay store.

The Double Bay store was in a prime position in a very good shopping centre and the lease of that store was a valuable commodity.

Some three years prior to the transaction in question the company had however granted a right of first refusal (in what was known as a “side deed”) in relation to any assignment of the lease of the Double Bay store to Woolworths. This was part of a separate transaction in which About Life acquired several small grocery

32 THE BULLETIN July 2022

stores close to Double Bay owned by a subsidiary of Woolworths.

When dealing with the sale to Harris Farms, representatives of About Life had, unfortunately, forgotten about the Woolworths’ right of first refusal and the solicitors for the company did not seek full and timely instructions as to whether any such right existed. Woolworths found out about the impending sale to Harris Farms and successfully sought an injunction restraining the sale on the basis that they had not been given the chance to exercise their right of first refusal.

The circumstances in which Maddocks acted involved some urgency. Maddocks were instructed on 13 April, 2017 which was the day before the Easter weekend.

About Life had received an irrevocable

offer from Harris Farms to buy the Double Bay store for $8m, which offer was open for acceptance until 21 April, 2017.

A draft contract prepared by Harris Farms’ lawyers was provided to Maddocks on Thursday 13 April, 2017 however at that time About Life had not yet agreed the purchase price. On 21 April, 2017 (a Friday) Harris Farms agreed to increase the sale price to $10m which price was accepted by About Life. This was communicated to Maddocks by email from About Life at 9:23 am with the sale to proceed that day.

At 4:37 pm on 21 April, 2017 Maddocks sent an email to the directors of About Life regarding changes to be made to the contract which included the following question:

RISK WATCH

“Are you able to confirm that to the best of your knowledge it [the lease provided to Maddocks] is an accurate and complete copy of the lease? (It appears to be, however if for example there are any side-deeds or variations, then the document is not ‘complete’).”

The principal director of About Life, Ms Phillips, read the email at about the time she was leaving the office to go to her daughter’s 18th birthday celebration. The email did not trigger Ms Phillips’ memory that in 2014 About Life had in fact entered into a side-deed with Woolworths which granted Woolworths a “right of first refusal” should About Life seek to assign its leasehold interest in the Double Bay store.

The sale proceeded on the basis that there were no relevant side-deeds.

Approximately one month later, a representative of Woolworths asked Ms Phillips if About Life had sold the Double Bay store to Harris Farms. This was when Ms Phillips remembered that Woolworths had a right of first refusal to the assignment of the Double Bay lease.

NEGLIGENCE FOUND The Court found that Ms Phillips’ memory would have been triggered had proper instructions been taken from About Life earlier in the transaction rather than late in the afternoon on the day the contract of sale was due to be signed. It was also said by Rees J that “while, in theory, it was not ‘too late’ for About Life to act upon [the] request for instruction, the request was made so late, in urgent circumstances and inadequately explained such

that it was not understood by the client, and obviously so. As a consequence Maddocks did not discharge its duty to the client to protect the client’s interests in the proposed transaction.”

The Judge was therefore critical of the rather elliptical way in which the question of side-deeds was raised, i.e. it was not a direct question (”Are there any side-deeds?”) but merely an enquiry as to whether the entire lease had been provided.

DAMAGES The damages payable by Maddocks were assessed at nearly $16m being “the difference between the trajectory which the company took, being external administration, and the trajectory it would have taken if it had entered into a contract with Woolworths at the outset.

About Life’s damages are the gap between the two trajectories.”

CONTRIBUTORY NEGLIGENCE About Life was found to have failed to take reasonable care of its own interests because, of course, the Directors – in particular Ms Phillips – knew of the sidedeed and had access to it as part of the company’s records. Rees J assessed the company’s contributory negligence at 20%.

Her Honour found that where a company is proposing to sell a substantial asset it is reasonable for the company’s officers to check the company’s records in respect of that asset to ensure that the solicitor is provided with accurate and important details about the asset in question. Her Honour also found however that where the client is new

to the solicitor, is giving instructions on an urgent matter of high value and importance, is stressed and distracted (as Ms Phillips was found to have been) the solicitor should bear greater responsibility to elicit this information.

Maddocks therefore had to bear 80% of the loss assessed, around $13m.

CONCLUSION The judgment, although lengthy (some 736 paragraphs), will repay careful consideration by all practitioners especially as regards the duties imposed on practitioners dealing with urgent commercial transactions.

One wonders whether the same result would have been reached by the Court had Maddocks’ enquiry regarding any sidedeed been more directly worded and sent earlier than the “last minute”. I suspect that even if the Court found a breach of duty in those (postulated) circumstances, the assessment of the contributory negligence would have been much less favourable to the client company.

The risk management lessons are therefore to seek full instructions in clear and direct terms as soon as possible.

Practitioners who are insured with the SA Professional Indemnity Insurance Scheme have access to a number of document packages — including documents relating to Commercial Leasing and the Acquisition and Sale of Businesses — which provide a good starting point when seeking instructions in commercial matters. Risk Management Practice Packages (lawsocietysa.asn.au) July 2022 THE BULLETIN

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FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – DE FACTO THRESHOLDS – “BREAKDOWN” OF A DE FACTO RELATIONSHIP IS THE TRIGGER POINT FOR JURISDICTION – AGGREGATE OF CIRCUMSTANCES SUPPORTED CONCLUSION THAT RELATIONSHIP HAD BROKEN DOWN

I

n Fairbairn v Radecki [2022] HCA 18 (11 May, 2022) the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia.

The New South Wales Trustee & Guardian (Trustee) as case guardian for the de facto wife sought orders for sale of a home to pay the wife’s care accommodation. The de facto husband argued the Court lacked jurisdiction as the parties had not separated.

While the trial judge agreed; the Full Court found that decision contained error as it imputed an intention to separate rather than assessing indicia.

The High Court held (from [29]): “A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer ‘have a relationship as a couple living together on a genuine domestic basis’. …

[30] … It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the … Court to be seized of jurisdiction to make a property settlement order … It would make no sense for … jurisdiction to arise before a de facto relationship had ended … (…)

[33] … [C]ohabitation of a residence … is not a necessary feature of ‘living

34 THE BULLETIN July 2022

together’. … Two people … may not reside in the same residence, but nonetheless be in a de facto relationship …

[34] The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship … but it could not … be determinative of that issue. … (…)

[46] Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the ‘necessary or desirable adjustments’ in support of the appellant and … acted contrary to her needs. ( … ) [47] In aggregate, these circumstances support the conclusion that there had been a breakdown in the parties’ de facto relationship …”

The appeal was allowed, with the appeal to the Full Court dismissed.

PROPERTY – COURT ERRED IN CONSIDERING HUSBAND’S DEFECTIVE DISCLOSURE WHEN ASSESSING CONTRIBUTIONS – INCLUDING CAPITALISED VALUE OF PENSION IN ASSET POOL AND CONSIDERING PENSION UNDER S 75(2) IS “DOUBLE DIPPING” In Mayhew & Fairweather [2022] FedCFamC1A 53 (12 April, 2022) the Full Court (Austin, Tree and Gill JJ) heard a husband’s appeal from orders of Wilson J for a 60:40 division in the wife’s favour after a relationship of between 34 and 36 years.

The husband’s appeal grounds included the treatment of his alleged defective disclosure and double counting

of his pension, where its capitalised value was included in the asset pool, but also considered as part of the wife’s s75(2) adjustment.

As to the husband’s defective disclosure, the Full Court said (from [13]): “… [I]n order to be considered under s 79(4)(a) or (b) of the Act, the defective disclosure must relate to a direct or indirect, financial or nonfinancial, contribution ‘to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them’…

[14] The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property … or under s 75(2)(o) of the Act. … [W]e are satisfied that by factoring it in to the analysis of contributions, the primary judge erred … ” As to the treatment of the husband’s pension, the Full Court continued (from [23]): “ … [I]t seems inconceivable that the quantum of the income stream was not expressly taken into account in arriving at its notional capital value, and its assurance likely was reflected in the capitalisation rate applied to the income stream, and hence it was already valued by reference to that feature. … [E]ven if that were not so … how his Honour could have been satisfied that some aspect or quality of the pension had not already been taken into account in arriving at its notional value, is completely unclear. To thus use both the income stream and its assurance as the justification … for an adjustment of 2.5 per cent … is to ‘double dip’ and thus to err.”

FAMILY LAW CASE NOTES

The appeal was allowed and the case remitted for rehearing.

CHILDREN – ARTIFICIAL CONCEPTION PROCEDURE – RESPONDENT LACKED STANDING TO BRING A PARENTING APPLICATION WHERE SHE AND THE DECEASED MOTHER WERE NOT IN A DE FACTO RELATIONSHIP In Wickham & Toledano [2022] FedCFamC1F 32 (3 February, 2022) Carew J heard an application for parenting orders by the maternal aunt and her husband in respect of twins born in 2021 where their birth mother died in that year.

The respondent (Ms B) was the former partner of the late mother. After a short engagement and at least five separations, their same sex relationship ended in April, 2021.

The interim issue before the Court was Ms B’s standing to apply for a parenting order.

It was agreed that per s 60H(1) of the Act, the respondent was a parent if she and the birth mother were in a de facto relationship at the time of carrying out of the artificial conception procedure which resulted in the birth of the children ([20]).

Carew J said (from [21]): “Whether or not Ms B and the respondent lived in a de facto relationship at the time the artificial conception procedure was carried out is a question of fact … (…)

[51] … [T]he relationship between the respondent and Ms B was short. … It was an intense and volatile relationship. They maintained their own residences despite

Ms B spending time, including overnights, at the respondent’s residence … They owned no property together. They had no joint accounts. …

[52] It could not be said that [at the time of the procedure] … that they had a relationship as a couple living together on a genuine domestic basis.

[53] Accordingly, I find that the respondent is not a parent within the meaning of the Act.” The Court then found (at [75]) that Ms B was not a person concerned with the care, welfare and development of the children within the meaning of s 65C(c) (for reasons including that she had “no relationship with the children”), such that her application was dismissed and the case was otherwise listed for a final hearing.

PROPERTY – INTERIM ORDERS TO SELL THE FORMER MATRIMONIAL HOME ARE NOT FINAL ORDERS SOLELY BECAUSE THEY RENDERED THE WIFE’S FINAL APPLICATION OTIOSE – WIFE RETAINED AN ABILITY TO PURCHASE THE HOME In Kartal & Templeman [2022] FedCFamC1A 46 (4 April, 2022), Austin J, heard a wife’s application for leave to appeal against interim orders made by a magistrate in the Magistrates Court of Western Australia for the sale of the former matrimonial home.

The parties had significant debt.

The wife sought interim orders for the property to be transferred into her sole name so that she could re-finance the debt. The husband sought the interim sale of the property and for the debts to be discharged from the proceeds of sale. The

magistrate made orders in the terms of the husband’s application. The wife appealed.

Austin J said (from [17]): “The wife considers the sale orders are final because their execution would preclude her from pressing her application for orders granting her sole proprietorship of the former family home at … trial.

While it is true the sale orders render otiose her application for final relief … that consequence does not convert interlocutory orders into final orders.

[18] The orders are not ‘final’ because they do not exhaust the Court’s statutory power and are not dispositive of the parties’ respective applications … (…)

[22] … If the former family home is sold according to the orders, nothing stops the wife from purchasing the property on the open market with the aid of the same financial assistance she had envisaged … to … acquire the husband’s one-half share. … (…)

[59] … The wife’s application was to stop the sale by acquiring exclusive legal title in the property. Her aim was to preserve the home for herself …

[60] What then … brought the wife’s application for an interim alteration of property interests within legal principles?

Why should she have been able to preempt the outcome of the adjustment proceedings … by acquiring exclusive title … ? Why should the husband have been deprived of access to his share of the net equity … ? These were questions she did not answer … ” The wife’s application was dismissed with costs. B July 2022 THE BULLETIN

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BOOKSHELF

SPECIAL LEAVE TO APPEAL Abstract from Federation Press This much anticipated third edition of Special Leave to Appeal for the first time incorporates the significant 2016 amendments to Part 41 of the High Court Rules 2004 (Cth). These amendments established, among other things, that

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With reference to over 2000 decisions and relevant statutory provisions, this work is an invaluable aid to preparing to make or meet an application

D O’Brien 3rd ed The Federation Press 2021 HB $180

LUMB, MOENS & TRONE THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA ANNOTATED Abstract from LexisNexis This work provides commentary and analysis focusing on the most important decisions concerning the Commonwealth Constitution. In addition to the detailed annotations of each provision of the

Constitution, the Introduction provides a clear discussion of other important constitutional concepts such as federalism, the separation of powers, judicial review and proportionality.

The tenth edition has been updated to incorporate the most recent case law and statutory amendments

J Trone 10th ed LexisNexis 2021 PB $161

ETHICS AND PROFESSIONAL PRACTICE IN FINANCIAL PLANNING Abstract from LexisNexis

M Cull LexisNexis 2021 PB $137

Ethics and Professional Practice in Financial Planning is a comprehensive resource that brings together different aspects of ethics that comprise compulsory education requirements for both existing and new entrants to financial planning. It discusses the application to financial

planning of ethical development, theories and decision frameworks. Real-life scenarios, such as Storm Financial and other cases handled by the Australian Financial Complaints Authority (AFCA), illustrate the hard consequences when things go wrong and the role that process plays in ensuring and demonstrating ethical behaviour

ANNOTATED FRANCHISING CODE OF CONDUCT Abstract from LexisNexis Annotated Franchising Code of Conduct provides some interpretative guidance based on the limited but growing number of decided cases, international jurisprudence where applicable, S Giles 2nd ed LexisNexis 2021 PB $163

36 THE BULLETIN July 2022

and the author’s practical experience over 40 years of legal practice. This 2nd edition is an annotation of Compilation 3 of the Code, and is current as at 1 July, 2021. An essential guide to Australian franchising for lawyers and nonlawyers alike.

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER Homeless Legal Donor Circle Impact Update 4 May 2022 he President, Justin Stewart-Rattray attended a presentation by a Panel (headed by the Honourable John Sulan QC) as to impact of the Homeless Legal Service on homelessness in South Australia.

T

Meeting with the Aboriginal Legal Rights Movement 11 May 2022 The CEO of the Aboriginal Legal Rights Movement (ALRM), Mr Chris Larkins spoke about issues currently being experienced by the ALRM at a meeting with Justin Stewart-Rattray and Stephen Hodder. The issues included funding to the ALRM and legal aid services generally; court services in remote areas and conflicts; and the importance to Aboriginal children of raising the age of criminal responsibility.

Leader of the Opposition and Shadow Treasurer 14 June 2022 At the invitation of the leader of the Liberal Party, David Speirs and the Shadow Treasurer, Matt Cowdrey, Justin StewartRattray and Paul Black (Co-Chair of the Accident Compensation Committee) met with these members of the Opposition to discuss the Society’s submission in relation to the Return to Work (Permanent Impairment Assessment) Bill 2022.

Joint Rules Advisory Committee 16 June 2022 Justin Stewart-Rattray, Alex Lazarevich (Chair of the Civil Litigation Committee) and Philip Adams represented the Society at a meeting of the Joint Rules Advisory Committee. Various potential amendments to the Uniform Civil Rules were discussed, along with a proposal by the Society that a Commercial and Expedited Commercial List be introduced (to be further considered by JRAC) and additions to the draft Uniform Special Statutory Rules 2022 drafted by the Director of Ethics and Practice and proposed by the Society, in relation to the freezing of funds in legal practitioners’ trust accounts under Court Order.

Aboriginal Lands Parliamentary Standing Committee 17 June 2022 Representing the Society in an appearance before the Aboriginal Lands Parliamentary Standing Committee, Justin Stewart-Rattray and Richard Bradshaw (Co Deputy Chair of the Aboriginal Issues Committee) spoke to the Society’s written submission, which had been informed by the Aboriginal Issues Committee.

Quarterly Law Council Directors’ and associated meetings 18 – 19 June 2022 Justin Stewart-Rattray and Stephen Hodder variously represented the Society at quarterly meetings of Directors of the Law Council of Australia (LCA), CEOs of

Law Societies, Joint CEOs (Law Society and Bar Association), Law Society Presidents and the Conference of Law Societies, which were held in Darwin. Dr James Popple, newly appointed CEO of the LCA, was introduced to the Constituent Body representatives and attended various meetings. Matters discussed included the production by the Law Society of NSW of a new edition of the profile of solicitors; the LCA’s Equitable Briefing Policy; coercive control trauma informed practice; bystander training; unconscious bias training; and anti-money laundering (the view of the new Federal Government on the inclusion of the legal profession not yet known).

ANU Panel on Facial Recognition 27 June 2022 The President-Elect, James Marsh stepped up at very short notice (in place of a very ill Justin Stewart-Rattray) as a Panel Member at a forum on the use of facial recognition technology, which was convened by the Australian National University. The Adelaide City Council’s consideration as to whether to purchase facial recognition software for use with new cameras to be installed in Rundle Mall provided the impetus for the forum.

Shortly before the forum, the Council voted against doing so. The Society noted the need for appropriate legislation, restrictions on the purposes for which the technology could be used, data security and rights of review. B July 2022 THE BULLETIN

37

GAZING IN THE GAZETTE

3 MAY 2022 – 2 JUN 2022 ACTS PROCLAIMED Disability Inclusion (Restrictive Practices—NDIS) Amendment Act 2021 (No 18 of 2021) Commencement: 30 May 2022 Gazetted: 12 May 2022, Gazette No. 29 of 2022 South Australian Public Health (COVID-19) Amendment Act 2022 (No 1 of 2022) Commencement: 24 May 2022 Gazetted: 24 May 2022, Gazette No. 33 of 2022

ACTS ASSENTED TO Nil

APPOINTMENTS Magistrates Court Judicial Registrar on a part-time basis for a term of seven years commencing on 5 May 2022 and expiring on 4 May 2029 Timothy David Griffin Jeanette Barnes Gazetted: 5 May 2022, Gazette No. 26 of 2022 Master of the District Court of South Australia On an auxiliary basis From 12 May 2022 to 30 June 2022 John Gerard Fahey Gazetted: 5 May 2022, Gazette No. 26 of 2022 Magistrate Magistrate of the Youth Court of

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

South Australia On an auxiliary basis From 12 May 2022 to 30 June 2022 John Gerard Fahey Derek Yorke Nevill Sprod Yoong Fee Chin From 16 July 2022 to 30 June 2023 Teresa Marie Anderson Gazetted: 5 May 2022, Gazette No. 26 of 2022 Supreme Court of South Australia Puisne Judge effective from 2 June 2022 His Honour Judge Adam Patrick Kimber Gazetted: 2 June 2022, Gazette No. 35 of 2022

from 2 June 2022 until 28 April 2023 Melanie Kate Burton Gazetted: 2 June 2022, Gazette No. 35 of 2022 Cross-Border Magistrate for a term of five years commencing on 2 June 2022 and expiring on 1 June 2027 Youth Court of South Australia Ancillary Magistrate From 2 June 2022 Matthew Alexander Holgate Gazetted: 2 June 2022, Gazette No. 35 of 2022

RULES

Magistrate South Australian Civil and Administrative Tribunal Member Youth Court of South Australia Ancillary Magistrate South Australian Civil and Administrative Tribunal Member From 2 June 2022 Melanie Kate Burton Gazetted: 2 June 2022, Gazette No. 35 of 2022 Police Disciplinary Tribunal Panel Member: Protective Security Officers Disciplinary Tribunal Panel Member:

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.

REGULATIONS PROMULGATED (3 MAY 2022 – 2 JUNE 2022) REGULATION NAME

REG NO. DATE GAZETTED

Harbors and Navigation (Fees) Amendment Regulations 2022

20 of 2022

12 May 2022 Gazette No. 29 of 2022

Motor Vehicles (Fees) Amendment Regulations 2022

21 of 2022

12 May 2022 Gazette No. 29 of 2022

Motor Vehicles (National Heavy Vehicles Registration Fees) Amendment Regulations 2022

22 of 2022

12 May 2022 Gazette No. 29 of 2022

Rail Safety National Law National Regulations (Reporting Requirements) Amendment Regulations 2022

23 of 2022

26 May 2022 Gazette No. 34 of 2022

Native Vegetation (Repeal of Regulation 23A) Amendment Regulations 2022

24 of 2022

26 May 2022 Gazette No. 34 of 2022

Fair Work (General) (Declared Employer) Amendment Regulations 2022

25 of 2022

2 June 2022 Gazette No. 35 of 2022

38 THE BULLETIN July 2022

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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.

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CONSULTING ACTUARIES

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.

Marita Bajinskis

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne

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.

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

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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.

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

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F R I D AY

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A U G U S T

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